Intern Labor Rights in the Park!

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RAIN LOCATION: Due to today’s rainy weather we are moving our meeting to Think Cafe at 248 Mercer Street, just a couple of blocks from Washington Square Park. See you at 6:00pm! Can’t locate us? Call 718.344.4820

Join Intern Labor Rights in Washington Square Park in Manhattan for an open-air meeting this Tuesday, August 11, 6:00-7:30pm. We’ll be sitting just to the west of the arch. Just look for the “Pay Your Interns!” sign. Can’t locate us? Call 718.344.4820. Our meetings are informal and we are always happy to welcome new people.

See you Tuesday!

Summer Intern Fact Check

01ILRFactcheckColorASchool’s out and summer intern season is in. Meanwhile, the Second Circuit Court of Appeals has lost its marbles in the latest ruling in the ongoing “Black Swan” intern lawsuit. Time for a fact check.

Each week this summer, Intern Labor Rights will be publishing a fact about internships in the form of an image designed to share on social media platforms. We’ve collected our facts by using a fine-tooth comb to pour over studies, surveys, a book, news articles and more, to glean the salient points that get at the heart of what is wrong about the current state of internships and especially unpaid internships. We promise – no intern had to wield that comb!

Keep your eyes out and share our facts. To share an image now, click here.

You’ll be seeing the images here:

Facebook: InternLaborRights
Twitter: @InternLabor
Pinterest: @internlabor
Instagram: @internlaborrights

INTERN LABOR RIGHTS RESPONDS TO THE SECOND CIRCUIT COURT OF APPEALS

Pay Your Interns.

The Second Circuit Doubles Down on Exploitative Internships in the “Black Swan” Intern Case, Fabricating New Labor Rules While Rejecting U.S. Supreme Court Precedent.

Last Thursday the Second Circuit of the United States Court of Appeals vacated a Federal District Court’s 2013 ruling that employers must derive “no immediate advantage from the activities of the intern.” This latest ruling in the Glatt et al. v. Fox Searchlight Pictures case, known as the “Black Swan” intern case, weighs heavily in favor of employers.

The Court disregarded the six-point test on legal internships set out by the United States Department of Labor in 2010, rejected United States Supreme Court precedent from a relevant 1947 case, Walling v. Portland Terminal Co., promulgated an entirely new set of legal rules based on a so-called “primary beneficiary test,” and raised the bar required to certify a class of workers, potentially closing the door on an effective legal strategy for exploited interns. Its misguided focus on “educational benefits” continues to perpetuate the exploitation of free student labor, exempting employers from any responsibility of payment as long as students are working for academic credit.

Intern Labor Rights sees the Second Circuit’s ruling as a direct attack on the central purpose of Fair Labor Standards Act (FSLA): that people must be paid at least a minimum wage for the work they do.

In a recent article published in Forbes Magazine, Boston University labor law professor Michael Harper stated that the reasoning behind the appeals court’s seven new criteria for evaluating unpaid internships “is made out of whole cloth.” Suffolk University law professor David Yamada concurred stating “All the factors they drew up were really without legal authority.” Yamada believes that the Second Circuit judges “apparently decided to invent something new here, which is surprising at the appellate level.”

Intern Labor Rights believes that the Second Circuit’s seven new criteria are arbitrary and fabricated to shift the burden of evidence in cases of exploitative internships away from employers and onto the backs of student workers. As Yamada stated in his recent blogpost on the ruling, “In practical terms, the decision invites private employers and universities to collaborate on schemes that (1) create unpaid internships; and (2) charge students tuition for the “privilege” of doing unpaid work.”

The Appeals Court stated “As our previous discussion of the proper test indicates, the question of an intern’s employment status is a highly individualized inquiry,” using the haphazard nature of existing internship programs to deny class certification. This ruling significantly raised the bar for class certification, arguing that each individual intern is essentially on their own, undermining the very notion of how class action functions in our legal system. The rejection also rewards employers for creating poorly run training programs that lack the unified standards required for a program to be considered part of an intern’s “formal education program” – one of the new criteria promulgated by the court.

The Court’s ruling works to legitimize unpaid internships “for school credit” as an alternative to waged compensation. This absurd, yet common practice has convinced many young people that paying thousands of dollars to universities somehow absolves for-profit corporations of their obligation to compensate for entry-level work. In fact, these collaborations between universities and employers not only extract more money from students by way of academic credits, but simultaneously avoid paying instructors, as they conveniently assume the student is receiving ‘training…similar to that which would be given in an educational environment” at the workplace. All this is taking place at a time when national student debt has reached $1.2 trillion.

NEXT STEPS

Intern Labor Rights stands in solidarity with Eric Glatt, Alexander Footman and the other plaintiffs in this case, who are some of the first interns to hold mega-corporations such as Fox Searchlight Pictures accountable for their exploitative practices. We would like to remind everyone that “Black Swan” earned over 300 million dollars while Glatt and Footman were paid nothing. We continue to stand by them and all unpaid interns as they fight through all legal channels available.

We also see a few silver linings.

First of all, the Second Circuit decision has now sent the Fox Searchlight case back to the District Court. Despite the difficulty of certifying a class of interns, there is a strong possibility the plaintiffs will ultimately prevail in their specific case. Among other implications, the new standards appear to suggest that for unpaid internships to comply with the federal Fair Labor Standards Act, they need to be well integrated into a formal educational program—a condition anyone familiar with the internship economy knows is rarely the case. While we firmly believe that all internships, including student-internships, should be paid whenever employers benefit from interns’ work, this ruling implies that thousands of unpaid internships held by college graduates are not in compliance with the law, including Glatt’s and Footman’s.

Secondly, the publicity this case has received has already sparked numerous lawsuits, resulting in millions of dollars in out-of-court settlements being allocated to former interns. These are major victories for student workers. Together they caused a sea change toward paid internships across multiple industries, notably entertainment and journalism, along with some major arts institutions. It will be quite difficult for those employers to revert back to unpaid internships and to justify the “extent to which the intern’s work complements, rather than displaces, the work of paid employees.”

Finally, Intern Labor Rights recognizes that this ruling demonstrates the practical limits of working solely within the legal system to achieve justice for student workers. By removing many reasonable legal options from the list of steps available for student workers seeking redress from exploitative internships, the Second Circuit judges have booted the fight back into the realm of politics. That’s where the battle should be. We hereby call out the corporate greed that seeks to control our education and exploit a new generation of workers. We do not need the permission of judges, politicians, bosses, deans, or academic advisors to demand respect and fair compensation. Our voices will be heard loud and clear.

For details and commentaries on the Second Circuit ruling, see:

13-4478-cv (L) Glatt et al. v. Fox Searchlight Pictures, Inc. et al.
Why The Second Circuit Made A Flawed Decision In Upholding Unpaid Internships,” Susan Adams, Forbes Magazine, July 7, 2015.
Employers Have Greater Leeway on Unpaid Internships, Court Rules,” Noam Scheiber, New York Times, July 2, 2015.
Circuit Adopts Employer-Backed Intern Pay Standard,” Ben Bedell, New York Law Journal, July 6, 2015 (Registration Required).
Interns, Victimized Yet Again,” Ross Perlin, New York times, July 3, 2015.
U.S. Appeals Court deals setback to interns seeking to be paid for their work,” David Yamada, Minding the Workplace, July 2, 2015.

Top Eight Intern Cash Settlements

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A sea change is fundamentally reshaping the relationship between media businesses and their interns. Over $26 million in settlement agreements have recently been reported, resolving lawsuits filed by former interns claiming they were owed wages for their work. Meanwhile, other suits continue to be litigated while new suits continue to be filed. As the media industry is increasingly pressured to clean up its act, how long can it be before the rest of the intern economy follows suit?

Intern Labor Rights has identified the following settlements:

Viacom settlement for unpaid interns: $7.2 million.

NBCUniversal settlement for unpaid interns: $6.4 million.

Condé Naste settlement for unpaid interns: $5.8 million.

Warner Music Group settled with unpaid interns reportedly for $4.2 million.

Lionsgate settled with unpaid interns reportedly for $1 million.

ICM settled out of court with unpaid interns reportedly for $725,000.

Elite Model Management settlement for unpaid interns: $450,000.

PBS’ Charlie Rose Productions settlement for unpaid interns: $250,000.

Intern Labor Rights – Monday Meetings in the Park

Intern Labor Rights in the Park!

Intern Labor Rights – Monday Meetings in the Park.

Join Intern Labor Rights in Washington Square Park in Manhattan for an open-air meeting this Monday, June 29, 5:30-7pm. We’ll be sitting just to the west of the arch. Just look for the “Pay Your Interns” sign. Can’t locate us? Call 718.344.4820. Our meetings are informal and we are always happy to welcome new people.

See you Monday!

Join Us in the Park on Monday, June 22

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Join Intern Labor Rights in Washington Square Park in Manhattan for an open-air meeting this Monday, June 22, 5:30-7pm. We’ll be sitting just to the west of the arch. Just look for the “Pay Your Interns!” sign. Can’t locate us? Call 718.344.4820. Our meetings are informal and we are always happy to welcome new people.

See you Monday!

SUMMER FILMING: JOIN US IN DOCUMENTING YOUR INTERN STORY!

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Intern Labor Rights is looking for intern stories this summer! As a movement that is gaining wider recognition over the years, we know that visibility is a key component towards building greater awareness and coalition-building around our stories. We believe it is crucial for educational institutions, employers, policymakers, and fellow labor organizers to understand the depths and complexity of the intern labor experience.
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In particular, we are seeking stories that explore:

  • Lack of Access to Internship
    Have you been seeking (an) internship(s) but finding it difficult to secure because of lack of compensation and/or basic job security by the employer?
  • Unpaid or Underpaid Internship
    Have you taken on an underpaid/unpaid internship but are struggling with multiple jobs, other sources of financial support, and/or an unsupported work environment? Are you working long hours and tasks for little to no pay?
  • Paid Internship, Unfair Working Conditions
    Are you in a paid internship, but experiencing a difficult work environment, such as little to no supervisory support, worker protection, and/or put to precarious tasks or job roles?
  • Intern Organizing
    Are you currently engaged in and/or attempting to organize within your organization and/or educational institution to raise awareness about internships in your area?
  • Additional Internship Stories
    Did you sign up for an internship thinking you would be getting an educational or learning experience, but didn’t get it? Were you told you would be presented with (a) job offer(s) post-internship, but didn’t receive anything?
    ….and many other stories!

What is your internship story? If you’re in the NYC area, we encourage you to contact us so can start filming our own stories and narratives! E-mail us at internlaborrights@gmail.com.
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DEADLINE to contact us: July 15th, 2015
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PLEASE NOTE: If you would like for your story to be filmed but do not wish to be shown fully on camera, please let us know. We would like to facilitate a safe process for story collection.

Join Us in the Park on Monday, June 1! Rain Location Below.

intern-labor-rights2RAIN LOCATION!:

Weather reports indicate that we’ll be having a rainy day today so we are moving our meeting to Think Cafe at 248 Mercer Street, just a couple of blocks from Washington Square Park. See you at 5:30pm!

Summer’s finally here! It’s a great time to get out and get involved with Intern Labor Rights.

Join us in Washington Square Park in Manhattan for an open-air meeting this Monday, June 1, 5:30-7pm. We’ll be sitting just to the west of the arch. Just look for the “Pay Your Interns!” sign. Can’t locate us? Call 718.344.4820. Our meetings are informal and we are always happy to welcome new people.

See you Monday!

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.