Know Your Internship Rights
Thinking about taking an unpaid internship? Read this first. Here's your guide to your legal rights as an intern.
In the entertainment industry, an internship is a great way, and in some cases the only way, to transition from student to professional. Among 2013 graduates across all sectors who did an internship, more than 63 percent of paid interns and 37 percent of unpaid interns were offered a job, reports the National Association of Colleges and Employers. Unpaid internships have exploded over the past few years—a survey by Intern Bridge of 11,000 students across 150 colleges showed that more than half interned for free—particularly in industries like music, film, and fashion where free student labor is rampant. Requiring long working hours and offering no compensation in return, unpaid internships oftentimes toe a fine line between educational and exploitive. That’s why some workers are fighting back. In the past two years, several interns have sued their former internship employers for back compensation and damages. Before taking an unpaid internship, here’s what you should know about your rights.
Requirements for Unpaid Internships
“Most [unpaid] internships nowadays in the for-profit sector are actually in violation of the Fair Labor Standards Act and basically are against the law and should be paying minimum wage,” says Maurice Pianko, a New York City attorney who specializes in representing unpaid interns and founder of the website InternJustice.com.
Under federal law, for-profit companies are required to pay all employees at least minimum wage. To qualify for an exemption, an unpaid internship program must fulfill six basic criteria, including having a strong educational component and existing for the benefit of the intern rather than the employer. Legally, an unpaid internship may not displace jobs that would typically go to paid employees or produce work that immediately benefits the employer.
“The focus needs to be on the training of the [unpaid intern] and the supervision that the unpaid intern gets, and to the extent that there is any immediate advantage that is derived by the employer, it is outweighed by the cost of training the unpaid intern,” says Jack Newhouse, an associate attorney with Virginia & Ambinder, LLP, who focuses on employment litigation. “So really it’s a balancing test. … Does the training and supervision that the unpaid intern receives outweigh the advantage that the unpaid intern provides to the employer?”
Interns must also be aware that they won’t get paid and aren’t entitled to a paid position once the internship is over, reports the Department of Labor. A full list of all six requirements for internships through for-profit companies is available right here. Since it’s legal to volunteer for a nonprofit organization, regulations on unpaid internships through nonprofits are more lax, says Pianko.
Newhouse says that students can figure out whether their internship is meeting legal requirements by evaluating how much educational benefit they’re receiving.
“You’ve got to look to what training you’re receiving,” he says. “Is it a formal training program? Are your supervisors watching over your work? What kind of work are you doing? … What’s the nature of the work that you’re doing, and if the nature of the work that you’re doing is benefitting the company as opposed to the nature of the work you’re doing is for the unpaid intern’s own benefit.”
If employers don’t meet all six requirements, interns are entitled to back pay including overtime, even if they’re already receiving academic credit for their work. They can also sue their former employers for “liquidated damages,” which are equal to the amount of back pay owed, as well as attorney and court costs. For an intern who works 60 hours per week for three months, that could me more than $1,000 per week plus court and attorney fees owed by the employer, says Pianko.
To Sue or Not to Sue
The landscape of unpaid internships is slowly changing in response to the rise in related lawsuits. Many larger companies have already shut down or updated their internship programs to be in compliance with federal regulations. There are still a lot of employers who continue to operate exploitive and illegal internship programs. If you find yourself in an exploitive situation or you’ve recently completed an unpaid internship that you believe has violated the Fair Labor Standards Act, you can seek legal help. Many lawyers who specialize in internship cases offer a free initial consultation that could give you a better idea of whether you have a case and how best to proceed. But think carefully before heading down that route, says Michael Harper, a professor and Barreca Labor Relations Scholar at Boston University School of Law.
“[Interns] have to consider the cost of going to a lawyer,” he says. “The costs include not only paying that lawyer, but also alienating an employer in their industry, getting the reputation of a trouble maker. … It probably won’t help them get a recommendation. They’re not in a very strong position.”
While interns who sue can assume that they won’t be getting glowing recommendations out of their former employer, the silver lining is that many labor lawsuits get settled out of court, which means that there’s no public record of the dispute that can prevent the intern from getting paid work in the future, says Maurice Pianko.
“Just as much as an intern might feel that deciding to file a lawsuit or deciding to send a demand letter might supposedly ruin their future career prospects, defendants are also afraid of that too,” he says. “A multi-million dollar defendant being written up that they couldn’t pay $7.25 an hour doesn’t necessarily look good from a [public relations] standpoint.”
Pianko says that many of his internship cases get settled simply by sending a legal demand letter that outlines the problem to the former employer. In those cases, former interns are almost always required to sign a nondisclosure agreement that prevents them from discussing the case in the future, but they oftentimes receive some level of compensation without industry-wide backlash.
One way to sidestep exploitation is to seek out internships with high educational components. For example, the 45 to 50 interns who work at the Newport Beach Film Festival in California each year first join the general internship pool where they get a sample of each of the fest’s departments and discuss what they’d like to get from their intern experience. From there, they can stay in the general pool or move into a more specialized department like film programming, marketing, or event sponsorship. As an added perk, interns also get valuable networking opportunities with industry pros showing their films, and are welcome to attend private events the fest puts on, such as a screening of 12 Years a Slave that also featured a live discussion with director Steve McQueen and writer John Ridley.
“Our internship isn’t the kind of thing where the intern is getting people’s coffee or picking up people’s dry cleaning,” says Adam Gentry, the fest’s internship director and a former intern himself. “… Any task that we ask an intern to assist us with is a task that we’re willing to do ourselves or have done many times.”
Mentoring opportunities can also add value to an internship program. The public radio show This American Life, for instance, offers the two interns it accepts each year the opportunity to have lunch one-on-one with each of the show’s producers.
“We have things like cutting exercises that [interns] do, which are exercises that we’ve created where they’re really learning a lot about hands-on cutting audio,” explains This American Life’s production manager, Emily Condon. “They’ll do those and they’ll sit with either Ira Glass, who’s our executive producer, or one of our other producers and go over them and talk about what worked and what didn’t and why.”
This American Life’s program caters to those already out of college—the average age of the last seven interns is 28 year old—and all interns are paid. Condon advises those seeking internships to apply for paid ones first.
“We find that the fact that we do pay sometimes indicates to people that this is a serious position where you really are going to be learning things,” she says.
If you can’t find a paid internship in your field, you may be able to get funding from a secondary source. Organizations like the Moving Picture Institute offer stipends as well as educational seminars, networking, and mentorship opportunities with established filmmakers for those interning on major film sets. Through the organization’s Hollywood Career Launch Program, interns receive an average $1,500 monthly stipend for a 10-to 12-week period and get placed at studios like Lionsgate, Magnolia Pictures, and Happy Madison Productions.
“More than half of our interns go on to full-time employment in Hollywood,” says Adam Guillette, director of outreach for the Moving Picture Institute. “The feedback that we’ve gotten from both the interns and the production companies has been incredibly positive.”
Asking the Right Questions
Asking questions about the educational value, mentorship, and networking opportunities offered in a particular program can give you a clearer idea of what to expect both during and after the internship program is complete. You can also try tracking down a few former interns from that program and ask about their experiences.
Newhouse says that students doing unpaid internships may also be able to negotiate some form of alternative compensation that could make the work a bit easier to fiscally stomach.
“I don’t think it’s totally inappropriate to ask your boss for a stipend or bus fare or something, especially when you’re in a position where you’re providing and you’re working unpaid for a for-profit institution,” he says.
Interns, both paid and unpaid, can get the most out of their work programs by being proactive about finding networking and resume-building opportunities, Newhouse adds.
If you run into issues on the job, Harper recommends going to someone in the workplace that you trust and asking if there’s a chance of getting paid. While Harper doesn’t recommend seeking legal help or pushing the issue any further if the answer is no, Maurice Pianko recommends getting competent legal counsel and having the attorney address the employer on the intern’s behalf.
“They need a lawyer,” he says. “Without a lawyer, and I’ve heard stories all the time, people will call up [human resources] and say ‘you’re in violation of the six-factor test’ and HR will basically tell them ‘this was completely educational. We were totally in compliance with the six-factor test. Get out of here.’ The only way really to even attempt to get back pay is through a lawyer.”
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