Hasta La Motion!

Eric Glatt is a former intern on the film Black Swan who, along with Alex Footman, sued Fox Searchlight for unpaid wages related to his internship on the film, which was unpaid. His case has been getting some recent attention from the New York Times, KCRW’s The Business with Kim Masters and other media outlets since the judge on the case recently issued a clear ruling in their favor and as other unpaid internship suits are filed. ProPublica also recently launched a successful Kickstarter campaign for an investigative reporting into unpaid internships and a recent suit against PBS’s Charlie Rose was settled with the interns being awarded over $110,000 in back pay.

In light of all this, and with internships ubiquitous in the motion design, visual effects, and animation fields, Bran Dougherty-Johnson spoke to Eric recently:

Bran Dougherty-Johnson: So I’ve been following the stories about your suit and have read a bunch of articles — the Stephen Greenhouse article, and I just listened to that KCRW interview that you did the other day — and it reminded me that this is a really important issue that we should cover on Motionographer because everyone in our industry is working in animation and visual effects.
Eric Glatt: Right, and you’ve got your own big labor dispute going on.
BDJ: Yes we do, and internships have always been a big part of all the studios I’ve worked at.
EG: Sure, that’s how they keep their costs down.

BDJ: Can you give just a little description of the case against Fox Searchlight and tell me where the case stands now?
EG: So basically, if you’re in the industry, it comes as no surprise that studios, producers, employers control their budgets, among other ways, by using unpaid labor that they called interns. What might be an entry-level, or even sometimes an experienced-level job and add the word intern to it, and they don’t have to pay for it. It’s an industry that’s basically come to structure itself around that practice. It got to the point where I realized I was maybe in a unique position to do something about it by filing a lawsuit, particularly by doing so in a Federal court and getting a lot of attention paid to the practice — and hopefully by doing so, bringing that practice to an end.

BDJ: Now the judge ruled in your favor and ruled that you and the other plaintiff, Alex Footman, were employees. Is the case over?
EG: No, no! Since the case was initially filed the case was amended. About a year afterwards, we expanded the breadth of the suit to include an unpaid internship program run out of the Fox Entertainment Group corporate offices. And that was more of a formal, organized internship program also using unpaid interns. And there’s a different class representative, representing that class. What happened is that the judge agreed that Alex Footman and I were really employees who should have been paid at least the minimum wage, as required by law, and he certified the class of employees in that corporate program for which Eden Antalik was the representative.

BDJ: And they’re still working on it?
EG: It actually gets a little more complicated than that. It appears that Fox is taking all the initial steps necessary to file an appeal. That would probably, depending on how that procedure goes, bring all the claims before a Circuit level judge.

BDJ: So the case is ongoing?
EG: The ruling is final until Fox appeals — which it looks like they intend to do.

BDJ: Would there be a monetary reward, would you get paid?
EG: Yeah, we’re suing for back pay and covered expenses. For example, I used my cell phone and my laptop to help them make a profit. So we would get back pay, expenses, and damages. Damages typically in a back-pay lawsuit are two times whatever it was you’re owed. So it’s not a lottery ticket by any means, but yeah, it’s a lawsuit over pay.

BDJ: Okay, and that’s still to be determined?
EG: Right, that would come after the case is completely finished. Including the class-action. We have to wait until the whole thing has worked itself out.

BDJ: Right, so this could take another year or so…
EG: It could take quite a bit of time.

BDJ: What was the experience you wanted to gain taking on the internship?
EG: I took on the internship in the way that most people would: I had worked on mostly independent documentary films before that, and it looked like, wow to work on a feature with a name director, name stars attached to it — it sounded like a way to make connections and to open up a door to a different tier of film-making.

BDJ: And what was it that you were actually doing on the film?
EG: I performed all the normal roles and duties of an accounting clerk — handling paperwork, petty cash, checks, bank runs, set runs, purchase orders, all the personal files, a lot of day-to-day office work, keeping the accounting department workflow going.

BDJ: What did you hope bringing a lawsuit against Fox would accomplish?
EG: By getting a federal judge to agree that this practice isn’t in compliance with the law, what I hoped to accomplish is to bring this practice to an end, and to get people paid for their labor.

BDJ: Right, so to get a final ruling and to change the culture?
EG: Oh yeah.

BDJ: Cause it’s still a very fuzzy issue. On the Motionographer site we have a job listing. I just searched through it today and found an internship — it pays a stipend, but it’s $30 a day. [Note NY State minimum wage is $7.25 / hour]
EG: Right, it’s not wages. It doesn’t satisfy the requirement that employers who profit from people’s labor pay at least federal and state mandated minimum wage.

BDJ: So you are now studying law at Georgetown, and you’ve moved away from film production?
EG: Yeah, I have started a student group here to bring more law and justice-related documentaries and documentary filmmakers to campus and to the DC audience. In terms of working on productions, I basically realized in taking this step, it was going to be a foreclosed option.

BDJ: In taking the step of the lawsuit?
EG: Yeah. But I realized there was something bigger at stake than whether or not I worked on the next feature film. The feature film will still get made, whether or not I’m involved. But this was something that someone needed to come forward to do.

BDJ: And taking on the lawsuit, did that drive your decision to go to law school?
EG: Not directly, but they both came from the same place. They both came from a place of my deciding to do more, basically to, speak out more truthfully and honestly about what I think about things and how I think things should be – to seek out a little more justice in this world and to put more of my ethics and politics into practice.

BDJ: Are you interested in labor law at all?
EG: I am interested in labor law, and I’m particularly interested in a not-unrelated problem which I see as the dependency of even the legal system on a lot of volunteer and underpaid lawyering. The government uses unpaid legal labor. Non-profits providing necessary social services depend on voluntary and underpaid legal services. And I think ultimately in terms of long-term sustainability that isn’t really a viable way to get the peoples’ work done, to achieve the social aims that society has deemed on the one hand necessary, but on the other hand hasn’t figured out how to pay for.

BDJ: Is that the pro-bono, professional requirement?
EG: Yes, that falls into the area of my concern. I’m afraid thatpeople who provide pro-bono legal services may think they’re doing such a great thing, and maybe at the individual level they are, but at a structural level, what it means is that a lot of people aren’t receiving legal services at all or they end up receiving legal services from people whose time is just so split and compacted that they really can’t provide the quality of services that they really deserve.

BDJ: Right, they’re not getting the best representation that money can buy.
EG: No, not at all, which money is buying on the other side of the table all the time. It’s not something I think a lot of people want to hear. But they didn’t really want to hear about the unpaid internship issue either.

BDJ: And now the Fair Labor Standard Act (FLSA), I think in the last year or two, they re-issued the rules about unpaid internships or clarified something, is that true?

EG: No, what happened was in April 2010, the US Department of Labor (DOL) issued Factsheet #71, which outlines what the rules are, how they interpret the rules governing unpaid internships at for-profit employers. For example, the six-point test that they reiterate in that Factsheet was not devised by the DOL — that comes from a 1947 Supreme Court case. It was a case that settled the question about when a for-profit employer has people on their premises that are just trainees and they’re not helping the employer operate their business — if anything they’re actually impeding the operations of the business from time-to-time, they’re just there to receive training, they’re not helping.

You know, that was 9 years after the FLSA was passed and established a minimum wage. The Supreme Court looked at these factors, and it was a one-week training program at a rail yard. And they were like, you know what, if people on your premises that are taking away from your normal operations because you have to dedicate staff and resources to supervise them, to train them. And you’re not the sole beneficiary of it, i.e. you’re not training them like in today’s day and age with proprietary software, then it’s something that they’re learning that they can apply to any other employer. All you’re really doing is expanding the total skilled labor market. Yeah, if you meet all those criteria, and it looks like all they’re doing is learning, then it doesn’t make sense that you would have to pay them. It’s like a common-sense application of the minimum wage law. Why would you want to pay people who aren’t actually providing labor to you? So that’s what an unpaid trainee at a worksite should be doing, not contributing labor to your profitability but rather just there to learn.

BDJ: The other issue that always come up is that internships are educational, that they’re getting school credit.
EG: I think schools and universities have completely abrogated their responsibility to their students. They may make an argument in their own minds that the value of experiential learning is so high that it makes sense to confer credit for work done — experiential work done on a work site. But they’re not paying attention to the labor law. They’re not in a position where they should be arbiters of labor law. They’re educational institutions, they’re not labor institutions. They’re not paying attention to the fact that this is undermining the health of the labor market  their students are graduating into. As you know, in the industry these aren’t internships that are performed exclusively by college students. Now young adults and employers have internalized the idea that young, relatively inexperienced labor – if they can call it an intern or an internship – suddenly doesn’t need to be compensated.

BDJ: The new entry-level job.
EG: At the same time, students are saddled with astronomical debts. It’s a social experiment we’ve never engaged in before. People, before they’ve even begun their working lives, have six-figure debt on their shoulders. And all that does is profit banks with their interest payments. It’s absolutely unconscionable.

BDJ: Especially in our industry. People have gone to school for a while to learn art and animation.
EG: This is not unskilled labor. It’s basically what employers consider easily replaceable labor. That’s what I think a lot of people neglect when they think about who the minimum wage is meant to protect or who organized labor is meant to protect. It’s not about low-skilled. It’s about being easily replaceable. It’s about defending workers from the employers’ ability to dangle the threat of finding someone else to do it if you won’t do it on their terms.

BDJ: You mentioned before that you’re familiar with the visual effects labor struggle.
EG: Oh yeah, I’ve seen it a little bit from the sidelines. And it’s totally interrelated…
BDJ: Cool, well it’s just interesting to hear someone who’s not in the industry, just that you’re knowledgeable about it.
EG: Well, I pay attention a lot to labor issues related to the film industry and other culture production industries. [The VFX industry] was brought to my attention particularly around the Oscars because of the protest outside [the event venue]. I think they’re both examples of studios figuring out quote-unquote clever ways to control their budgets. Meanwhile they’re making absolutely ridiculous profits. What was it, Life of Pi? — I mean, they made oodles of money.

BDJ: They sure did. Well, thanks so much Eric for taking the time to talk to us.
EG: Great! Oh, thank you.

Links:
Department of Labor: Factsheet #71
KCRW: A Former Intern Who Sued Fox Speaks Out
NYTimes: Judge Rules That Movie Studio Should Have Been Paying Interns
ProPublica: When Is It OK to Not Pay an Intern?
Reuters: PBS’ Charlie Rose settles with unpaid interns as lawsuits spread
Intern Labor Rights:
NYTimes: The Unpaid Intern, Legal or Not?

Posted on Motionographer