Victory in Labor Lawsuit Against Fox - Interns Win

In a ruling that is likely to be well read throughout Hollywood and maybe corporate America at large, a federal judge on Tuesday has handed a couple of the interns suing Fox Searchlight a victory on summary judgment and also certified a class action over the internship programs of Fox Entertainment Group.

The lawsuit was first brought in late 2011 by two interns -- Alex Footman and Eric Glatt -- who both worked on Fox Searchlight's Black Swan and claimed that the company's unpaid internship program violated minimum wage and overtime laws.

Read Full Ruling here... http://www.hollywoodreporter.com/sites/default/files/custom/Documents/fox_interns.pdf

The lawsuit then got bigger with amended claims brought by added named plainitffs such as Kanene Gratts, who worked on Searchlight's 500 Days of Summer as well as Eden Antalik, who participated in the FEG internship program. To prevail, they would need to jump several hurdles, including showing that the training programs set up weren't for the advantage of the trainees.

On Tuesday, federal judge William Pauley issued a ruling that is very favorable to the suing interns.
Regarding Footman and Glatt, the judge grants summary judgment to them that Searchlight was their "employer," as that term is defined in the Fair Standards Labor Act and New York Labor Laws.

Fox attempted to convince Judge Pauley that the production companies -- like Lake of Tiers Inc. instead of Searchlight -- were responsible for hiring and controlling the interns, but the judge didn't buy it. Judge Pauley writes that "Searchlight's power to fire Black Swan production staff was unbridled," that "Searchlight closely supervised work on Black Swan," that "the crew of Black Swan was tied to Searchlight, not Lake of Tears," and so forth.

The judge also looked at whether the internship program qualified as a bona fide training program under the Labor Department's six criteria for determining whether an internship might be unpaid. These factors include whether the internship is similar to training that would be given in an educational environment, whether it is for the benefit of the intern, whether the intern displaces regular employees, whether the employer derives immediate advantage, whether the intern isn't necessarily entitled to a job after the conclusion of the internship and the understanding about no entitlement to wages.

After going through the experiences of Footman and Glatt on Black Swan, here's what Judge Pauley concludes:
                         "Considering the totality of the circumstances, Glatt and Footman were classified improperly as unpaid interns and are 'employees' covered by the FLSA and NYLL. They worked as paid employees work, providing an immediate advantage to their employer and perfomed low-level tasks not requiring specialized training. The benefits they may have received -- such as the knowledge of how a production or accounting office functions or references for future jobs -- are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school. This is a far cry from [the Supreme Court's decision in] Walling, where trainees impeded the regular business of the employer, worked only in their own interest and provided no advantage to the employer. Glatt and Footman do not fall within the narrow 'trainee' exception to the FLSA's broad coverage."

Gratts, who completed a similar internship on 500 Days of Summer, was not as lucky. The judge grants the defendant's motion that her claims are time-barred.

But Judge Pauley's decision doesn't end there.

The federal judge in New York has certified a class action that will explore internships throughout the corporate departments at Fox Entertainment Group. Unlike a fellow judge who recently refused to certify a class action for some 3,000 fashion magazine interns working at Hearst, this judge sees commonality and the other factors that are required to move forward such a class action.

Specifically, the judge rules "Antalik has identified several common questions relevant to determining NYLL violations, including: (1) whether Defendants derived an immediate advantage from interns' work, (2) whether interns displaced regular employees, and (3) whether FEG's internship program was for the benefit of interns."

The judge adds, "Here, the relatively small recoveries available to individual plaintiffs make a class action a more efficient mechanism."

UPDATED: Fox says it is "very disappointed" after two interns who worked on "Black Swan" are granted a summary judgment win, while another intern who worked in Fox's corporate department will now be leading a class action suit.

Read More... http://www.hollywoodreporter.com/thr-esq/interns-win-huge-victory-labor-566360

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Interns Owned by Hearst Failed in a Bid Certification in a Lawsuit over Exploitation of Cheap Labor

After determining that not enough commonality existed among some 3,000 fashion magazine interns, U.S. District Judge Harold Baer adjourned a trial "sine die," which translates from Latin to Cosmopolitan as "99 Ways the Judge Won't Give Me the Day."

Wasting no time, Fox raced to the federal judge in its own case to tell him to read up. As U.S. District Judge William Pauley is prepared within a matter of weeks to bless or deny class certification in the most significant challenge to Hollywood internships ever, Fox believes that individuals who once interned on such films as Black Swan and (500) Days of Summer as well as those who interned in its corporate department will soon experience the fate suffered by Hearst's interns.

Fox has reason to be confident.

In the Wang v. Hearst case, it was revealed that since 2008, the publisher worked to reduce costs by decreasing its headcount and expenses by increasingly using interns. Discovery showcased the fact that 229 full-time employees were eliminated as individuals like Xueden Wang, Erin Spencer and Elizabeth Mancini worked nearly full-day shifts for academic credit.

In 2010, the Labor Department published a fact sheet:  http://www.dol.gov/whd/regs/compliance/whdfs71.htm    in the wake of a Supreme Court ruling (Walling v. Portland Terminal Co.) that discussed how training programs should be for the advantage of the trainees. The memo spelled out six factors on how internships could overcome the employment label. One example? "The intern does not displace regular employees, but works under close supervision of existing staff."

The Labor Department memo "puts some meat on the Walling bones," said Judge Baer.

The judge continued by saying that a genuine issue of fact existed as to whether or not Hearst lived up to the standards articulated by the Labor Department -- denying the plaintiffs' motion for partial summary judgment on the possibility that a jury could find in favor of the defendant.

But more importantly, Judge Baer shrugs off the plaintiffs allegation that Hearst had a “centralized policy” of classifying all interns as unpaid, non-employees and determining that "the commonality requirement is not satisfied because Plaintiffs cannot show anything more than a uniform policy of unpaid internship." Further, the judge finds that the plaintiffs failed to meet certification tests of predominance (whether proposed classes are sufficiently cohesive) and superiority (whether a class action is superior to other available adjudication methods).

In his ruling, Judge Baer writes, "While there is undeniable efficiency that stems from consolidating and concentrating the litigation of similar claims, the individualized nature of proofs in this case signals that case management would be difficult, if not near-impossible, and separate actions may be more appropriate."

That's just what Fox wanted to hear. The company is facing a similar lawsuit over its internship program with damages estimated to be $5 million. Here are the arguments made by plaintiffs and Fox over class certification before the Wang ruling came out.

Now that a judge has delivered a big blow to one internship class action, Fox demands the same on another.

Read More... http://www.hollywoodreporter.com/thr-esq/hollywood-interns-class-action-lawsuit-520693