Tuesday, June 18, 2013

Magazine management needs to pay attention to the thorny issue of unpaid internships

[This post has been updated; after the break] Unpaid internships at magazines may be in jeopardy as the result of recent challenges and court decisions in the U.S. and Britain. 

U.S. District Judge William H. Pauley III ruled last week that Fox Searchlight Pictures violated minimum wage laws and employment standards by not paying two interns who worked on production of a movie.
In the ruling [said an Associated Press story] Pauley said Fox should have paid the two interns who filed the lawsuit because they did the same work as regular employees, provided value to the company and performed low-level tasks that didn’t require any specialized training.
Now Canadian magazines are a little out of Judge Pauley III's jurisdiction, but as we know such trends tend to drift north and Canadian publishers can't afford to be insouciant about this. So long as Canadian magazine employers build this large pool of transient, disposable labour they increase the likelihood that someone will take a run at them.

Two days after the Pauley ruling, two former interns at the New Yorker and W Magazine sued parent company Conde Nast Publications. According to a Reuters story
"Lauren Ballinger, an intern at W Magazine for several months in 2009, and Matthew Leib, who had internships at the New Yorker in 2009 and 2010, said Conde Nast violated federal labor laws. 
"Ballinger received $12 a day to organize accessories, run personal errands for editors and make deliveries to vendors. Leib got a flat rate of $300 to $500 for each three- to four-month internship, which included reviewing submissions to the New Yorker's "Shouts and Murmurs" section, responding to emails sent to the magazine, proofreading and opening mail. 
"The lawsuit, which seeks a class action on behalf of all affected Conde Nast workers, said the Fair Labor Standards Act required the company to pay an hourly minimum wage."
From the smallest cultural titles to the largest consumer magazines in this country, management has come to take for granted internships, unpaid or poorly paid. 

The University of Toronto students' union recently called for a ban on unpaid internships, saying that there are 300,000 "illegal" interns working in Canada. Ominously, in response to the students' letter, Labour Minister Yasir Naqvi said in an email
“If you perform work for someone – unless you are self-employed, in a co-op placement, or a trainee – you are an employee covered under the Employment Standards Act and should be paid – it doesn’t matter if you are called an ‘intern’ or not.”
Similar employment laws apply in various provincial jurisdictions in Canada. Yet they are rarely enforced; in part because it would require interns putting themselves in harm's way by filing a complaint and/or being part of a class action suit. 

An article published in the Globe and Mail last month was headed "Unpaid internships are just wrong" and said, in part
"Interns, who are young and inexperienced, are disproportionately vulnerable to abusive or exploitative working conditions. An intern is not likely to complain, as that can jeopardize employment in the industry, getting a reference letter, or getting hired by the company itself."
(Several top British universities have now banned advertising unpaid internships for new graduates. Labour MP Hazel Blears  is promoting her Internships (Advertising and Regulation) Bill, which she says would  end a loophole whereby employers can advertise unpaid internships although they are unlawful under national minimum wage legislation.)

Magazine employers usually rationalize the situation by saying that they are providing valuable training to the interns (which may be true, but ignores the value that the intern brings by doing what would otherwise be entry level paying work -- such as fact-checking). They have found themselves, so far, able to ignore critics such as Andrew Langille, a Toronto based lawyer and a graduate student at Osgoode Hall Law School. But for how much longer?

Sometimes magazine internships are characterized as "work experience" sheltered under the auspices of a community college, university or training school. Sometimes the internships lead to full-time jobs and editors will point to these "try-outs" as a positive thing, giving them the opportunity to assess candidates, without pesky costs. Awkwardly, recent surveys by the U.S. National Association of Colleges and Employers found said that half of all interns surveyed worked for no pay yet in terms of being offered a permanent job did only slightly better than graduates who didn't do an internship. (It should be pointed out that this relates to all internships, not in media or magazines.)

In Ontario, the Ministry of Labour says that just calling someone an intern doesn't remove the responsibility to meet the terms of the Employment Standards Act, 2000 or the requirement to pay minimum wage (which, in Ontario, is now $10.25 an hour -- or $410 for a 40-hour week.) The ministry  even has a page on its website headed "Are unpaid internships legal in Ontario?" that says:
"One such circumstance where a person can work as an intern for no pay concerns a person receiving training, but it has very restrictive conditions. If an employer provides an intern with training in skills that are used by the employer's employees, the intern will generally also be considered to be an employee for purposes of the ESA unless all of the conditions below are met (emphasis added):
  • The training is similar to that which is given in a vocational school.
  • The training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills.
  • The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
  • Your training doesn't take someone else's job.
  • Your employer isn't promising you a job at the end of your training
  •  You have been told that you will not be paid for your time.
Some magazines, of course, do pay relatively generously or provide "honorariums" (typically $500 a month for a three-month internships) or at least buy their interns transit passes. But most editors and publishers, if pressed, will acknowledge that their internships are only available to people who can afford them; people who live at home or are supported by their parents (or, worse, additional student debt) and who take the internships as a way into the business. 

The irony is that the existence of a robust pool of eager interns essentially accustoms magazine employers to factoring this free labour into their cash flow, avoiding or deferring creation of  entry-level opportunities that interns are making all these sacrifices to get. So, in a sense, interns have been their own worst enemies. 

But publishers and editors might do well to get out ahead of this issue, since they set the terms of these relationships and could face substantial liabilities if challenged and found in contravention of the law. It doesn't take a weatherman to see which way the winds are blowing. 

[Update: Coincident with this post (unknown to me) was a Member's Statement in the House of Commons by Andrew Cash, the MP for Davenport riding, about urban workers and unpaid internships. Here is the link to the text and below is the video of his statement.]

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