Berklee Today

JUN 2012

Berklee today is the official alumni publication of Berklee College of Music in Boston, Massachusetts. It is a forum for contemporary music and musicians.

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room time; (3) the employer teaches the intern skills that are transferrable to other companies or industries and that aren't limited to the business of a particu- lar employer; and (4) interns are assigned to shadow employees who take on a role akin to mentors. Under these criteria, an unpaid intern may have the oppor- tunity to learn directly from key people at artist man- agement companies, recording studios, record labels, concert promoters, radio stations, instrument makers, and various other music companies. Early in a person's career, such an opportunity can be priceless. Where education is the focus, an intern probably does not perform routine work of the employer's busi- ness on a regular basis. For example, interns who are filing, performing clerical work, assisting customers, working as a receptionist or an assistant are not likely to qualify as unpaid interns. Thus, tasks such as mak- ing coffee, running errands, and answering phones are unlikely to be suitable for an unpaid internship under the regulations. Another part of the analysis should consider the intern's role in relation to other employees at the com- pany. Individuals performing a limited set of duties and reporting to the same supervisor as other paid employ- ees will likely be considered employees. You could also ask, "If the intern were to quit, would someone be hired for pay to replace this person, or would existing employees have to work additional hours to perform the intern's duties?" If the answer is yes to either ques- tion, the position is not likely to qualify as an unpaid internship and instead indicates an employment rela- tionship. The U.S. Department of Labor's criteria under the FLSA form the minimum protections under the law that applies throughout the United States. Some states, such as New York, have imposed additional requirements and/or factors to consider. Thus, it is criti- cal to look to the federal law under FLSA as well as the state and local laws that may also apply. Since the Department of Labor clarified the require- ments under FLSA, several lawsuits have been filed seeking at least minimum wages for work done by indi- viduals hired as unpaid interns. Notably, in September 2011, Eric Glatt and Alexander Footman, who worked as unpaid interns on the production of the movie Black Swan, filed a class-action lawsuit against Fox Searchlight Pictures Inc. in Manhattan federal court.3 In February 2012, Xuedan Wang, who was a "head acces- sories intern" for Harper's Bazaar magazine, filed a similar lawsuit against the Hearst Corporation.4 Both lawsuits allege multiple violations of federal and state laws that provide for minimum wage and overtime compensation. This area of the law affects both employers and employees within the music business. As Berklee students and graduates transition from school into careers in the entertainment industry, they want to establish toeholds in various cities and facets of the business. At some point, many are likely to work as unpaid interns. Some will be grateful to gain experi- ence that may secure a paying job at another company down the road. Others will intern with the hope that they will be hired into a paid position after completing their internship. Others still will use the opportunity to make as many connections as they can to help with their own careers. The availability of people willing to do anything to gain entry into the music business is likely to prove tempting to employers that are contend- ing with a tough economy. Ultimately, there is a great deal at stake with unpaid internships for the companies looking to hire as well as for those looking to break into the entertain- ment business. But when the unpaid internship offers opportunity to learn in the real world, from the actual people who are involved in the nuts and bolts of the music industry, the unpaid internship is nice work—if you can get it.* *The information provided in ths article is intended for educa- tional purposes only and should not be construed as providing legal advice regarding an individual situation. No attorney-cli- ent relationship is created between the reader and the author. Endnotes 1. Fair Labor Standards Act, 29 U.S.C. § 201 et seq. 2. U.S. Department of Labor, Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, Apr. 2010, available at http:// www.dol.gov/whd/regs/compliance/whdfs71.pdf (last visited April 4, 2012). 3. Glatt v. Fox Searchlight Pictures Inc., 11-cv-6784-WHP (S.D.N.Y. 2011). 4. Wang v. The Hearst Corp., 12-cv-0793-HB (S.D.N.Y. 2012). Spring 2012 19

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