The great media-world intern revolt didn’t arise from an army of underpaid fashion-closet assistants, coffee-order-takers and instant-news-rewrite bloggers suddenly storming the castle in fury.
It began when a 40-something who’d built himself a comfortable career in finance read an article in The New York Times.
In April 2010, Eric Glatt had already quit his job at AIG to pursue his first love—film. He had received certification in the art of film editing and was working as an unpaid intern on Fox Searchlight Production’s film, Black Swan.
Then he came across the Times article by labor reporter Steven Greenhouse, titled “The Unpaid Intern: Legal or Not?”
The piece reports on the federal Department of Labor’s plan to increase scrutiny of unpaid interns and details a “fact sheet” the Department had released.
“The Times writes this piece, and I not only start to figure out, ‘ ... this clear-cut legal violation is going on,’ I also understand why no one else has come forward yet …. as soon you sue your employer, you can kiss all the recommendations good-bye.”
“I realized I was in a very unique position because I’m older, I’ve got other career options ahead of me, I wasn’t single-mindedly determined that the one thing I wanted to do was break into this industry,” he said.
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He first contacted the Department of Labor and learned that he could file a back-pay claim for minimum wage. But he worried an individual back-pay claim on his own behalf would not change the industry’s practices, so he began looking for a law firm interested in working with him to file a class-action suit.
“My concern was if I file as an individual a minimum wage backpay claim against Fox Searchlight Pictures, which had already earned over $300 million at the global box office, that check would have been forgotten before the ink was even dry,” he said.
He brought the idea to multiple law firms, he said, but they were reluctant to bring the case.
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Unexpectedly, he received an email from Perlin, who had been contacted by an attorney named Adam Klein. Klein ... a partner at the employment law firm Outten & Golden, which had a history of bringing successful class-action wage-theft and discrimination suits on behalf of employees.
“Within minutes, [Klein] was like, when can you come into the office? I think I must have been in there the next day, and I had one of the best meetings with my life,” Glatt said. Outten & Golden agreed to take the case on a contingent basis—meaning that they would get a cut of any winnings but Glatt wouldn’t be on the hook for any fees if he lost. The class-action suit against Fox Searchlight, with Glatt and his friend Alex Footman as named plaintiffs, was filed in September 2011.
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One of his few supportive friends was Lucy Pickerton, a fellow Wesleyan graduate whom he often saw at alumni happy hours in New York City.
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In March 2012, Pickerton filed her own class-action suit with Outten & Golden—against “Charlie Rose,” where she had worked as an intern. Rose settled that December, reportedly for $110,000. Another young woman inspired by Glatt’s lawsuit was Diana Wang, who brought a class-action suit against Hearst in February 2012, with Outten & Golden’s help.
In 2013, Outten & Golden represented interns in suits against Condé Nast and NBCUniversal. As Capital reported two weeks ago, the firm is currently reaching out to former unpaid interns at Vice Media.
The results of the lawsuits filed so far have been mixed. In the Hearst case, a judge ruled against the former interns. In the Fox case, a different judge ruled in favor of the former interns. Both decisions have been appealed and will be heard in tandem before the Second Circuit Court of Appeals later this year.
In April, though, the Department of Labor came down on the side of the interns, filing an amicus brief in the Hearst case arguing that the interns’ interpretation of the law was the correct one.
More suits are likely to be filed, and there isn’t much that media companies can do to avoid them.
“Obviously, the best way to avoid liability is to pay [interns] going forward,” Juno Turner, an associate at Outten & Golden, said.
But starting to pay interns minimum wage isn’t enough to avoid a lawsuit.
In fact sometimes suddenly paying interns can provoke such a suit. NBCUniversal began paying interns in the spring of 2013, but was sued by former unpaid interns in July 2013, in a suit filed by Outten & Golden. One of the named plaintiffs in that suit, Monet Eliastam, had worked as an unpaid intern for “Saturday Night Live” in 2012 and decided to sue NBCUniversal after being informed that her replacement would be paid.
It all comes down to the statute of limitations on back-pay claims, Turner said. Under the Federal Labor Standard Act, the statute of limitations is three years, and New York state labor law extends that to six years. FLSA also requires that any settlements of backpay claims be court-mediated, which means that a company like Condé Nast couldn’t just set up an informal system of paying former unpaid interns.
“As far as people who have already interned, certainly you could come to an agreement but the FLSA requires that any agreement for settlement of a FLSA claim be court-supervised,” Turner explained. “It would have to be something that was basically part of a lawsuit or a settlement that was administered by a court to ensure that it was a fair settlement and an adequate one.”
The upshot: any New York-based company that paid interns less than minimum wage during the last six years could easily find themselves the target of an Outten & Golden class action suit.
“Companies, I think, are somewhat vulnerable to lawsuits until the statute of limitations expires if they’re looking to settle their claims with past interns,” Turner said.
Dozens of major media companies have used unpaid interns some time over the past six years, which means they are theoretically vulnerable to a suits like those brought against Fox Searchlight and Condé Nast.
These include The New York Times, Wenner Media, New York Media, The New Republic, The New York Observer, Say Media, Abrams Media, Vox Media, Time Warner Cable, CBS, Time Out New York, The Daily Beast, Slate, and Harper’s.
Outten & Golden’s Turner told Capital that the law firm is currently exploring new class-action suits against “several” companies.
“I’m not going to go into the cases that we’re investigating, but we certainly have active investigations against a number of potential defendants,” she said.