Major setback for intern rights as appeals court vacates 2013 “Black Swan” ruling

America runs on interns. Temporary, often unpaid workers are increasingly becoming a fixture of the American economy, making the idea of an entry level job a thing of the past. Now, “entry level” jobs require three to five years of experience, as interns are doing the work that full time employees used to be responsible for.

It’s a badly-kept secret that you can’t get your foot in the door on Capitol Hill without spending a few months as an unpaid intern. It’s a worse-kept secret that you can’t break into the film industry without putting in unpaid time, as well.

Ever since a Supreme Court ruling in 1947 that mandated changes under the Fair Labor Standards Act, the Department of Labor has defined who is and is not an intern in the for-profit sector using a six-pronged test. Internships must be educational in nature, for the benefit of the intern. Interns cannot displace full-time employees. There must be a clear understanding between the intern and employer that the intern is not entitled to wages during or employment after their internship.

Internship, via Sean MacEntee / Flickr

Internship, via Sean MacEntee / Flickr

These rules only apply specifically to the for-profit sector, which is why the movement against unpaid internships has directed much of its energy toward the entertainment industry, where for-profit companies’ use of unpaid interns is perhaps the highest. In 2013, Eric Glatt and Alex Footman successfully sued Fox Searchlight Pictures for violating the Department of Labor’s six-rule test when they worked on the production of Black Swan. Glatt and Footman were well past college, and did work on the set that would otherwise have been assigned to full time employees. As neither they nor their work fit the Department of Labor’s definition of interns and internships, a U.S. District Court ruled in 2013 that the company owed Glatt and Footman back pay and damages.

Glatt and Footman’s lawsuit preceded similar lawsuits against other entertainment giants, such as NBCUniversal, Viacom, Warner Music Group and Condé Nast, which were settled out of court. But Fox Searchlight has continued to fight the District Court’s ruling. Last Thursday, those efforts paid off, as the Second Circuit Court of Appeals reversed the 2013 case with a ruling that threw out the Department of Labor’s six-rule test.

As Ross Perlin, assistant director of the Endangered Language Alliance, wrote in a New York Times op-ed:

The appeals judges found, among other things, that an internship can be legal even if it doesn’t meet the traditional six-prong test, especially if it is tied to the receipt of school credit and helps the student fulfill academic commitments.

Even worse, the judges declared that “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” They ignored the legal standard and ethical principle that work merits pay…

…The “primary beneficiary” approach leads to the atomizing result that interns cannot unite to protect themselves. The judges write that “the question of an intern’s employment status is a highly individualized inquiry,” ignoring the low or nonexistent pay and shabby work conditions common to interns in many offices and industries. Thursday’s ruling all but destroys the basis for collective action through class-action lawsuits.

The “primary beneficiary” test is damaging beyond making it nearly impossible to form class action suits. The benefit an intern derives from their internship is whether they learned skills or made connections necessary in order to get a job down the road. That benefit is nearly impossible to quantify, which makes it nearly impossible to prove that any intern, in any case, is not the primary beneficiary of their intern experience.

As Perlin noted, the Court’s ruling focused almost entirely on the hard-to-pin-down nature of the benefit interns receive from their internships, while for the most part ignoring the quantifiable benefit employers derive from the thousands upon thousands of man-hours of free labor they receive each year. Put another way, the court’s decision is an acknowledgement that in today’s economy, a line on a resume is more valuable than six months of wages.

What’s more, it implies that minimum wage laws need not apply so long as you can get your employees to call themselves something else.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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3 Responses to “Major setback for intern rights as appeals court vacates 2013 “Black Swan” ruling”

  1. BeccaM says:

    Internships are exploitation, pure and simple. They are also a way to ensure that none but those who already have outside financial support are able to crack into certain industries. No matter what the intern is doing, their employer (and I use that word deliberately) is deriving benefits they would otherwise have to pay someone to do. Answering phones, running errands, whatever.

  2. Bcre8ve says:

    Right. Because the standard that has been there since 1947 is so unfair to employers and has made it all but impossible to offer these rich and rewarding experiences to the young students. inexperienced in any form of work, who benefit so greatly from these programs.

    *And now I chop my fingers off for betraying me.*

    No wonder they are so terrified of Obama appointing any more judges. They might find one that actually believes that a breastfeeding woman can be discriminated against even though men can technically lactate. Sometimes. Maybe.

    It is time to unf*ck the world!

  3. Indigo says:

    That’s how courts attempt to write laws. It’s an unfortunate development that can be sidelined by a fresh set of guidelines from the Department of Labor, currently busy implementing overtime regulations. Get busy, Tom Perez!

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