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Cautionary Tale for Employers: Unpaid Interns from the “Black Swan” File Lawsuit for Unpaid Wages Against Fox Searchlight Pictures

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgTwo interns who worked on the set of “Black Swan” have filed a lawsuit in federal court alleging that Fox Searchlight Pictures (“Fox”) violated the federal Fair Labor Standards Act and the New York Labor Laws. The lawsuit alleges that Fox, who produced Black Swan, made the interns do menial work without providing them with educational work experience. Fox classified the interns as exempt from pay and made them do menial work which otherwise should have been done by paid employees. Our firm has worked with many companies and employees to ensure that a proper classification of employee vs. intern under the NYS Department of Labor’s guidelines was made. Whether you are an intern or a company we can help determine the correct worker classification.

Fox has over a 100 unpaid interns who play a very important role in its productions performing as assistants and bookkeepers as well as doing secretarial and janitorial work. By misclassifying the workers as interns rather than employees, Fox can get away with not paying them minimum wage, overtime pay as well as other legal protections given to employees.

The lawsuit is trying to obtain class action status for over a 100 unpaid interns that worked on different Fox productions. The lawsuit not only seeks back pay pursuant to state and federal laws but also an injunction to stop Fox from using interns illegally.

The U.S. Department of Labor (“DOL”) has established guidelines in determining whether an internship must be paid minimum wage and overtime. In deciding whether an internship should be paid or not, the following six criteria found on the DOL”s Fact Sheet #71 should be applied:

1) The internship is similar to training which would be given in an educational environment even if it includes actual operation of the employer’s facilities;

2) The internship experience is for the intern’s benefit;

3) The intern does not displace regular employees, but works under the close supervision of existing staff;

4) The employer providing the training does not derive immediate advantage from the intern’s activities; and on occasion its operations may actually be impeded;

5) The intern is not necessarily entitled to a job at the end of the internship; and
6) The employer and the intern understand the intern is not entitled to wages for tiem spent in the internship.

One of the interns, plaintiff Alex Footman, who worked as a production intern from October 2009 to February 2010, did no work related to production or film studies. He worked 5 days a week for at least 40 hours. His job was to make coffee for the production office, make sure the coffee pot was full, take lunch orders, take out the trash, and clean the office. Clearly, Footman, Wesleyan graduate who majored in film studies did not sign up to be a coffee intern.

The other intern, Eric Glatt, who has an M.B.A. was an accounting intern for “Black Swan” who took the internship because he wanted to go into the film industry. As an intern, he prepared documents for purchase orders and petty cash and created spreadsheets to track missing information.

Given the high rate of unemployment and the economic climate, unpaid internships have risen in the past few years. In his book, Intern Nation: How to Earn Nothing and Learn Little in the Brave New Economy, Ross Perlin estimates that about 500,000 unpaid interns provide $2 billion in free labor every year and that many work in violation of state and federal labor laws.

Many young graduates, who can’t find a job, take internships just to get their foot in the door. Secretary of Labor Hilda Solis has stated that “good internships – paid or unpaid – are a valuable bridge between higher learning and the workplace. And enforcement is tough because no one has an incentive to report the problem.” In this instance, Black Swan cost $13 million to produce and grossed over $300 million worldwide. Clearly, Fox made out by keeping it costs low. However, it is a grave injustice that not only did Fox use the interns for menial work without paying them but these interns wasted their time and did not benefit with training they thought they had signed up for.

If you are being misclassified as an intern, call our Wage and Hour Attorneys at Villanueva & Sanchala at (800) 893-9645 to help you obtain your rightful wages and overtime pay.


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