The Black Swan case and the Casting Society of America's recent announcement to cease internship job postings reflects a new world when it comes to using interns in the entertainment industry. The federal and state labor laws are pretty straightforward when it comes to interns, “If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled to compensation under the Fair Labor Standards Act (FLSA).”
Although it might seem unfair and a break from tradition to producers who remember the good ol' days(?!) when they were the interns themselves or who mean no harm because they are just trying to save as much money as possible for the benefit of the production, it really isn't. Using interns is not an excuse to save money or an opportunity to use free labor, it is an opportunity to teach and hone new talent while giving them the chance to learn about the business. To understand this point let's unpack the labor issues a bit. U.S. federal law states that every employee is entitled to a minimum wage plus addition compensation for overtime and certain other benefits like worker's compensation and discrimination laws that protect them. One way to avoid this obligation to the employee under federal law is to declaring the person an intern/trainee. According to the US Supreme Court in Walling v. Portland Terminal Co., the main point is that the intern is a person who is working for their OWN benefit not that of the company.
The Court considered the following six factors in declaring a person's status as an intern:
The Department of Labor requires all six factors to be met. Your production company should have agreements in place that ensure the factors are met while being proactive and diligent in making sure that they are not disregarded. The burden is on the company to make sure that the conditions for an internship have been met. The federal and state laws are many and sometimes vague but it is up to the production companies to do what they can to learn about them and how to comply with them if they seek to hire interns.