MSNBC, June 14, 2013, Friday
SHOW: ALL IN with CHRIS HAYES 8:00 PM EST (excerpts from transcript)
HAYES: Let`s say you`re 22 years old. You`ve just graduated and you`re looking to start your career. If you`re interested in anything from media, film, publishing, or the fashion industry, it`s hard, while not impossible to find an entry level position that pays you because entry level positions are internships. An estimated 1.5 million people work as interns. About half those internships are unpaid.
Full disclosure here, MSNBC recently began paying its interns so we not have unpaid interns bringing this show to you. Unpaid internships have become so much a part of the landscape of many of these industries that people don`t even think about it anymore as strange that there`s an entire class of people who are asked to work for no pay. And this has really wide ranging and pernicious effects beyond the workplaces at issue because the category of people who can afford to work for no pay is a pretty small one.
It has the effect of funnelling only people with other kinds of wealth, resources or means into these professions. It is affirmative action for the affluent, in its rankest form. Well, this week something amazing happened. I mean, really amazing. A federal judge declared the practice illegal.
Two interns including one of our next guests from the production of the movie “Black Swan” sued in 2011 claiming the company violated federal and New York State minimum wage laws by giving them tasks of typical employees, but not paying them for the work. The case was met with derision from some corners.
(BEGIN VIDEO CLIP)
ANDERSON COOPER, CNN: I don`t want to get into a big debate about labor rules. Wouldn`t it be great if all unpaid internships paid really well? Sure. It would be great if my dog made breakfast for me every morning, but I`m not going to file a lawsuit over it.
(END VIDEO CLIP)
HAYES: Next thing you know we`re going it have to pay dogs but it`s no joke. In fact, the test of whether someone is legally an unpaid intern is a test of who the internship is benefiting. An unpaid internship is by law supposed to benefit the intern, not the company.
One of the questions is if the intern were doing the work, would a paid employee do it? Here`s part of U.S. District Judge William Pauley`s ruling, “In his first internship Glatt obtained documents for personnel files, picked up paychecks for co-workers, tracked and reconciled purchase orders and invoices, and traveled to the set to get managers` signatures.”
His supervisor stated that, quote, “If Mr. Glatt had not performed his work, another member of my staff would have worked longer hours to perform it or need a paid production assistant or another intern to do it.”
Judge Pauley granted summary judgment to the plaintiffs basically saying it wasn`t even a close call. The judge went further certifying a class action lawsuit for interns who worked for Box Entertainment Group from 2008 to 2010. This opened up a possibility of an absolute transformation at the bottom rung of the professional wage hierarchy in America.
Joining me now is Eric Glatt, a former intern, who worked on the production of “Black Swan,” which released in 2010. He was a plaintiff in the case, Rachel [Bien], a lead attorney on the case, an attorney at an employee side law firm, and Warren, an associate professor at Columbia University and co- director of the Columbia program on labor law and policy. It`s great to have you all here.
I will begin with you and I will present you the skeptical take. I`m watching this at home and saying, come on, you knew what you were getting into. You`re an intern. Everyone understands where an intern is going to go. You got hired and did the drudgery and then because everyone wants to sue these days, no one wants to work hard, they don`t want to work their way up. You went and did this stuff. You did the drudgery then turned around and sued.
ERIC GLATT, FORMER “BLACK SWAN” INTERN: Like this is my lottery ticket — Minimum wage.
HAYES: What`s wrong with that characterization?
GLATT: Well, the thing is, I did my unpaid internship because as you stated, this is an entry level way into certain industries. I was switching from financial services. I wanted to pursue a career in film. This seemed to be a way you get your foot in the door.
By luck right when that production was wrapping up the Department of Labor issued a fact sheet laying out what the criteria are for having an employee work on your premises and not get paid if they`re trainees. “The New York Times” picked it up. I read, this is cut and dry, violation of the law. I know it in my gut. Everybody hates it. The law already was there.
HAYES: You were doing this, you were just doing intern stuff and read this article that said that described what you were doing as actually legally not a legal internship.
GLATT: Right, exactly. It was something that people do grudgingly. They may hold their nose and say if that`s what you have to do, if that`s what everybody else does it, just suck it up and do.
HAYES: Rachel, you guys have been working on this case. Are you going to get rid of all internships? I mean, don`t we want 17-year-olds to be able to go and apprentice and learn things? What makes something OK versus not OK both in your eyes and the law`s eyes?
RACHEL BIEN, ATTORNEY FOR “BLACK SWAN” INTERN: Right. Well the case doesn’t get rid of all internships. I mean, the judge was very clear that there could be some internship that are lawful and still be unpaid. What has to happen is the internship has to be structured as a training program that solely benefits the intern. It can`t provide an advantage to the company. So if a company wants to continue to have —
HAYES: So if you ever have the thought, you`re like, my God, thank God I can make my unpaid intern do this thing, that`s an alarm bell.
BIEN: Right.
HAYES: Right? No, I`m serious, that this has not been structured were their benefit.
BIEN: Exactly. When you start to have an inkling that you want to send them to go get coffee that means, you know, the dollar sign should pop up in your head and it means that you have to pay them the minimum wage. We`re not talking about an abundance of money. We`re really talking about minimum wage.
HAYES: How does this practice fit in with the broader way that labor and low-wage work happens in America?
DORIAN WARREN, COLUMBIA UNIVERSITY: It`s important to point out since we`re talking about the minimum wage, in two weeks we will be celebrating the 75th anniversary of the fair labor standards act. So 75 years we`ve had this law in place to protect against these kinds of abuses. There are two other trends. It`s called misclassification where firms misclassify employees as, say, independent contractors and not employees. Therefore, they`re not subject to the same legal regulations.
The second trend is a trend of wage theft that practitioners and scholars call and that is when firms simply don`t pay their workers for the hours that they`ve worked. Whether you call it an internship and you don`t pay workers for doing the same amount, the same kinds of work that they would otherwise be doing if they were paid or classify someone as an independent contractor or don`t pay them for overtime, for instance, that`s wage theft.
Misclassification is the other piece of this puzzle and so workers in the economy broadly speaking have been suffering and it`s actually hurting our recovery overall.
HAYES: It`s particularly acute right now in this moment because there is such a slack labor market. Unemployment is so high, and people are desperate for work and they`re desperate r a foot in the door. I want to hear about how your fellow interns and co-workers reacted when they heard you were doing this. I`m really curious to hear that story right after we take this break.
HAYES: I`m here with former intern Eric Glatt who worked on the film “Black Swan,” lead attorney on his case that was recently decided in his favor by a federal district court judge, Rachel Bien, and Dorian Warren from Columbia University.
Eric, let me ask you a personal question, which was when you decided, you read the article that said, OK, the work I`m doing on this film s is the work that a paid employee should be doing.
GLATT: Right.
HAYES: You read the article then you decided to sue or what did you to next? What was the response of your workplace? You were violating a taboo. Everyone was like, you`re the intern. What are you talking about?
GLATT: The film industry, there`s a lot of freelance work. You go from gig to gig to gig to gig. I kept encountering this again and again and again. People looking for trained professionals to do finish work for free. It was illegal and yet so prevalent. First I tried to get people to, like, form some kind of watchdog group or form from within and there was no interest.
Finally, about a year later, a book came out, “Intern Nation” and I introduced myself to him and I started thinking, there`s a chapter in the book, “Lawsuit Waiting To Happen.” I kept thinking, my God, I can`t believe I`m the one who`s going to file that lawsuit to finally, like, get this to stop. And I realized I was the one in the perfect position to do it.
HAYES: And so you were not the first. There have been others. They have not fared well. They`ve been thrown out and there`s now another lawsuit that I think your law firm filed on Thursday. And these are two former interns against a company that failed to pay them minimum wage at their summer jobs at the “W” magazine and “New Yorker.” What gives you hope that the result you got with Eric is the result other judges are going to give you since there have been other cases that have been brought and haven`t been successful?
BIEN: Well, I mean, I think that the judge really set the stage with this decision in a very well-reasoned and thoughtful decision. He clarified what the standard should be. He adopted the Department of Labor six-factor test and so we have every reason to believe that another court would apply that.
HAYES: The six-factor test is basically there`s a list of stuff that`s like, do you, you know, are you doing work that a paid person would do if you didn`t do it? Yes. OK. That puts you in this column, right, just a checklist, basically.
BIEN: Right. It`s a checklist, but what it does, it creates a very, very narrow exception for trainees who are actually engaged in a training program. And if you don`t satisfy those factors, then you have to be paid. Because it looks more and more like you`re actually an employee and therefore, covered by the wage —
HAYES: I did not realize until I was reading about your case that the legal standard is that there has to be some kind of benefit being conferred to person. I mean, and this just goes to how invisible the practice has become, right. That I just didn`t even actually realize that was the, of course, right, there`s some legal distinction between working for free and interning. And it has become so prevalent, and our expectations of what management can and can`t do have become so lax I think that we don`t notice stuff like this.
WARREN: That`s right. So now the norm, you know, what, 15 years ago when I came out of college and I got an internship in Washington, I was paid. Not a lot of money, but I was paid. Nobody that works on the Hill, by the way, is an intern that`s paid.
HAYES: As an intern.
WARREN: But, yes, so this is the norm now.
HAYES: This is — in the street of government —
WARREN: The folks that made that law all of their interns are unpaid, the very folks that made that law. So this is the new normal, not only in public service employment, but also in the private economy writ large. This is the new normal at not expecting to be paid, frankly, at all, or not getting, you know, overtime or minimum wage when you work normal hours as an employee.
HAYES: OK, so “A” where does this go from here? And “B” convince me this is a genuine social justice issue and not basically the complaint of a relatively thin crust of American society that, like, wants to direct films and is mad that they can`t.
GLATT: Right. Right now, we have student debt topped over $1 trillion. We`ve never engaged in a social experiment like this before. People at the beginning of their professional lives are saddled with six figures of debt and then being asked to enter their working lives by working for free.
Those two things don`t match up unless you`re basically institutionalizing a structure, a privileged class who will do that and everyone else gets left out in the cold. And we have double-digit unemployment for people beginning their careers. We have average pay for people just coming out of school now is lower than it was in the year 2000 because this kind of behavior puts negative pressure on wages.
HAYES: So what we have, we have a debtor class, we have an intern class, basically as people come out. Then we have a large low wage service class and then there`s a small professional class that you take a lot money out of. The opening of the labor market right now, particularly in this economy, is really something else.
Eric Glatt, a former intern who is a plaintiff in this case, Attorney Rachel Bien and Dorian Warren from Columbia University, thank you so much for joining us tonight.
* * *