Or, simply, sue.
So, some years ago, I had a trial in front of the United States District Judge William H. Pauley, who struck me as a consistently fair, if tough, judge.
These traits can be seen in his opinion in Glatt v. Fox Searchlight Pictures, in which he held that interns who "worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training," were "classified improperly as unpaid interns and are 'employees' covered by" the the Fair Labor Standards Act ("FLSA") as well as New York's labor laws. Judge Pauley's reasoning on these factors is instructive as to what constitutes employment and what an internship:
1. Primary Benefit: "Searchlight received the benefits of their unpaid work, which otherwise would have required paid employees. Even under Defendants' preferred test, the Defendants were the 'primary beneficiaries' of the relationship, not Glatt and Footman."
2. No Formal Training Program:
Undoubtedly, Glatt and Footman received some benefits from their internships, such as resume listings, job references, and an understanding ofhow a production office works.68 But those benefits were incidental to working in the office like any other employee and were not the result ofinternships intentionally structured to benefit them. Resume listings and job references result from any work relationship, paid or unpaid, and are not the academic or vocational training benefits envisioned by this factor.3. Displacing Employees:
Glatt and Footman performed routine tasks that would otherwise have been performed by regular employees. In his first internship, Glatt obtained documents for personnel files, picked up paychecks for coworkers, tracked and reconciled purchase orders and invoices, and traveled to the set to get managers' signatures. His supervisor stated that "[i]fMr. Glatt had not performed this work, another member ofmy staffwould have been required to work longer hours to perform it, or we would have needed a paid production assistant or another intern to do it.(H/T to Rebecca Greenfield's analysis of the opinion, the structure of which which I have adopted after reviewing the opinion myself).
Judge Pauley denied summary judgment against the plaintiffs, and certified that the matter was properly brought as a class action, appointing a class representative. In view of the small amount of individual damages, and the expenses of federal litigation, that makes these claims (for now, at any rate) economically viable. The case is one to watch, as all if the plaintiffs prevail and the appellate courts affirm, the way internships are administered will change for many companies.