You Are Now Free To Exploit Your Interns

For the last year or so, non-profit arts organizations have been somewhat nervously wondering whether the criteria being used to define what constituted an internship might be applied to the non-profit industry as well.

The concern arose over a ruling against Fox Searchlight pictures in a case where interns on the film Black Swan where the court found the interns should have been classified as employees instead under the six points of criteria set down by the U.S. Labor Department.

Earlier this month, an appeals panel vacated the decision of the lower court saying the Labor Department criteria was out of date and providing a different criteria.

He argued that the proper way to determine workers’ status was to apply a “primary beneficiary test” — a concept proposed by Fox in which the worker can be considered an employee only if the employer benefits more from the relationship than the intern.

Judge Walker wrote that he and his fellow judges on the panel “agree with defendants that the proper question is whether the intern or the employer is the primary beneficiary of the relationship.”

He further argued that the test should hinge largely on the internship’s educational benefits: for example, whether the internship was tied to the intern’s formal schooling and whether it occurred in an educational setting.

Summer is the high season for internship and apprenticeships in the arts since so many students are out of school. It is fortunate that this ruling came out when it did. Now arts organizations can squeeze more labor out of their interns in the remaining weeks of the summer without any concerns.

Everyone knows that the arts are good for you and that you must suffer for your art. Ergo, any task an intern performs must be more beneficial to them than it is to the employer. Misery and lack of pay constitute authentic experiences for arts practitioners after all.

Yeah well, be that as it may, this is more a case of just because you CAN do it, doesn’t mean you SHOULD. Just because the environment is potentially more relaxed than it was last month doesn’t mean proper standards don’t need to be developed for internships to make the experiences more valuable.

Schools like the Ringling College of Art and Design have clear standards (no more than 20% clerical work) and a series of evaluation forms.

There are a good number of people who don’t enter internships under the auspices of a formal training program. In either case, the success of the internship heavily depends on the type of experience the work site provides/creates.

If anything, an internship should be viewed as an additional responsibility the organization is taking on, not a solution to a lack of labor. Even beyond the consideration that staff members will need to take additional time to train an unskilled individual, time and effort to regularly evaluate and provide feedback to the intern needs to be factored in.

Having informal discussions over lunch or at the bar after hours still constitutes work for staff, especially if the need to address problems arises. Of necessity, intern assessment and evaluation needs to be a much more rigorous process than periodic evaluation of employees. (Not that many arts organizations do that very well, but that is a different post.)

About Joe Patti

I have been writing Butts in the Seats (BitS) on topics of arts and cultural administration since 2004 (yikes!). Given the ever evolving concerns facing the sector, I have yet to exhaust the available subject matter. In addition to BitS, I am a founding contributor to the ArtsHacker ( website where I focus on topics related to boards, law, governance, policy and practice.

I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (

My most recent role was as Executive Director of the Grand Opera House in Macon, GA.

Among the things I am most proud are having produced an opera in the Hawaiian language and a dance drama about Hawaii's snow goddess Poli'ahu while working as a Theater Manager in Hawaii. Though there are many more highlights than there is space here to list.


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