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This summer, many entertainment studios and media companies are re-examining their internship programs in light of a judge’s ruling that Fox Searchlight had misclassified two unpaid workers on the film Black Swan.
Justin Swartz, a partner at Outten & Golden, spearheaded the groundbreaking litigation against Fox as well as more recent lawsuits against NBCUniversal, Conde Nast, Hearst Corp. and other media companies. A co-chair of his firm’s class-action practice group, Swartz explains the goal of the legal campaign and what he hopes to accomplish going forward.
The Hollywood Reporter: Why did you get involved in this?
Justin Swartz: When we realized that private, for-profit companies were using interns to do production work, we knew it was illegal and decided to do something about it. It’s not often that a law firm is willing to spend its resources to challenge the status quo. To some, this isn’t a popular campaign, but we think the law has always been clear. Some in the media industry seem to think the privilege of being in the office is enough compensation. The law sees it differently.
THR: What do you think the ramifications are of the legal campaign?
Swartz: This is not just a labor issue. It’s also a social justice issue. Generally, people in position to work for free come from privileged backgrounds. An important byproduct of the intern cases is that it will open up industries like media and film to those who need to work when they are in school. There are plenty of kids who work at McDonald’s because they need to earn money to live. If internships were paid at Fox or Hearst, those folks can apply to those jobs.
THR: What’s the next step?
Swartz: No judge has determined that it is legal not to pay interns who do productive work. The judge in the Hearst case decided that a class shouldn’t be certified because you can’t evaluate on a group basis the experiences of interns at different magazines. The judge, however, certified for appeal, realizing there was a reasonable difference of opinion. And before we proceed in the class action against Fox [where the judge came to a different conclusion], that certification will be challenged at the 2nd Circuit.
THR: Are there more lawsuits coming?
Swartz: We’re getting a steady stream of calls from contacts who were unpaid interns who want to know what their rights are.
THR: Have you heard of changes of intern policies at studios and networks?
Swartz: Well, the internship program we’re suing Fox over ended in 2010. My friends on the management side of the bar are getting a lot of calls from clients. They are issuing client alerts, advising them on this, because everyone is worried about it now. There are a lot companies that want to do the right thing.
THR: What about the criticism that this is going to dry up internships?
Swartz: These companies can certainly afford to pay a few hundred students. And if it’s only about bringing in a students and having them shadow executives and giving them classroom training, that might be a legal internship program. What they can’t do is have them come in and shuttle packages and have them respond to customer inquiries. They can have that, but that’s an entry level job, not an internship. There seems to be a whole level of entry level work that’s been eliminated over the years.
THR: Do you think the Labor Department is doing enough here?
Swartz: I think the United States Department of Labor is run by good lawyers. They will speak up, but it’s not always their job to pick new fights. It’s not the best use of their resources. That responsibility sometimes falls to private lawyers willing to take cases on. The Labor Department should fill in where private enforcement isn’t sufficient.
THR: Do you think that other developments, such as the onset of Obama’s health care law, will impact the situation?
Swartz: There is certainly a confluence — and the Affordable Care Act is coming closer and closer to reality. That is a reason why companies are taking a close look at the issue. If interns are working enough hours, they might qualify as employees under the act and have added obligations.
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