The Southern District of New York Rules That Internships Must Be Educational (Unlike the Vince Vaughn and Owen Wilson Film of the Same Name)

by BakerHostetler

It has been said that the vast majority of movies coming out of Hollywood these days are “brainless.” Despite that (often accurate) description, there are always a handful of films that manage to squeak into theaters and earn critical praise for their intelligent, thought-provoking stories, and educate the audience on a particular subject matter or character. It is ironic, perhaps, then that the critically praised Black Swan, which garnered Natalie Portman a Best Actress Oscar in 2011, was the subject of a lawsuit brought by several interns who claimed that their unpaid internships on set were so brainless and devoid of education that they were more properly classified as employees. The Southern District of New York agreed with the plaintiff interns and ruled that they (and the class) were, in fact, performing the work of employees and were therefore entitled to the rights and benefits thereof.

Before pecking into the meat of the court’s decision in Glatt, et al. v. Fox Searchlight Pictures, Inc., Case No. 1:11-cv-06784 (S.D.N.Y., June 11, 2013), it is worth noting that the case spans the country from coast to coast. The action was brought as a putative class (and collective) action under the Fair Labor Standards Act, New York Labor Law, and California Unfair Competition Law. This alone makes the fact that the plaintiffs won summary judgment and class certification on the question of their employment status potentially devastating for employers nationwide.

In support of its ruling for the plaintiffs, the court turned its lens on to examine what the plaintiffs were doing as “unpaid interns” for Fox Searchlight. Because the FLSA demands that any employer who “suffers or permits work” must compensate its employees, the statute enumerates six criteria for determining whether an internship may be unpaid:

  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 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;
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent on the internship.

Id. at *31. Put into shorthand, the film studio could not “feather its nest” during the production of Black Swan by “hiring” unpaid interns to perform work that would otherwise have gone to paid assistants or aides. An internship should be an educational experience that benefits the intern (and less so the studio). The closer to an educational environment (not necessarily a “classroom” environment), the more likely that a court will find the internship may be unpaid without violating the FLSA. It was in this regard that Fox Searchlight laid a big, fat egg.

The record displayed that the interns were performing “routine tasks that would otherwise have been performed by regular employees.” Id. at *37. For example, one of the plaintiffs spent his time obtaining documents for personnel files, picked up checks for coworkers, tracked and reconciled purchase orders, traveled to the set to get signatures, making photocopies, organized file cabinets, drafted cover letters, assembled office furniture, took out the trash, took lunch orders, made deliveries, and ran errands. In the court’s eyes, “This is work that otherwise would have been done by a paid employee.”

The court did point out that while the interns did receive some benefit from the work in the form of resumé listings, job references, and an understanding of how a production office works, those benefits were “incidental” to working in the office like “any other employee” and were not the result of a structured internship that was designed specifically to benefit them.

Ultimately, the ruling will ruffle more than a few feathers. Unpaid internships (both in the film industry and for any employer) are a source of potential litigation as employers continue to try to find a golden egg by acquiring low-cost labor in a difficult economy. In fact, just over a month ago, we noted a case from the same district that denied conditional certification for interns. Wang v. The Hearst Corporation, Case No. 12-CV-793 (HB) (S.D.N.Y. May 8, 2013). The court in that case, however, denied the plaintiffs’ motion for class certification without spending a great deal of time analyzing what duties the interns performed. 

It is notably apropos that just last weekend, Hollywood uncaged the derided (and likely brainless) The Internship upon the world. While it is unlikely that the Southern District of New York timed its decision in Glatt to coincide, the fact remains that employers must be more vigilant than ever to ensure that any unpaid interns are, in fact, meeting the necessary criteria of the FLSA. Merely finding an individual who is willing to “work for free” is not enough.

The Bottom Line: This a dangerous case for employers, plain and simple. Fox Searchlight now faces an uphill battle, given that the plaintiffs have a certified class and a summary judgment ruling finding that they are properly classified as employees, rather than unpaid interns.

*Please note that this author specifically avoided using the obvious comparison to “The Ugly Duckling.”  Until now.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.