Former Black Swan interns declare war on unpaid internships

A black mark against Black Swan?

The war on unpaid internships is heating up. Two unpaid interns who worked on last years' blockbuster noir-ballet flick Black Swan recently filed a lawsuit in Manhattan's Federal Court against Fox Searchlight Pictures alleging breaches of the Fair Labor Standards Act related to minimum wage and overtime. The Department of Labor's Wage and Hour Division has developed a six-fold test to ascertain the legality of internship schemes; the test itself is rooted in the 1947 United States Supreme Court decision in Walling v. Portland Terminal Co. Essentially, the test boils down to whether the internship is a bona fide training program that mainly benefits the intern and doesn't immediately benefit the employer.

This lawsuit is an excellent development as it shines a light on the exploitative and problematic nature of unpaid internships. This type of employment has skyrocketed over the last thirty years in Canada, the United States and England. Now we're in the unfortunate situation where young people are often forced to take on unpaid internships as a means to gaining work experience in a difficult economy. The vast majority of these unpaid internship contravene the applicable workplace laws, but due to a systemic lack of enforcement of employment standards very few cases every come to light. Eric Glatt, one of the plaintiffs, recently reminisced "When I started looking for opportunities in the industry, I saw that most people accept an ugly trade-off. If you want to get your foot in the door on a studio picture, you have to suck in up and do an unpaid internship."

Adam Klein, the plaintiffs' lawyer, was quoted in the New York Times opining that: "Unpaid interns are usually too scared to speak out and to bring such a lawsuit because they are frightened it will hurt their chances of finding future jobs in their industry." This reasoning underscores the absence of access to justice that impact on workers who are precariously employed in jobs falling outside of the standard employment relationship. While precarity has been a constant theme in employment throughout history it has recently returned to prominence as governments refuse to update workplace laws to respond to the changing realities in the new economy.  This rusting of workplace laws is having a significant impact on the employment prospects of the millennial generation as employers now feel they possess a carte blanc to exploit, violate employment standards and not pay young people for their labour.

Lawsuits against misclassification of employees are on the rise as employees resort to the Courts to address employment standards violations. Employers have to understand that they run a significant risks if they are violating the law, both in terms of being subjected to legal actions and the larger reputational risk that could significantly damage public relations. It will be fascinating to see how this case progresses and it may well serve as a clarion call to other unpaid interns to confront their employers about the exploitative nature of their employment. For some of my previous articles on the unpaid internship phenomena see: here, here and here.