"Black Swan" Unpaid Interns Raising Legal Issues
Two former interns on the set of the movie “Black Swan” brought a class action lawsuit against Fox Searchlight Pictures, alleging that their work as unpaid interns crossed the line into work for which they should have been compensated.
Although provided with an opportunity to get first-hand insight into the making of a movie, the “Black Swan” interns were also required to perform tasks such as preparing coffee, cleaning up and fetching food.
The Department of Labor regulations make clear that employers do not have to pay their interns so long as ALL of the following criteria for the intern work are met:
- The training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainees or students, not the company;
- The trainees or students do not displace regular employees, but work under close supervision;
- The employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, his or her operations may even be impeded;
- The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
- The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.
While the tasks required of the Black Swan interns may be commonplace in the entertainment industry, they also allowed the employer to derive a direct benefit from the interns’ activities. As the interns allege, that may have violated criteria 2 and 4 above.
While intern labor cases have thus far been rare, the growing number of unpaid internships coupled with the high visibility of this case should put employers on warning. Simply acting as others in your industry will not necessarily keep your company safe from potential litigation if those industry standards are not in line with the Department of Labor’s rules on unpaid internships. To avoid any potential ramifications, employers would be prudent to make sure their internship programs comply with the applicable regulations and/or consider either paying interns or partnering with educational institutions so that internships may be structured for academic credit.
