How the Black Swan Decision Can and Should Effect Non-Profits

Originally posted at HowlRound

Just as HowlRound was finishing up its tweet chat on “Making a Career, Making a Living in the Arts,” the news broke that a judge for the Southern district of New York ruled that Fox Searchlight had violated the law by not paying its interns.

The U.S. Department of Labor has guidelines on what constitutes an internship and what is minimum-wage work, but those guidelines are subject to some interpretation, and many corporations have proved all too eager to interpret them liberally. Today’s ruling takes a big step towards clarifying these criteria by determining that what interns on Searchlight’s production of Black Swan gained from the opportunity was “incidental to working in the office like any other employees and [was] not the result of internships intentionally structured to benefit them.”

In other words, businesses can no longer claim that simply being on the set or in the rehearsal room is a benefit worthy of an internship.

Non-profits have always had some leeway in these matters because they are allowed volunteers. But there is a legal distinction between interns and volunteers, too. The Department of Labor defines volunteers as people who do not have any expectation of benefits and who are not being trained for a job. In other words, even non-profits won’t be able to simply start calling interns volunteers. Therefore over the next few years, organizations will need to look closely at their internship programs to ensure that they are really “providing training at no benefit to themselves.”

The law on this is still evolving, but as it does, we have a great opportunity to ask questions of ourselves, our economy, and our art. Though companies offering internships cannot do so in expectation of benefiting from them, the industry as a whole can and should determine what our community gains from internships as well as how to best structure them to facilitate those gains without asking workers to provide free labor.

@HowlRound Working for no pay or underpaid has created a false economy in the whole nonprofit sector (not just theatre) #newplay

— Linda Essig (@LindaInPhoenix) June 13, 2013

I was privileged enough to have the support of my parents when I was in college and was able to do two summer internships. For me, as for many people, they provided me with connections as well as valuable hands-on experience. They also involved a lot of tasks that the Labor Department would not have considered legal in the context of an internship.

I’m glad I did these internships, but it troubles me that the only way to begin a career in the theater is to have financial support from somewhere else. If you weren’t born into the middle or upper class, the primary avenue to a career in our field is not an option for you.

Let’s think about this for a second. We talk a lot about diversity in our business–about a desire to serve a variety of audiences and reflect the full spectrum of American life on our stages. Can you imagine how much our art and our audiences would change if people not born into privileged circumstances could take advantage of internships?

We are all on tight budgets–institutions, families, and artists. Clarifying the distinction between what constitutes work, internships, and volunteering will help companies clarify their mission and structure–both keys to balancing their budgets. Finding a way to pay interns for the portion of the work they do that is not training would give whole new groups of Americans a shot at a career in the theater, which in turn would exponentially expand the possibilities of the stories we tell and the people who want to hear them.

If that’s not part of your mission, well I guess I think it should be.

What do you think?

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