June 19, 2013 10:30am PT by Eriq Gardner
Hollywood Internships Under Fire After 'Black Swan' Ruling
A version of this story first appeared in the June 28 issue of The Hollywood Reporter magazine.
For years, interns have provided film and television productions with free labor. But a June 11 court ruling has thrown the future of Hollywood internships into limbo. Not long after a New York judge declared Fox Searchlight violated labor laws by not paying two interns on the 2010 smash Black Swan, employment attorneys are getting calls from producers concerned about their own programs.
Kate Gold, an employment lawyer at Drinker Biddle who works with many entertainment companies, says her phone has been ringing a lot lately, especially because June is when many college students arrive on sets for the summer. "Many [employers] want to know if giving college credit is enough," she says. "What I've been advising is that if the companies are not prepared to adhere to Department of Labor guidelines, it might be best to start paying minimum wage. At least for now."
After all, the Black Swan internship that caused Alex Footman and Eric Glatt to sue probably sounds familiar to most movie producers. The two performed duties such as tracking purchasing orders and making photocopies. The film's line producer even sent an e-mail to a Searchlight exec about a union rep who was on set and complained that an intern was doing work that should have been assigned to a loader.
Fox is appealing the summary judgment, but in the meantime, even paying minimum wage to interns might not be enough. Those who work too many hours could trigger Social Security tax payments and even healthcare obligations under the new Affordable Care Act. College credit long has been a popular substitute for pay, but to be totally safe from lawsuits, Hollywood employers also have to ensure that internships provide immediate advantage to trainees instead of benefiting those who are supposedly doing the training.
It's enough hassle to make Gold wonder whether production companies will just decide to end internships entirely. Ignoring the ruling isn't smart, says St. Louis University law professor Marcia McCormick. In the wake of the ruling against Fox, employers are now on notice. "If the violations are found to be willful, there's the possibility of damages being doubled," she says.
Plus, there's the possibility of recovering attorney's fees, which might attract more lawyers to the issue. Just days after the Fox ruling, a new class-action lawsuit was brought over interns who worked at Conde Nast publications, and on June 17, another case was filed targeting the internship program at Warner Music Group. In the latter case, plaintiff's attorneys are looking to take advantage of New York's lengthy statute of limitations and targeting an industry that in recent years has been forced to endure heavy staff cut-backs, potentially ramping up the liability and the questions about where to go from here.