Chris Davie has worked at the elite level of audio production and served as the vice president of the US division of SAE Institute. He is now managing partner of the consultancy firm, Sonority Group, specializing in education for the professional audio industry (sonoritygroup.com).
It’s 3 a.m., I just helped the band load out, vacuumed the control room, prepped the morning coffee and gave the bathroom a serious cleaning…. This was my life as an intern decades ago in a small recording studio planted in Nashville’s Music Row. I loved it.
Was this for my benefit—or that of the studio? I, for one, think it was to my benefit and recall that time with great pride and appreciation for what laid the foundation of my career.
Today, however, the question of who is the beneficiary in studios’ internship relationships has become more important as employment regulations have been brought into the limelight. As musicmakers, regulations are not typically on the top of our to-do list; however, in today’s world, if you are offering internships, it’s a must.
How studios manage their internship programs vary, from those that fall comfortably in compliance to those that dance on the fringes. The Department of Labor (DOL) has long used its Fair Labor Standards Act (FLSA) to distinguish if an unpaid internship is indeed eligible to be considered as such and is not actual employment (which then follows wage and overtime laws). A set of six criteria is used to make this determination within the “for-profit” private sector. These are:
• The internship is similar to training which would be given in an educational environment.
• The experience is for the benefit of the intern.
• The intern does not displace existing employees, but does work under close supervision of existing staff.
• The employer derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded.
• The intern is not necessarily entitled to a job at the conclusion of the internship.
• Both the employer and intern understand that the intern is not entitled to wages for the time spent in the internship. All six of these criteria must be met for an internship to not be considered an employment relationship.
Enter 2013 and Glatt v. Fox—three interns on the movie Black Swan filed suit against Fox Searchlight Pictures, claiming their internships should be classified as employment and thus compensated as such. The federal District Court ruled in favor of the interns using the DOL’s set of six criteria. The case was then heard in the Second Circuit Court of Appeals, which brought the DOL’s criteria into question and provided new criteria to test who is the primary beneficiary of an internship. Using the new criteria in July, 2015, the higher court reversed the judgment of the lower District Court. The higher court’s criteria—a set of seven deciding factors similar to those of the DOL—modified the requirements that the employer could derive no immediate advantage from the internship and on occasion its operations might be impeded, and then bolstered the importance of the educational component of an internship.
What does all this mean for the professional audio community and specifically employers and schools? I believe the link between the two is a key to the health of our industry; working together has never been more important with regard to the transition of the next generation of engineers into the professional community. When schools and employers have a solid link and use internships as a conduit to continue developing new talent, everyone wins. Schools that have not adopted formal internship components within their curriculums should consider it. Employers not already doing so should consider working closely with those schools offering formal internship programs. This is not the only way to operate within the letters of the regulations; however, it appears the cleanest.
It is unknown whether the seven guidelines from the very influential Second Circuit court will be adopted by the Department of Labor or if other federal courts around the country will follow suit. What we do know is that when internships are structured in a way that integrates the intern’s classroom learning with practical skill development in a real-world setting, the internship will likely sit on firm ground in the eyes of the regulators.