High above Park Avenue attorney Adam Klein tells me he’ll help me sue The Observer. He’s a partner at Outten & Golden, the law firm suing the Hearst Corporation, Fox Searchlight and The Charlie Rose Show on behalf of former unpaid interns just like me.
I began my internship at The Observer in January. This article is one of the fruits of my unpaid labor. See that advertisement? That’s a source of revenue that will never trickle down quite this far.
Mr. Klein believes that in New York, there are hundreds of thousands of us—perhaps a million nationwide—all working for free, deprived of basic worker protections and rights. I barely began describing my job—working 10 to 6, four days a week, writing and researching news stories for the web—before he identified me as yet another powerless and exploited low level employee.
“I would take your case,” he said. “You’re clearly misclassified, you’re clearly entitled to wages. Intern is just a label, it’s meaningless.”
If I had a business card—one of the perks of gainful employment—I would want it to say “reporter,” but a more apt description of my role is probably “editorial assistant.” I do everything reporters do, but I also answer the newsroom phone, shoot pictures, transcribe interviews and conduct supplementary research for the Observer staffers who do get checks every two weeks.
Mr. Klein alleges that the plaintiffs in all three of his cases—and I—were and still are entitled to wages under the the U.S. Fair Labor Standards Act and New York state labor laws because our employers misclassified us under a compensation exemption that does not exist.
“There’s no such thing as an intern exception. What they’re borrowing is this worker-trainee / apprenticeship construct that came out of the 1937 Supreme Court case Walling [v. Portland Terminal Co.],” said Mr. Klein. “Read the facts, it has nothing to do with interns. In fact, it’s about as clear a contrast as you can come up with.”
The Walling case dealt with manual labor trainees who did unpaid on-the-job training for one week. If hired, they were retroactively compensated for the training period. Those who didn’t get the job got nothing. The court ruled that the practice was legal, roughly analogous to being asked to submit a writing test when applying for an office job. Since it’s not productive work and the employer derives no advantage, the laws governing employer-employee relationships that cause the FLSA and New York labor laws to kick in would not apply.
“The employer gained no benefit at all, [they] were not displacing workers—in fact there was a hindrance—they had to hire trainers or provide training to these applicants,” Mr. Klein noted, referring to three of six conjunctive criteria that the U.S. Department of Labor issued to determine the legality of unpaid internships. “The default is, if you work, you get paid. The exceptions are very narrow.”
According to the U.S. Department of Labor, unpaid intern programs must be similar to training in an educational environment. Unpaid interns also need to understand that they will receive no compensation and that they are not entitled to a job after completing the program. In a nutshell, federal law prohibits for-profit companies from dangling the carrot of potential paid employment in front of unpaid employees, or turning a profit off their work.
“They’re physically on the premises of Hearst and other companies,” Mr. Klein noted. “They’re there for a prolonged period of time, they’re at the direction and control of the company, which tells them what to do, when to do it, how to do it. Those are all classic examples of control over the employee,” Mr. Klein said. “I still can’t figure out what the defense is in these cases. All I’ve heard is that it’s hard to certify a class-action. Hearst is challenging us on that basis.”
Mr. Klein said there are potentially 3,000 interns covered under the class-action lawsuit against the magazine publisher and likely hundreds more who worked for Fox Searchlight and The Charlie Rose Show over the past six years, the statute of limitations for wage cases. At most, plaintiffs will receive double hourly back pay but Mr. Klein doesn’t think money is their real motivator.
“For each individual, it’s not going to be a lot of money. I think they’re doing it for the principle,” he said.
That, and what Mr. Klein sees as an egregious lack of enforcement on the part of the DOL, are what motivates him. He scoffed at the notion that there was a lucrative business to be built around suing on behalf of unpaid interns, and a look around his 29th-floor corner office suggests that he doesn’t need to. Mr. Klein, whose business card touts the firm as “advocates for workplace fairness,” just genuinely loves suing companies on behalf of wronged employees.
“All we’re asking for is that these employers pay the minimum wage rate and also acknowledge the employment relationship, such that our clients get workers’ compensation, get unemployment, get social security, get church and disability benefits. Who’s arguing on the other side that the Hearst Corporation can’t afford those basic worker protections and wage provisions?”
I would think no one, but a Hearst spokesperson said Xuedan Wang, the plaintiff in the case against them, “misrepresented that she was a student, when in fact, she was not.” Is Hearst under the impression that people who enroll in college forfeit their rights as employees?
An unsympathetic sentiment toward the intern class is institutionalized—not just in the office—but also online. Eric Glatt, a former intern on the set of Black Swan, and one of the named plaintiffs against Fox Searchlight, said he read a comment in response to an article about the lawsuit that referred to the plaintiffs as “whiney !@#$%^&*.” Other comments suggest that they didn’t want to “pay their dues,” “learn the ropes,” or start out at the “bottom of the totem pole.” A comment on Mr. Glatt’s IMDb profile incredulously asks, “suing black swan yet still wants to claim them on IMDb?!?!” and then goes on to calls him a “chump” for “suing for not paying him while he was a VOLUNTEER intern.”
“This whole notion that these are entitled kids who can’t face up to the job market—to me it’s the companies that feel like they’re entitled to get free labor,” said Mr. Glatt, who is in his early 40s, a few decades older than the typical intern. “If you feel that strongly about it, that somehow free market capitalism can’t address your needs, well then you know what, lobby for a legal exemption from the law.”
Despite that, Mr. Glatt, who is active in an Occupy Wall Street–affiliated group committed to the mission of “rectifying economic inequalities and exploitative working conditions,” thinks attitudes are starting to change.
“More and more, the wind is in our sail now. More and more people get it,” he said. “The consensus is building that unpaid internships at for-profit companies, where interns are doing work, is wrong.”
But there’s a disconnect: Despite the eye-popping number of us that Mr. Klein says are out there, toiling away, a Department of Labor spokeswoman said the office has received fewer than three complaints about the issue in the past two years. The first case of this type—claiming unpaid wages for work performed as an unpaid intern—was filed just last September by Mr. Glatt. He got the idea from a 2010 New York Times article entitled, “The Unpaid Intern, Legal or Not,” but getting someone to represent him wasn’t easy. To date, Outten & Golden is the only law firm that’s been willing to go to bat for any unpaid intern against a media giant.
They’re even having a tough time recruiting clients—myself included.
“The practical matter is that most people don’t want to stick their neck out and file a lawsuit, particularly early on in their career when the reason they’re working in the first place to take advantage of or benefit from the internship work,” Mr. Klein explained.
I certainly don’t. With some back-of-the-envelope math—$7.25 (the federal minimum wage), multiplied by an average of 35 hours a week, times four months (so far), plus that oh-so-sweet double back wages provision—I’ve determined that I could probably squeeze about $6,000 out of Observer Media Group. Before legal fees. The last time I had even close to that much money was right after my Bar Mitzvah. But I’m sticking it out, due to a combination of loyalty—however misplaced—and the hope that maybe, just maybe, if I bust- !@#$%^&*, without pay, for just a little bit longer it’ll get me on staff.
“You’re an excellent illustration of the general problem,” Mr. Klein told me.
But for those who would prefer the legal route, Outten & Golden has created unpaidinternlawsuit.com, a website that invites anyone whose been an unpaid intern in the past six years to answer a questionnaire if they would like to be contacted by an attorney about a potential case.
If there’s a war on young and inexperienced white-collar workers, the collateral effects can actually come back to hurt employers too, Mr. Klein pointed out.
“If you were injured on the job, the employer, you—the both of you—are not entitled to workers’ compensation,” he said. In that sense paying interns protects the employer. “‘Well, if I’m an employee, that’s covered under workers’ compensation and I can’t sue,’” Mr. Klein explained. “It’s defense to a personal injury case.”
Because of my current arrangement, he noted, I also don’t get unemployment benefits or contributions to social security and disability. I don’t pay any earned income tax—nor does The Observer withhold any payroll taxes—because I’m not on the payroll. HR may not even know I exist.
Unpaid internships also create class divides. I’ll be the first to admit how lucky I am to even be able to work for free. Most can’t. High tuition, student debt, health insurance, the cost of living—especially in New York City—are all overwhelming burdens that simply make unpaid internship impossible for many would-be employees. Today’s entry-level jobs are unpaid internships, and the lower-level jobs that do pay go to the candidates with experience—experience one often gains by working for free.
And for now, there appears to be no shortage of eager youngsters happy with the arrangement. As the weather warms and classes let out, the bullpen at The Observer is once again filling up with fresh-faced college students and recent grads, bright-eyed, innocent and eager to please.
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