By Isaac Butler
Last night on twitter, Jason Zinoman and Mike Daisey got into an extended conversation about a recent ruling on unpaid internships and its implications for theater. Basically, a group of unpaid interns on the film Black Swan sued Fox Searchlight, arguing that the work they did amounted to unpaid labor. They won:
it's the first time a major U.S. court has ruled that zero dollars for legitimate work does not a legal unpaid internship make. "Considering the totality of the circumstances," reads the ruling from federal judge William Pauley, the plaintiffs, Eric Glatt and Alexander Footman, "were classified improperly as unpaid interns and are 'employees' covered by" the the Fair Labor Standards Act (FLSA) as well as New York's labor laws. The judge added: "They worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training."
At a minimum, 20th Century Fox, which is seeking to reverse the decision, will have to pay out the minimum wages earned in that period by the duo. The judge also added "class certification" to a group of Fox interns, and Turner, their attorney, told the Wire that the totality of the judgment "will have a much broader impact in terms of making corporations reexamine their internship programs."
One of the interns' lawyers commented on Jason's piece about unpaid labor at UCB earlier this year.
It has long seemed to me that the unpaid internships in theatre are largely illegal. The question is whether anything will ever be done about it. Back in 2010, when the IRS was making some noise about illegal unpaid internships, the great Adam Thurman wrote:
[T]his is typically how a big regulatory body like the IRS tries to solve a problem.
They start by complaining about it loudly. They consider this a warning shot to everybody before they have to become more actively engaged. So you should take this issue seriously. When the IRS starts publicly talking about something, that means that somebody with some clout has made it a priority.
Now let's be real, the IRS probably isn't concerned with Tiny Theater X, or Little Dance Company Y. When they start cracking down it is going to begin with some bigger, more visible groups in the for profit and nonprofit sector.
They will probably pick one or two, smash them up against the rocks and hope that serves as an example for everyone else.
BUT . . .
That doesn't mean that smaller organizations can not be impacted by this move against unpaid internships.
All it takes is for one unpaid, pissed off, "intern" to make a phone call to the local IRS field office and the ball is officially rolling.
You really don't want that to happen.
So, you may want to fix your internship program.
Now, the IRS never did publicly crack down on a theater using unpaid internships to skirt minimum wage laws. And so Adam's warning has gone largely unheeded. On twitter, Mike mentioned that he has played at theaters where his shows appeared to be entirely staffed by interns.
The question is... what is to be done? I am of the school that if you do work for someone they offer you a wage and then you can positively refuse it should you wish to donate your labor. That if a theater company is charging for tickets, their labor should be paid.
But this seems, in practice, to be unworkable.
Most indie theater I know, for example, can't afford to pay the folks helping them put together the set. But that set still needs to be put together. With the price of renting space to do a show in as high as it is in this town, there's often not a lot of money left over to pay folks. Yet even though that's understandable, and one way to look at it is certainly that you're just a group of people trying to get this show up, that you're a community, a family even, another way to look at it is that folks are being asked to donate their time and labor to building your company, and there is no guarantee that you will ever give them anything in return.
But again.. if you had to pay everyone, maybe that set would never get made. You see a similar thing in online publishing. Huge, important websites are run at such low margins (or so they say, anyway) that they can't afford to pay many of their writers.
I think on some level, we know this is wrong. And as a result of this tension, we have all sorts of frames and justifications to make screwing people out of their wages seem reasonable and ethical to the point where a millionaire rock star can demand that people work for her for free and be surprised when people are upset by it.
I would like the default assumption to be that we're paying people for their work, with very specific and narrow contexts where that's understandably not true. Right now, it often feels like in the arts we have the reverse. An assumption of not paying people, with narrow, specific contexts as to when that won't be the case.
This scares me. It scares me even more when many of the "innovations" that people suggest w/r/t Equity (and particualrly the showcase code) amount to ways to not pay actors. The disconnect between the arts and labor movements-- a disconnect that some trace to HUAC-- is a danger to both.
UPDATE: Howard Sherman gets into some of these issues over at his place. Check it out!