Paid Internships Slowly Arriving in New York Non-Profit Art Scene

PAID-mugAs the social, economic, gender and racial injustice of unpaid internships continues to grow, some non-profit arts institutions in New York are taking steps to change their policies and pay their interns.

One year ago, the arts blog Hyperallergic announced their own paid internship program, noting that their interns had previously been provided only with a “small daily honorarium and paid as contributors for their blog posts.” In March of this year, the nonprofit public art organization Creative Time announced a new pilot program that will fund ten paid Summer 2015 internships. Meanwhile the Museum of Modern Art (MoMA) has expanded its paid internship programs after cutting back on paid opportunities for several years running. These are small but important steps towards transforming a cultural industry that is heavily reliant on unpaid or low-paid work by art workers at any stage in their careers, including interns, educators, administrators, artists, critics, preparators, curators, designers and writers.

While the conversation might be changing, it is worthy to note that just a few years ago, most arts organizations, from galleries to museums to non-profits to journals, seemed content to accept the idea that interns were privileged students whose labor was disposable. As Hyperallergic noted, “We’re hopefully creating opportunity for a wider range of students and emerging writers and photographers.” The fact that the journal is calling for a “wider range” of voices indicates that the discourse has been narrow. By taking steps of paying interns today, the industry is starting to acknowledge that the art world is fueled by policies that exclude those who cannot afford to work for free. It is safe to state that this exclusion hits people of color disproportionately.

Budgeting is one of the main channel institutions communicate with their funders and signal their priorities. For example, Creative Time made sure to thank individual funders for bankrolling their new paid internship program. In order to start paying their interns, these institutions must initiate honest dialogues with their funders about the reality of this exclusion, and the benefits of paid internships to the cultural landscape at large.

Paying interns is only the first step in an issue where many crucial questions still remain. Will the interns be learning from their experience? How does the payment / stipend compare to the institutions’ operating budget, especially in a city like New York? How should an internship be valued in comparison to a job? Is it possible to establish an industry-wide practice where intentional decisions are made to create a workplace that is intersectionally aware on issues of race, class and gender?

#payinterns #internlabor #fairinternships #equalinternships

Labor Rights of Interns to Be Argued in Federal Appeals Court

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On Friday, January 30, the movement towards eliminating exploitative unpaid internships will take another significant step forward. Lawyers representing interns, employers, and, possibly, other interested parties will appear before a panel of judges from the U.S. Court of Appeals for the Second Circuit. The court is considering interlocutory appeal questions stemming from two lawsuits brought by former unpaid interns who asserted that federal and state labor law obliged their employers to pay them at least the mandated minimum wage. The decision the court renders will undoubtedly have profound impact for interns, employers, colleges, the labor market, the economy, and the movement to improve the working conditions for interns across the country.

Open to the Public (it is advisable to arrive early, as there can be a wait to get through building security).

Where: Room 1703, Thurgood Marshall Federal Courthouse, 40 Foley Square, Manhattan.

When: 10 a.m., Friday, January 30, 2015.

About the Cases and the Law Under Review

Both cases, like the dozens of others that have been filed in their wake, largely turn on how a Supreme Court decision from 1947 applies today to the many employers who appear to believe that categorizing an employee as an “intern” is sufficient to relieve such employers of the obligation to pay wages for the labor their organizations use to succeed.

In short, the Supreme Court’s 1947 decision in Walling v. Portland Terminal Co. determined that bona fide trainees are not to be considered employees under the Fair Labor Standards Act (FLSA), the New Deal act establishing a federal minimum wage and time-and-a-half for overtime, among other rights and protections. The U.S. Department of Labor (USDOL)—which is responsible for implementing the FLSA and is actively supporting the interns in these lawsuits—has long asserted that Portland Terminal holds that a strict six-element test should be applied when considering would-be training programs, and that failure to satisfy any element of the test means that the trainee in question is an employee who is thereby entitled to all of the rights and protections provided by the FLSA. In April 2010, the USDOL issued a Fact Sheet (#71) specifically explaining how that test would apply to contemporary unpaid internships. New York State’s Department of Labor applies an even stricter 11-element test, which it explains it its own fact sheet. (Note: Federal and state labor law also provides for unpaid bona fide volunteers, which may apply to internships at not-for-profit organizations or government agencies that nevertheless do not satisfy the trainee test.)

The USDOL’s strict reading of the six-element test was upheld in June 2013, when the federal district court judge in Glatt v. Fox Searchlight Pictures, Inc., ruled in favor of the interns. Fox’s appeal of that decision is one of  two now being considered by the Second Circuit.

The other appeal being heard on January 30 was filed on behalf of interns in Wang v. Hearst Corp. Unlike the judge in Glatt, the district court judge in Wang did not apply the USDOL’s strict test. Instead, the judge applied a “primary beneficiary” test favored by employers who want to be excused from the obligation to compensate for labor when, according to inherently subjective standards, an intern “benefits” more than an employer from such workplace arrangements.

To many legal analysts, the Second Circuit’s resolution of the question as to which test should apply (the USDOL’s strict six-element test, the looser primary beneficiary test, or a new test that the Second Circuit develops) will likely have far-reaching implications for internship programs nationwide. It is noteworthy that the USDOL has submitted amicus curiae (friend of the court) briefs on behalf of the interns in both cases, thoroughly analyzing for the Second Circuit’s consideration the legal reasoning justifying their strict test. [Update: An attorney from the U.S. Department of Labor will also support the interns by arguing in person before the court. See below.]

About the Oral Arguments on January 30

The plaintiff-interns in both Glatt and Wang will be represented by attorney Rachel Bien, Partner and Co-Chair of the Class & Collective Action Practice Group at the firm Outten & Golden. Bien represented the plaintiff-interns of both cases in the court below, the U.S. District Court for the Southern District of New York. Bien appeared on the panel Intern Labor Rights organized at the Housing Works Bookstore Café in October 2013, “Will Work for Free: Breaking Down the Intern Economy,” and has discussed the topic on MSNBC’s “All In with Chris Hayes” and at Yale Law School’s 2014 Rebellious Lawyering (RebLaw) Conference, among other outlets. For both cases combined, Ms. Bien will argue for approximately 30 minutes. [Update: In Wang Ms. Bien will argue for approximately 15 minutes; in Glatt she will argue for approximately 12 minutes and an attorney from the U.S. Department of Labor will argue for approximately 8 minutes.]

The Hearst Corporation will be represented by in-house counsel. They will have approximately 15 minutes to present their arguments.

Fox Searchlight Pictures and Fox Entertainment Group will be represented by attorney Neal Katyal, professor of law at Georgetown University Law Center, former Acting Solicitor General of the United States, and partner at the firm Hogan Lovells. Katyal, who is experienced arguing before the U.S. Supreme Court, was brought on to the case specifically for this appeal. For more on the context of Fox’s hiring such a prominent lawyer, see this recent article by Reuters, “The Echo Chamber,” which situates Katyal among an increasingly select handful of lawyers who regularly appear before the Supreme Court and which expresses dismay at the pro-business implications of the trend. Katyal will have approximately 15 [Update: 20] minutes to present Fox’s arguments.

During the arguments, observers might develop a sense from the judges’ questions of what legal issues they consider most important, what lines of reasoning they find less or more persuasive, what questions remain unresolved, et cetera. It is unlikely that the court’s eventual decision will become self-evident during the arguments. Instead, conclusion of the oral arguments marks the beginning of an indeterminate waiting period. Weeks or months afterwards, the court will hand down its decision and the legal ramifications for the intern labor market will become another degree clearer, even if still requiring fundamental improvement and ongoing advocacy.

[Update: The three-judge panel that will be hearing the arguments has been announced. It will be composed of Circuit Judges John M. Walker, Jr., Dennis Jacobs, and Richard C. Wesley. All three were appointed to the Second Circuit by Republican presidents, the former two by George H.W. Bush and the latter by George W. Bush.]

Supporting Documents

The following briefs have been submitted to the Second Circuit for consideration in the interlocutory appeals from Wang v. Hearst Corp. and Glatt v. Fox Searchlight Pictures, Inc., being heard in tandem. This is not necessarily a complete account of all briefs that have been filed in each case.

Wang v. Hearst Corp.

Brief for Plaintiffs-Appellants (the interns).

Brief for Defendant-Appellee (Hearst).

Amicus curiae (friend of the court) brief for the Secretary of Labor, U.S. Department of Labor, in support of Plaintiff-Appellants.

Amici curiae (friends of the court) brief for the Economic Policy Institute; National Employment Law Project; National Employment Lawyers Association; Writers Guild of America East; Ross Perlin; and Professor David Yamada in support of Plaintiff-Appellant.

Glatt v. Fox Searchlight Pictures, Inc.

Brief for Defendants-Appellants (Fox).

Brief for Plaintiffs-Appellees (the interns).

Amicus curiae brief for the Secretary of Labor, U.S. Department of Labor, in support of Plaintiff-Appellees.

Amici curiae brief for the Economic Policy Institute; National Employment Law Project; National Employment Lawyers Association; Writers Guild of America East; Ross Perlin; and Professor David Yamada in support of Plaintiff-Appellees.

Amici curiae brief for the American Federation of State, County and Municipal Employees, AFL-CIO; Communications Workers of America, AFL-CIO; Service Employees International Union; and United Food and Commercial Workers International Union, AFL-CIO in support of Plaintiff-Appellees.

Amici curiae brief for the Chamber of Commerce of the United States of America and the California Employment Law Council in support of Defendants-Appellants.

Amici curiae brief for the American Council on Education; American Association of State Colleges and Universities; Association of Public and Land-grant Universities; American Association of Community Colleges; College and University Professional Association for Human Resources; and NASPA: Student Affairs Administrators in Higher Education in support of “Neither Party” (effectively in support of Defendants-Appellants).

Note: Information in this post is subject to change, differing interpretation, and even unintentional error.

What’s Happening With Intern Rights?

ILR_YearEnd2012_Cover-03The past few weeks have seen a lot of activity in the world of intern advocacy!

NBCUniversal agreed to pay $6.4 million in the largest settlement deal yet in response to a class action lawsuit brought forth by former unpaid interns. This is obviously a huge win, not only for those interns, but for interns across the media and entertainment industry whose employers must no longer ignore the consequences of flouting the labor laws.

While legal pressure has forced some of the largest and most blatant violators to pay up, many smaller companies are beginning to revisit their own practices as well. Public pressure has encouraged a small, but very well renowned design agency, Sagmeister & Walsh, to announce a change in their internship policy!

We’ve continued our collaborative efforts with NMASS in demanding the NY Department of Labor actually do its job and end wage theft against workers across all sectors of the economy. Columbia University Democrats invited activists and allies to a panel that addressed issues with the current intern economy. And a new organizing collective, Intern Worker Alliance, hosted a public meeting about ways interns can organize in their workplaces.

If you’d like to get involved and are in the New York City area, we will be meeting weekly on Monday evenings in Manhattan. Email us for specific time and location at intern.labor.rights@gmail.com. And help us fight for fairness in the intern economy!

Unpaid Workers Unite! Biggest Rally Against Wage Theft Yet, Next Wednesday, October 15, 9am, NYC.

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Where:
New York State Department of Labor, 75 Varick Street, New York, NY 10013, Map
When: Wednesday, October 15, 9am

Join Intern Labor Rights at the as we stand side-by-side with workers from the Indus Valley restaurants, the National Mobilization Against Sweatshops, the Chinese Staff & Workers Association, the Flushing Workers Center, the National Center for Law and Economic Justice and the Coalition for a Real Minimum-Wage Increase to tell Governor Andrew Cuomo: Enforce the Labor Law!

This will be the last rally before the November 4th election and the biggest one of all so if you’ve been unable to attend the previous monthly rallies, this is the one to make.

Each year in New York State tens of thousands of young people take on unpaid internships, hoping and believing that they will gain the training necessary to get jobs and begin their careers. The vast majority find themselves untrained and exploited. They are the victims of Wage Theft!

The New York State Department of Labor’s own guidelines on unpaid internships at For-Profit Businesses state that the vast majority of these interns are workers who have been misclassified as trainees. The guidelines say that the New York State Minimum Wage Act and Wage Orders and the federal Fair Labor Stands Act require all workers to be paid at least a minimum wage. Yet the Department of Labor does nothing to hold businesses accountable – and many of them are large, profitable multi-national corporations.

Governor Cuomo! Enforce the Labor Law!
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Governor Cuomo, Enforce the Labor Law!

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On September 17, 2014 Intern Labor Rights joined workers at a rally calling for the New York State Department of Labor to enforce its own guidelines to protect workers from wage theft.

Join us at the next monthly protest! Details at intern.labor.rights@gmail.com

The following is a transcript of ILR’s public statement at the rally:

We are proud to stand side by side with all of you, including workers
from the Indus Valley restaurant,
from the National Mobilization Against Sweatshops,
from the Chinese Staff & Workers Association,
from the Flushing Workers Center,
from the National Center for Law and Economic Justice,
from the Coalition for a Real Minimum-Wage Increase,
and all the other groups and workers who have turned out today!

Each year in New York State tens of thousands of young people take on unpaid internships, hoping and believing that they will gain the training necessary to get jobs and begin their careers. The vast majority find themselves untrained and exploited. They are the victims of Wage Theft!

Governor Cuomo! Enforce the labor law!

I’m holding here in my hand a copy of the New York State Department of Labor’s own guidelines on unpaid internships at For-Profit Businesses.

What do the guidelines say?

They say that the vast majority of these interns are workers who have been misclassified as trainees.

What do the guidelines say?

They say that the New York State Minimum Wage Act and Wage Orders and the federal Fair Labor Stands Act require all workers to be paid at least a minimum wage. Yet the Department of Labor does nothing to hold businesses accountable – and many of them are large, profitable multi-national corporations.

Governor Cuomo! Enforce the labor law!

Recently, a young woman sued the David Letterman Show for back wages she was owed for the time she worked unpaid on his television show. This week, she withdrew her lawsuit.

Is that because she wasn’t owed back wages? No! She earned and deserves those wages.

She withdrew because she was frightened and intimidated. People were attacking her online.

How is it that an individual worker can be allowed to be intimidated simply for asking for the wages she earned? It’s because the New York State Department of Labor doesn’t step up to enforce the law on workers’ behalf.

Governor Cuomo! Enforce the labor law! Investigate the David Letterman Show. Make Letterman pay the back wages of all his unpaid interns!

Last year here in Manhattan, Federal Judge William H. Pauley III of the United States District Court in the Southern District of New York, ruled on behalf of a group of unpaid interns who worked on the movie “Black Swan.” It was a big hit, raking in hundreds of millions of dollars in revenue yet some of the workers on the movie were not paid for their hard work.

I’m holding a copy of the judge’s ruling here in my hand. Here’s some of what Judge Pauley said: The plaintiffs “were classified improperly as unpaid interns and are ‘employees’ covered by the Fair Labor Standards Act and New York Labor Law.” Judge Pauley’s ruling is clear and concise. According to his ruling, most unpaid interns are owed at least the minimum wage.

That ruling was made over a year ago. Judge Pauley says it applies to the New York Labor Law.

Where is the New York State Department of Labor? Missing in Action!

Governor Cuomo! Enforce the labor law!

View more images from the rally here.

Wednesday September 17th at 9am! Help NMASS Hold the NYS DoL Accountable for Wage Theft!

Join us and our friends at NMASS (National Mobilization Against Sweatshops) again this Wednesday, September 17th at the NYS Department of Labor on 75 Varick St in Manhattan! The rally begins at 9AM.

Demand that the governor and the DoL enforce the labor laws and put a stop to widespread wage theft that cripples working people all over the state!

Join us for an Unpaid Internships Panel in Washington, DC on September 2nd

Photo via Architect of the Capitol

Photo via Architect of the Capitol

What does the challenge against unpaid intern labor mean for Washington, D.C.?

The unpaid intern labor market in Washington, D.C., is distinct. Unpaid interns here likely represent a greater share of the labor force than in any other American city. They are also disproportionally situated in not-for-profit organizations and government agencies, in keeping with the D.C. economy as a whole. Combined, these two characteristics have the effect of institutionalizing a practice that is fundamentally flawed.

While some here are aware of the internship lawsuits alleging wage theft in the for-profit sector, the common perception in D.C. seems to be that unpaid internships in the public or not-for-profit sectors are unproblematic, that “volunteering” in either is inherently both legally permissible and socially laudable. Eric Glatt, plaintiff in the landmark Glatt v. Fox Searchlight Pictures Inc. case contends that labor law is not as forgiving as many assume, and that the negative effects of normalizing this form of wage theft—including perpetuating gender, race, and class inequities—are no less real in public service sectors than in the private sector. 

If you are in the DC area, please join Eric, and other allies of the intern labor rights movement, for a lively discussion from 6:00 – 8:00pm on September 2nd, 2014 as part of the Bread and Roses series at the Busboys and Poets on 5th & K.

Join us on Sunday, July 27, 5:30pm

New to Intern Labor Rights? Interested in the role of internships in the nonprofit sector? You’re invited to our next meeting!

Want to share your thoughts and experiences of the intern economy? Want to hear what we’ve been working on and what’s currently in the works? Maybe you came to our Happy Hour last week, or saw us join NMASS (National Mobilization Against Sweatshops) outside the New York State Department of Labor, calling for a greater crackdown on wage theft.

Whatever your interest, we hope to see you at the Goethe Institut’s Wyoming Building, 5 E3rd St (corner of Bowery and E 3rd St, not the main Goethe Institut building), at 5:30PM on Sunday, July 27.

We recently held a retreat to focus on the problematic role of unpaid internships in the mission-driven nonprofit sector. So if you have some thoughts and experiences specifically about that, please come and share!

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Rally at NYS Department of Labor in Manhattan Tomorrow!

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ENFORCE THE LAW!

Rally for Increased Enforcement of Wage Theft Laws New York State Department of Labor, 75 Varick Street on Wednesday, July 16, 9AM.

Each summer in New York tens of thousands of young people take on unpaid internships that, by the New York State Department of Labor’s own guidelines http://www.labor.ny.gov/formsdocs/factsheets/pdfs/p725.pdf, are required to be paid positions. Yet the Department of Labor does nothing to hold businesses – many of them large, profitable multi-national corporations – accountable.

Join Intern Labor Rights http://www.internlaborrights.com/, NMASS (National Mobilization Against Sweatshops) http://www.nmass.org/, Coalition for a Real Minimum-Wage Increase http://www.realminimumwage.org/; and other groups as we rally in support of increased enforcement of the wage theft laws that protect all working people.

Let us know you’re coming by clicking here https://www.facebook.com/events/271143566402540/. We’ll be there, wearing our “Pay Your Interns” t-shirts. And remember – raising the minimum wage means nothing if the law isn’t enforced.

Join Us For Intern Happy Hour on Thursday, July 17th!

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It’s the middle of the summer. It’s hot. And your internship might be illegal.

Come let us know how it’s going. Connect with other interns, ask about how you can fight against illegal, exploitative internships, or just vent in a casual environment! Join us at Intern Happy Hour next Thursday, July 17th at 6:30 pm at Brad’s on Waverly Place near NYU.

Are you coming? Let us know on Facebook.