By Kevin M. Goldberg
My work as an attorney focuses mainly on the “pure journalism law” issues facing reporters and the media in the areas of First Amendment, access to information, copyright, trademark, et al. But from time to time I see a related issue that just grabs my attention. As a former journalism intern, recent litigation over the legality of unpaid internships is one of those issues.
Full disclosure: You should know that the National Press Foundation, where I serve as vice chairman of the board of directors, pays its interns minimum wage.
If you haven’t been following, the issue is pretty simple. In April 2010, the United States Department of Labor released its “Fact Sheet # 71: Internships Under the [FLSA]” which provided some clarification on whether interns performing work for a for-profit business have to be paid a minimum wage under federal law. The fact sheet identified six criteria to help determine whether interns should be paid:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
It didn’t take long for former interns – and enterprising lawyers willing to represent them – to start filing lawsuits. As I explain in a post I wrote for my firm’s “CommLawBlog” in August 2013, these were mostly filed in federal court in New York and were mostly successful. More lawsuits ensued.
Things took another turn in 2014, as I explained in a second post for CommLawBlog. Despite significant success in early litigation, the interns’ fortunes got even better when a judge for the U.S. District Court for the Southern District of New York granted “conditional class certification” to former Gawker interns. This will make it easier for formerly unidentified plaintiffs to join this case and makes it more likely that other cases will be filed in the future.
In summary, while the days of unpaid internships of the type I enjoyed – where I was just happy to get experience and some school credit – may be numbered. At the very least, many media – and other – companies will have to look closely at their internship programs and determine whether changes are warranted to ensure they fully comply with the Department of Labor’s and federal courts’ interpretations of who qualifies as an “unpaid intern” and who should be paid.
Kevin M. Goldberg is an attorney at Fletcher, Heald and Hildreth LLC and he is vice chairman of the National Press Foundation.