US DOL, Unions, and NELA File Amicus Briefs Backing Interns in Fox Searchlight Unpaid Intern Cases

An array of supporters have filed amicus briefs on behalf of the plaintiffs in the Fox Searchlight unpaid intern cases, including the U.S. Department of Labor (DOL), unions such as the Service Employees International Union (SEIU), and the National Employment Lawyers Association (NELA), among others. Glatt v. Fox Searchlight Pictures, Inc., Case No. 13-4478 (S.D.N.Y.). Similar amicus briefs were also filed in a related case on behalf of ex-Hearst interns who are appealing denial of their motion for class certification in the Second Circuit, which will be heard in tandem with the Fox case. Wang v. The Hearst Corp., Case No. 13-4480 (S.D.N.Y.). At issue is the proper legal test for determining whether an intern is an “employee” entitled to wages under applicable federal and state laws or a “trainee,” who is not entitled to such pay and protections. While several of these unpaid intern cases have settled, Fox is appealing the decision by U.S. District Judge William Pauley to grant class and collective action certification to the ex-interns and the finding that the two interns who worked on the set of “Black Swan” were “employees” under New York state law and the Fair Labor Standards Act (FLSA).  

An amicus brief submitted jointly by NELA, the Economic Policy Institute, and the Writers Guild of America East (available here), was filed on July 3, 2014, supporting affirmance of the certification decision. NELA’s brief noted that employers increasingly have been using labels like “intern” to keep workers outside of the protections of employment laws like the FLSA, and that this reflects a larger trend toward greater employer use of “contingent jobs.” NELA Brief at 5. By using job titles other than “employee,” like “independent contractor” or “volunteer,” to categorize workers, companies have undermined the FLSA’s protections. Id. NELA also wrote that simply labeling someone an intern cannot convert what would be considered “entry-level paid employment” into “legitimately unpaid work,” “rather, it is the relationship between the worker and the company that matters. If workers are suffered or permitted to work, their employer must pay them.” Id. at 7. Finally, NELA’s brief states that employers who misuse unpaid interns hurt workers and law-abiding employers alike: the workers are deprived of income and while companies who properly pay their employees minimum wage, overtime, unemployment insurance, workers’ compensation, and payroll taxes are at a competitive disadvantage. Id. at 16-19.

The U.S. DOL also filed an amicus brief on July 8, 2014 (available here), stating that the limited exception for trainees under federal wage requirements does not apply to the unpaid interns who performed routine tasks that would have been performed by paid employees. Further, the DOL supported the lower court’s application of the six-part DOL trainee test rather than the “primary benefit” test urged by the defendants and agreed with the court’s holding that the interns were “employees” as broadly defined by the FLSA, 29 U.S.C. section 203(g). DOL Brief at 1. The DOL test only allows unpaid interns to be classified as trainees in limited circumstances, where the employer derives no immediate advantage from the activities of the intern, the intern is the primary beneficiary of the internship, and the interns does not displace regular employees, among other requirements. On the other hand, the primary benefit test requires an analysis of the totality of circumstances, of which a key factor is who was the “primary beneficiary” of the internship. The U.S. DOL wrote that, although “trainees” whose work is intended for their own benefit are excluded from the FLSA’s wage requirements, that exception does not apply here, partly because the interns performed work that other paid employees would have otherwise had to do. Id. at 19-20. “Nothing in the FLSA or in Portland Terminal [on which the DOL’s six-part test is based] suggests that for-profit employers should be permitted to circumvent their obligation to compensate individuals who are performing productive work by categorizing [them] as interns or trainees.” Id. at 28.

Finally, in the amicus brief filed by several unions, including the SEIU and the United Food and Commercial Workers, on July 9, 2014 (available here), the unions argue that Fox’s proposed “primary benefit” test for determining whether an intern is an employee under the FLSA would effectively “absolve them, and other for-profit employers, [of having to pay] an FLSA-required wage to any worker who receives the ‘primary benefit’ of her job.” SEIU Brief at 5. “If this court were to adopt the primary beneficiary test urged by Appellants, it would significantly narrow the scope of the FLSA and . . . increase the number of workers in the labor market who are not entitled to any pay. Doing so would not only deny productive workers the living wages they legally deserve for their labor, but would also strip them of a slew of other statutory workplace rights – concerning sexual harassment, discrimination . . ., workplace safety, and collective bargaining – that apply only to wage earners. The result would be a sweeping denial of legal protections to the struggling workers who need them most.” Id.

A hearing date for oral argument has not yet been set.