Berklee today is the official alumni publication of Berklee College of Music in Boston, Massachusetts. It is a forum for contemporary music and musicians.
Issue link: http://berkleetoday.epubxp.com/i/67927
THE WORKING MUSICIAN Unpaid Internships: Nice Work If You Can Get It By Robert T. Szyba, Esq. '01 A clear understanding of the laws governing unpaid internships will help young musicians willing to pay their dues to gain valuable experience—and avoid exploitation. Over the years, the music and entertainment indus- try has developed into a host of companies and orga- nizations performing an endless array of specialized services. But in an industry built on various relation- ships, one type of relationship is universally present in almost all facets of the music business: the employer- employee relationship, including variations on the theme. Some people work for others; some people hire others to work for them. Depending on which side of the relationship you are on, state and federal laws impose various obligations and protections on the music industry, like any other industry. During the past several years, one employment Robert T. Szyba '01 majored in Music Business/Management at Berklee before earning his J.D. from Hofstra University School of Law. Szyba is licensed to practice law in New York and New Jersey, and represents both employers and employees in employment law matters. practice has come under scrutiny: unpaid internships. In the music business, unpaid internships are often considered part of the process of paying one's dues. Some companies hire unpaid interns as part of a pro- gram that offers college credits to students, where interns are given opportunities to gain insight into the operations and business practices of the compa- nies that hire them. On the other hand, some compa- nies hire unpaid interns for entry-level positions dur- ing which the interns perform regular job duties for the chance to gain experience to put on their résumés. The interns can also expand their network by being allowed access to the key people working at the com- pany. At many companies within the music industry, unpaid interns are common, although the internships themselves can be extremely competitive. By 2010 the "great recession" made unpaid intern- ships an attractive option for many companies seek- ing to cut overhead in a tough market. In light of the expansion of unpaid internship programs at many companies, the U.S. Department of Labor, Wage and Hour Division weighed in on the issue to give employ- ers guidance on the criteria that must be met when hiring unpaid interns. As a starting point, the Fair Labor Standards Act of 1938 (FLSA) provides that, unless an exemption applies, individuals who are "suffered or permitted to work" are considered employees and thus must be paid at least a minimum wage for all hours worked.1 When it comes to internships, individuals who work for pri- vate, for-profit companies are presumed to be employ- ees under FLSA, and should be paid at least minimum wage and overtime as necessary, unless the following criteria are met to make it a valid unpaid internship: 1. While it includes operation of an employer's facilities, the internship 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 its operations may sometimes even be impeded by the work of interns. 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 in the internship.2 In analyzing whether a position fits the criteria of an unpaid internship, the educational aspect is a focal point. Some factors that can help establish the educa- tional aspect of an internship could be that (1) college credits are offered; (2) the internship involves class- 18 Berklee today