NEW YORK -- They’re a staple of tens of thousands of offices during the summer time – the lowly intern, asked to make coffee and shuffle mail for little to no pay, all for a line to add to their resume.
But the unpaid internship is under assault, at least in New York, where employment lawyers are filing lawsuit after lawsuit against media companies over unpaid internships – and winning.
Days after a New York judge ruled that Fox Searchlight Pictures violated labor laws after using unpaid interns to do menial tasks on the movie “Black Swan,” two interns have filed a lawsuit against publisher Conde Nast in the same court for violations of labor law. The lawsuit alleges that W Magazine and the New Yorker violated New York and federal labor laws by structuring unpaid internships like a job, rather than like a learning opportunity, and seeks to recover wages for the two interns named in the lawsuit.
According to the lawsuit, Lauren Ballinger, who worked for W Magazine between June and October of 2009, was paid $12 a day, and regularly worked 12 hours unpacking accessories and going on personal errands for editors. She was told to treat the internship “like a job” and was given, along with other interns, a to-do list of tasks that needed to be accomplished each day.
Matthew Leib, the other plaintiff in the suit, was a summer intern in 2009 and 2010. He was paid $300 to $500 per internship, where he proofread and opened mail, among other tasks.
Conde Nast “failed to pay Ballinger and members of the Intern Class minimum wages for all hours worked to which they are entitled under [New York labor law],” the lawsuit says.
It may seem that minimum wage laws shouldn’t apply to unpaid interns, but if the internship does not fulfill certain Department of Labor rules, it isn’t counted as an internship. There are six points that the Department of Labor looks for when determining if an internship is valid, or whether the intern should be classified as an employee, and thus receive at least minimum wage.
“Probably the biggest is that they can’t be providing an immediate benefit to the employer,” said Juno Turner, a lawyer at Outten and Golden, which filed the suit on behalf of the plaintiffs. “It needs to be a structured training program approximating what an intern would be learning in school.”
The judge in the case concerning Fox Searchlight wrote in his opinion that the unpaid interns who sued Fox “were classified improperly as unpaid interns and are 'employees'" under New York labor law and the federal Fair Labor Standards Act. Lawyers for Ballinger and Leib hope to get a similar ruling, as well as a class certification, allowing them to represent other interns at the company.
The firm is also representing a former intern at Harper’s Bazaar magazine who is suing Hearst Corp. for violating labor laws. The "Charlie Rose" show settled with an intern who had filed a similar lawsuit, and agreed last year to pay back wages to a class of interns in another case filed by Outten and Golden.
Experts say this will likely be the beginning of a steady stream of lawsuits filed on behalf of unpaid interns after the Fox Searchlight decision. The poor economy during the recession motivated many companies to cut costs by offering unpaid positions, including the Los Angeles City Attorney’s Office. At the same time, many interns accepted unpaid positions, not being able to find anything else.
“This is one that’s going to have some shock waves,” said David Yamada, a law professor and director of the New Workplace Institute at Suffolk University Law School in Boston.
However, many companies are still posting job listings for unpaid interns online after the ruling. Some, such as the Door, a nonprofit in New York, said they hadn’t heard of the ruling. Others, such as Variety, stressed that their internships, while unpaid, were for college credits only.
Turner, the Outten and Golden lawyer, said her firm had been getting more and more inquiries from interns interested in filing similar suits. She doesn’t represent employers, she said, but “If I did, I would be suggesting to my clients that they take a real, hard look at their internship programs right away.”
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