N.Y. court questions legality of unpaid internships

Unpaid internships have long been a path of opportunity for students and recent grads looking to get a foot in the door in the entertainment, publishing and other prominent industries, even if it takes a generous subsidy from Mom and Dad.

But those days of working for free could be numbered after a federal judge in New York ruled this week that Fox Searchlight Pictures violated minimum wage and overtime laws by not paying interns who worked on production of the 2010 movie Black Swan.

'Maybe you go work for a food store instead of applying for that fancy internship in the entertainment or arts industry' Law professor David Yamada

The decision by U.S. District Judge William H. Pauley III may lead some companies to rethink whether it's worth the legal risk to hire interns to work without pay. For many young people struggling to find jobs in a tough economy, unpaid internships have become a rite of passage essential for padding resumes and gaining practical experience.

"I'm sure this is causing a lot of discussions to be held in human resource offices and internship programs across the country," said David Yamada, professor of law at Suffolk University in Boston.

Free labour

There are up to 1 million unpaid internships offered in the United States every year, said Ross Eisenbrey, vice-president of the Economic Policy Institute, a liberal-leaning think-tank . He said the number of internships has grown as the economy tumbled and he blamed them for exploiting young workers and driving down wages.

"The return on a college investment has fallen, students are facing higher and higher debt burdens, and the reaction of employers is to make matters worse for them by hiring more and more people without paying them," Eisenbrey said.

In the ruling, Pauley said Fox should have paid the two interns who filed the lawsuit because they did the same work as regular employees, provided value to the company and performed low-level tasks that didn't require any specialized training.

The interns, Eric Glatt and Alexander Footman, performed basic administrative work such as organizing filing cabinets, tracking purchase orders, making copies, drafting cover letters and running errands.

"Undoubtedly Mr. Glatt and Mr. Footman received some benefits from their internships, such as resume listings, job references and an understanding of how a production office works," Pauley wrote. "But those benefits were incidental to working in the office like any other employees and were not the result of internships intentionally structured to benefit them."

Chris Petrikin, a spokesman for 20th Century Fox, said the company believes the ruling was erroneous and plans to appeal. Fox had argued that the interns received a greater benefit than the company in the form of job references, resume listings and experience working at a production office.

Landmark ruling

Juno Turner, an attorney for the plaintiffs, said it was the first time a court had given employee status to young people doing the types of duties commonly associated with interns. The case is one of several that have been filed in recent years demanding that all interns deserve a salary.

"This is an incredibly important decision as far as establishing that interns have the same wage and hour rights as other employees," Turner said. "You can't just call something an internship and expect not to pay people when the interns are providing a direct benefit to the company."

In ruling for the interns, the judge followed a six-part test outlined by the Labor Department for determining whether an internship can be unpaid. Under the test, the internship must be similar to an educational environment, run primarily for the benefit of the intern as opposed to the employer, and the intern's work should not replace that of regular employees.

Glatt, the lead plaintiff, lamented the fact that unpaid internships have become so normal "people do it without blinking an eye."

"It's just become a form of institutionalized wage theft," he said Wednesday in a conference call with reporters. Glatt has an MBA from Case Western Reserve University and said he is currently studying law at Georgetown University Law Center.

Other cases

Another prominent lawsuit is challenging unpaid internships at Hearst Magazines. Last month, a federal judge in New York declined to let the interns pursue their case against Hearst as a class action.

Camille Olson, an attorney who represents employers in workplace litigation, said the Fox decision was just one judge's opinion that may be overturned on appeal. But she said many employers are now "taking a harder look at the issue."

"There's a lot more interest in making sure intern programs are structured correctly or, if an employer doesn't want to have any risk, then paying minimum wage," Olson said.

She said many employers believe they don't need to pay interns because they offer counselling and mentoring similar to what a teacher might offer in a vocational program.

"They view themselves as actually spending a lot of resources on these programs," Olson said.

But Yamada, the law professor, said the growth of unpaid internships unfairly leaves out students and graduates from lower economic levels who can't afford to work for free.

"If you're a college kid that has to make some money over the summer, maybe you go work for a food store instead of applying for that fancy internship in the entertainment or arts industry," he said. There's nothing wrong with a tryout program that lets them scout out the talent, but they should at least pay minimum wage."