Articles Posted in Interns

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Internships were designed as a way for students to get some hands-on training, experience, and make some connections, but employers often take advantage of this system to put students to work for free so they can avoid paying employees. Many lawsuits have been filed against employers by interns alleging they should have been compensated for the work they did.

Although the line between intern and employee can sometimes be a bit vague, the Second Circuit Court recently began recognizing the “primary beneficiary” test to determine if a worker should be classified as an intern or an employee. The test is composed of seven parts, although more factors can certainly be considered. The aspects used by the Second Circuit include:

  • Whether both parties agree ahead of time that there is no compensation expected;
  • Whether the intern will receive training on par with the kind they would receive in an educational setting;
  • Whether the intern can receive educational credit for the internship and/or the internship is connected with some sort of formal education program;
  • Whether the internship corresponds with the academic calendar in order to accommodate the intern’s educational commitments;
  • Whether the duration of the internship is limited to the period that provides the student with education and experience that benefits them in their education;
  • Whether the intern’s work takes the place of work normally done by employees; and
  • Whether both parties understand there is to be no expectation that the intern will receive a paid job offer once they’ve completed their internship.

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The struggle in the courts between interns and businesses continues. While this blog has discussed certain cases of interns disputing the legality of their status as unpaid interns at magazines (such as the case against Harper’s Bazaar) and film studios (such as Fox Searchlight Pictures), the latest case brought to court is on behalf of interns who were paid for their work, but were paid at a rate below minimum wage.

In this case, two former interns are suing Conde Nast, alleging that they were paid less than one dollar for each hour that they worked at W Magazine and The New Yorker, both of which are owned by Conde Nast. The lawsuit was filed in Federal District Court in Manhattan and alleges that Matthew Leib, who worked as an intern at the New Yorker in the summers of 2009 and 2010, was paid between $300 and $500 total for each summer that he worked. He alleges that, as an intern, his duties included reviewing pieces for submission to the “Shouts and Murmurs” section of the magazine as well as to proofread and edit articles for the “Talk of the Town” section.

Additionally, Mr. Leib, as a cartoonist, allegedly helped to maintain the online cartoon database, performed research in the cartoon archives, and coordinated the work of cartoon artists. He claims to have worked three days a week from 10am until 5:30pm. Assuming a one-hour break for lunch, that makes it a 6.5-hour day, and a 19.5-hour week. Since most internships last about ten weeks, we can assume that Mr. Leib worked approximately 195 hours each summer at The New Yorker. If he were paid $500 for the entire summer (which is the maximum total alleged by the lawsuit) that means he only earned about $2.56 for each hour that he worked, which is well below minimum wage.

Lauren Ballinger, the second named plaintiff in the lawsuit, worked as an intern in W Magazine’s accessories department in 2009. She graduated from The American University of Paris and said she saved one credit before graduating to use towards an internship at W Magazine. Ms. Ballinger alleges that she was paid $12 per day during her internship at W Magazine. She alleges that she worked from eight or nine in the morning until eight to ten each night, packing, organizing, and delivering accessories to editors. She alleges that she later worked 10-hour days, three days a week, in W Magazine’s fine jewelry department.

For both internships, Ms. Ballinger alleges that she was trained only by other interns. Even one of the editors at W Magazine marveled at how poor their working conditions were, comparing the job to that of Anne Hathaway’s character in “The Devil Wears Prada”. Ms. Ballinger says that her job was worse that that “because we don’t get makeovers in the end”
After all that hard work that Ms. Ballinger put in at W Magazine for a pittance, the editors of the magazine did not give her a recommendation to her university, which she needed in order to receive her course credit. Ms. Ballinger gave that as the reason for deciding to get involved in the class action lawsuit against Conde Nast.

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With unemployment across the country remaining stubbornly high, many people are desperate to get whatever work they can. As this blog has discussed, many employers are taking advantage of the low economy to squeeze as much work out of as few employees as they can. Many workers are afraid to complain or leave jobs where they are treated unfairly for fear of being unable to find work elsewhere. In the last couple years however, employees have begun to fight back and to take their employers to court over matters of unpaid overtime and missed breaks. They’re not the only ones fed up with mistreatment.

College graduates are among the hardest hit by the recession and its “jobless recovery”. They are competing for jobs with workers who are older and already have the requisite skills. As a way to gain experience and job references, many college graduates have turned to internships. The work is often unpaid but at least it gives them something to put on their resumes.

The Department of Labor has strict guidelines for unpaid internships. In order to be unpaid, the internship must have a strong educational component and be similar to vocational training. The work that the intern does should not be to the immediate advantage of the employer, nor should it replace the work of regular employees. However, many employers have taken advantage of the weak economy to have interns do menial tasks and chores without payment.

Like overtime workers though, interns have begun rebelling against this rigged system. As this blog has mentioned, a former intern for Harper’s Bazaar was recently granted class action status for all unpaid interns who worked in the company’s magazine division since February 2009.

Charlie Rose and his production company announced late last year that they would pay a settlement, which would cover back wages for as many as 189 interns. In that settlement, each intern was to receive about $1,100.

Now, Fox Searchlight Pictures has received an unfavorable ruling from a judge in a Federal District Court in Manhattan. The lawsuit was filed by two unpaid interns who worked on the film “Black Swan”. According to the judge’s decision, the internships were not of an educational nature and the studio benefited inordinately from the work that the interns performed.

The two plaintiffs, Eric Glatt and Alexander Footman, allege that they did basic chores, which would normally have been undertaken by regular employees. They performed such tasks as taking lunch orders, answering phones, arranging travel plans, tracking purchase orders, taking out the trash, and assembling office furniture.

While Judge William H. Pauley III conceded that the interns did receive some benefits from their internships “such as resume listings, job references, and an understanding of how a production office works,” he goes on to say that “those benefits were incidental to working in the office like any other employee and were not the result of internships intentionally structured to benefit them.”

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While an increasing number of underpaid workers have been refusing to withstand mistreatment, with or without the bad economy, there has been a parallel rise in interns filing class action lawsuits. This blog has recently discussed such cases, including the one against Conde Nast and the one against Fox Searchlight Pictures.

An additional class action lawsuit involving interns has been filed against Crook Brothers Productions, Jeff and Josh Crook, Larry Schwarz Media Group, and Larry Schwarz and His Band. The class action lawsuit was filed by Kevin Hicks, who worked as an unpaid intern on a show produced by Crook Brothers Productions. The show is “Alien Dawn” and it premiered on Nickelodeon’s Nicktoons earlier this year.

Hicks alleges that he regularly worked 10-12 hours a day, sometimes working as much as 16 hours in a day. The duties he performed included moving boxes, driving vans, assembling and painting props, costuming characters, taking out the trash, and appearing as an extra in some scenes. The lawsuit is seeking collective class action status for all interns who worked for Crook Brothers Productions. The lawsuit is asking for the court to grant them double back wages, an injunction against future involvement in this illegal employment practice, in addition to attorney’s fees and costs.

The lawsuit was filed in U.S. District Court in New York by attorneys Maurice Pianko and Jesse Strauss. It is the sixth intern lawsuit to be filed by Pianko’s practice, Intern Justice.
As this blog has discussed, there are ways in which companies can legally use unpaid interns. However, in order to do so, there are certain qualifications that the internship must meet. Among these is a learning environment for the intern, similar to vocational training. In addition, the company must not benefit overmuch from the intern’s unpaid work. For example, the intern should not be performing duties which would otherwise be fulfilled by a paid employee.

In his class action lawsuit, Hicks alleges that he did the work of a paid employee. Had he not done so, the production company would have had to hire an employee to perform the tasks. The company thereby benefited to an inordinate degree by the unpaid work performed by Hicks and other interns. The lawsuit further alleges that Hicks’s internship displaced paid employees, a situation few can afford in a struggling economy.

In the decision reached by Judge William H. Pauley, regarding the class action lawsuit against Fox Searchlight Pictures which was filed by interns for the film “Black Swan”, the judge states that unpaid interns should not be performing unskilled work which requires no special training. The tasks performed by Hicks during his internship, such as taking out the trash, certainly cannot be considered skilled work.

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The matter of making sure employees are properly classified and paid extends to interns. Xuedan Wang, who held an internship at Hearst Corp, is filing a lawsuit for two class actions against the magazine company. The first is an Intern Class comprised of unpaid and underpaid interns. The second is a Deductions Class comprised of interns who received college credit for their internships. The allegation is that students’ payments to their colleges for that credit amounted to an unlawful deduction from their wages.

Wang is basing these allegations on one of the guidelines used by the U.S. Department of Labor for determining whether an intern is considered an employee who must be paid at least minimum wage and overtime under the FLSA, which says “If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation.”

The classes will include everyone who worked as an unpaid or underpaid intern at Hearst Magazines between February 1, 2009 and the date of the final judgment in this matter.

Wang alleges that she worked up to 55 hours per week, without pay, as an intern for the magazine last year. She also alleges that this is typical of interns and that it is a result of a company-wide policy or practice.

The judge granted certification of the class on the condition that Wang can provide sufficient evidence to support the allegation that her case is typical of interns working for Hearst Magazine. Included in the judge’s decision was consent for Stephanie Skorka to be included as a Named Plaintiff.

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