Earlier this month, a federal district court judge for the Southern District of New York ruled that Fox Searchlight Pictures violated federal and State minimum wage laws when it failed to pay two unpaid interns who worked on the film “Black Swan” from 2009 to 2010. In Glatt v. Fox Searchlight Pictures, Inc., —-F. Supp. 2d —-, 2013 WL 2495140 (S.D.N.Y. Jun. 11, 2013), Judge William H. Pauley III held that plaintiffs Eric Glatt and Alexander Footman were improperly classified as “unpaid interns” and were actually “employees” protected by the Fair Labor Standards Act (the “FLSA”). In the decision, Judge Pauley looked to a Department of Labor Fact Sheet that enumerates six criteria for determining whether an internship may be unpaid:
- The internship is similar to training that would have been given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under the supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to waves for the time spent in the internship.
In his analysis, Judge Pauley held that the totality of the circumstances warranted that Glatt and Footman be classified as “employees” rather than “unpaid interns.” Judge Pauley noted that the internships did not foster and educational environment. Specifically, Footman did not receive any formal training during his internship, and did not acquire any new skills aside from those specific to the film’s back office, just as his paid co-workers did. While Fox Searchlight benefitted from Glatt and Footman’s unpaid work, any benefits Glatt and Footman received were incidental to working in an office like any other employee. Glatt and Footman displaced regular employees by performing routine tasks, such as tracking and reconciling purchase orders, which would otherwise have been performed by regular employees. Finally, Fox Searchlight conceded that it obtained an immediate advantage from Glatt and Footman’s work.
Judge Pauley rejected Fox Searchlight’s argument to adopt a “primary benefit test” in lieu of the Department of Labor factor, labeling the “primary benefit test,” which weighs the benefit of the internship to the intern to that of the engaging entity, as subjective and unpredictable.
The case is the first in a long line of lawsuits filed by unpaid interns against media companies such as Conde Nast, Hearst Magazines, and the New Yorker for similar violations of the FLSA.
Attorneys in WSH’s Labor and Employment Law Group have years of experience advising clients regarding compliance with the FLSA, and regularly defend our clients in single plaintiff and class action litigation arising from alleged FLSA violations. Chaired by Partner Brett J. Schneider, the Group also defends employers against claims brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Equal Pay Act, the Florida Civil Rights Act, the Florida Whistleblower’s Act, and similar Federal, State and local laws. Our attorneys also regularly defend employers against discrimination charges brought before the U.S. Equal Employment Opportunity Commission, the Florida Commission on Human Relations, and similar local agencies.
Author(s): Brett J. Schneider & Brooke P. Dolara
