I don’t mean to make anyone paranoid, but if your organization has unpaid interns, you need to start thinking about whether they may start legal proceedings against you for back pay. In the wake of a federal court ruling that found Fox Searchlight Pictures violated minimum wage laws in their engagement and utilization of unpaid interns, any number of shrewd interns may well be considering their options even as I write.
‘Well that’s Hollywood,’ you respond, ‘They’ve got piles of money and absolutely should have been paying their interns.’ But the minimum wage laws, in existence for years, don’t consider the assets of any company in deciding whether an internship is legitimate, only whether the proper criteria apply. While I’m no labor lawyer, I have long been familiar with the general guidelines of internships, which in essence say that an unpaid internship is legitimate only when there is a clear educational benefit to the intern (best ascertained when the internship is approved for academic credit, not by a ‘they get to see how things work while doing the copying’ justification) and when the internship does not involve labor that would otherwise have to be undertaken by a paid employee.
As Isaac Butler astutely points out on his blog this morning, the arts (and no doubt countless other businesses, both commercial and not-for-profit), operate under “an assumption of not paying people, with narrow, specific contexts as to when that won’t be the case.” Internships are ingrained in our culture and the resistance to change is due in part to the mindset of ‘that’s what I did when I was young and it should still be that way today.’ This same logic long ruled over medical education, with doctors-in-training working insane hours as if under some prolonged fraternity hazing – until people started noticing that patients were dying as a result. ‘That’s the way it’s always been done’ is not a legitimate excuse.
No one may be dying because of unpaid arts internships, but the legal and ethical issues are certainly brought to the forefront by the court ruling. Organizations are well advised to review their intern practices against the wage guidelines and applicable laws as soon as possible; this is not a blanket jeremiad against internships, only those which aren’t legit. On the upside, perhaps this new finding (again, based on long-standing laws) will prompt more organizations to develop and institute true internships, with defined training regimens for a limited time. Still other companies may realize it’s smarter to begin paying at least minimum wage as soon as possible. (Don’t get hung up on your personal interpretation of what “stipend” means; that’s another easy out, and a trap.)
Of course if those employees are full time, you’ll have to provide benefits as well, such as health insurance and paid time off, so minimum wage times 40 hours a week is only part of the true price tag here. While in the short term, absorbing these costs will l be difficult, it beats the looming prospect of legal action, resulting in not only making payments in arrears, but also bearing the burden of penalties. Whatever your company considers, get professional counsel to make sure you’re doing not just the right thing, but the correct thing.
Some may choose to debate whether the transition away from unpaid internships/jobs will place a greater burden on smaller companies. As a veteran of what most would consider large organizations, it’s difficult for me to assess the relative impact. I would certainly hate to see small or even nascent companies derailed, but as we’re taught, ignorance of the law (or willfully ignoring it) is no excuse for breaking it (a recent employment tribunal in England has prompted a reexamination of unpaid fringe theatre work). The arts ecosystem must absorb the lessons of the Fox Searchlight decision and, as a field that is perpetually challenged, we will find our way through. Indeed, we may ultimately be stronger, since in many cases, it is only young people of means who can afford to work for nothing; this will be a step (though by no means the whole solution) in insuring that arts careers are available to everyone.
Although unemployment rates are down, it’s well known that job opportunities for recent college graduates are still relatively slim, and it’s not unusual for young people to do multiple internships on their way to paid work. The current arts internship culture benefits from that harsh reality, since the demand for entry-level opportunities is possibly even greater than in the past, when internships and apprenticeships were already the norm, especially in glamour industries. Though it may not seem that way day in your day to day tasks, every single arts job is in fact part of a glamour industry – it’s not reserved for movies, TV, fashion, sports and publishing. But the nation’s economic issues, our own belief in the inherent value of the arts, and the unending stream of people desperate for their show business break, should not be used as a reason to avoid paying those who are, for all intents and purposes, employees.
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Update, 4 pm, June 13: Hours after I posted this story, The New York Times reported on two interns filing suit against Condé Nast for underpayment of wages for summer internships over the past several years. This situation will only keep growing with each filing, and with each success by plaintiffs.
Full disclosure: I am a relative rarity in the arts, in that I never had any unpaid employment in my career. My financial aid package in college included 20 hours of “work study” each week beginning with my freshman year, which paid me minimum wage to work in the box office of the campus performing arts center, home to several professional companies. I parlayed that position into a public relations gig at a small professional company during my junior year, at the rate (as I recall) of $4 an hour. I was extremely fortunate to have had these jobs, as I knew my parental support was to end the day I graduated, and these opportunities set me up to start full employment immediately, since I already had professional experience.