Possible Setback In Push To Eliminate Unpaid Internships

Just before Christmas Non-Profit Quarterly called attention to a situation of some concern. Recently the National Labor Relations Board (NLRB) overturned an administrative law judge’s ruling and determined that employees were not protected when they advocated for non-employees.

In this particular case, it was employees of Amnesty International  signing a petition supporting paying unpaid interns who were determined to lack protections. However, as the article points out, this ruling would be equally applicable to other categorized as non-employees.

Molly Lee Kaban, an attorney with Harrison Bridgett in San Francisco, who observes that “other types of nonemployees, such as gig workers and other independent contractors, will not be able to rely on support from employees within an organization to advocate on their behalf. Uber employees, for example, can potentially be disciplined or terminated for advocating on behalf of nonemployee drivers who want to be classified as employees. This could lessen the pressure on employers to make changes.”

In the non-profit arts this might translate to a lack of protection for orchestra musicians who were advocating for better pay for substitute musicians who were classified as independent contractors. Similar to the Amnesty International case, employees of an arts organization advocating that interns be paid could likewise run into problems with their employers.  Obviously, labor law is not my area of expertise. There may be other rules and contract agreements that would forestall concerns about reprisals.

The are shades of gray and nuance to the rules. The NLRB’s basis for overturning the administrative law judge’s decision was based on the board’s interpretation of Amnesty International executive director’s comments as expressions of concern where the judge’s view was there were implications of reprisals.

Even if independent contractors do have more of a basis for being considered employees because they are paid, this ruling undermines the effort to eliminate the use of unpaid interns in both the for- and non-profit world.

As the National Law Review article on the case notes, trends are indicating potential barriers to graduate students, among others, efforts to unionize as well:

The NLRB has been signaling a hesitancy to impose obligations on employers outside the traditional employment context. It has proposed exempting paid undergraduate and graduate students from the NLRA, for example. Over the last several years, as employers are forced by the low employment rate to increase their use of nonemployees, unions have increased their efforts to expand the NLRA’s reach by organizing non-traditional workers, including temporary campaign workers and graduate students.

Some Guidance On Researching Open Meeting & Records Laws In Your State

In response to my post last week about the surge of people seeking my advice regarding the open meeting and open records laws of their states based on a 2016 ArtsHacker post I had written, ArtsHacker editor-in-chief suggested I write another post listing some of the resources I had found.

I responded that given every state had its own laws, there really wasn’t any centralized source(s) of information I could point to that a person could reference.

Much to my chagrin, there is still apparently a lot one can say on the matter as I managed to hammer out more than 1000 words of advice regarding how to research open meeting and records laws in your state.

One of the interesting things I have come to realize is that in some states, it appears that technically the members of the board of directors may not have the right to review the records of the organization they govern. There may be more to write on this topic in the future…

 

More About Open Meeting Laws & Non-Profits

Let Me Tell You What You Can Do With That Phone

Hat tip to Howard Sherman for calling attention to a New York Times article about cell phone use at live performances that the paper has set up as an study guide/student discussion resource.

The article opens with a video of Joshua Henry taking a phone from an audience member and tossing it under the seating riser (without missing a note in his song), noting that Henry had already been indicating his disapproval with being recorded for three songs.

It also mentions the recent incident in Cincinnati when violinist Anne-Sophie Mutter stopped in the middle of a Beethoven concerto to call out a woman recording her performance.

The New York Times article poses a number of questions for students to consider and discuss.  While I feel the questions are a little leading toward certain answers, they, or questions like them, could prove useful as a starting point for arts & cultural organizations as part of a conversation with younger audiences (or potential audiences) about their expectations.

I will say, of the student responses made in the article comments section, there were more inclined against the use of phones than I had expected. Many of the commenters were from the same school so perhaps they were generated by like-minded friends.

There is also an opportunity to have those participating in a discussion you host do a little more research on whatever scenario is being discussed.

For example, when I first learned about Annie-Sophie Mutter stopping the performance, my impression was that the person in the audience had only just started recording a short snippet. In later interviews, Mutter said the woman recorded the whole first movement and then pulled out another phone and an external power source and started recording the second movement. This adds a little more context for a discussion.

Making audiences of all ages feel welcome at performances and other cultural events will inevitably require addressing the issue of recording. I suspect that other than luck and perceptive ability, the more constructive policies will result from having conversations with audiences rather than by straight fiat or debating about it in the comments section of websites.

Why The Sudden Interest In Non-Profit Record Access?

Three years ago I wrote an article for ArtsHacker.com about being aware of the open meeting requirements your state imposes on non-profits.

I basically pointed out that while pretty much every state requires a non-profit organization receiving state funds to comply with open meeting laws, every state is different when it comes to defining at what degree of state support an organization needs to begin complying.

In some states, the existence of your non-profit pretty much needs to be established by an act of the legislature, while in other states being provided with a meeting space in a state owned building is all that is required to make your organization subject to the state open meetings and records laws.

I am not sure what has happened in the last year or so, but pretty much once a month now someone leaves a comment asking if an organization in their state is subject to open meetings or open records laws.  I pretty much end up saying, “You should really consult a lawyer on this subject, but here is what I found online about the laws in your state.”

I have yet to find a state that doesn’t have the rules governing non-profits posted online somewhere, pretty clearly labeled. So if you are curious about your state, I encourage you to check online first because that is all I am going to do. (Check both the sections on open meetings and retention and access to records.)

Some states have some pretty good guides created to answer questions about open meetings and non-profits. It is good to have your secretary of state telling you clearly what the state laws do and don’t require.

I call attention to all this because I am wondering why there is a surge in questions on the post.  There are far more comments on that post than anything else I have written on the site. Have search engines started giving it better placement in results?  Are people seeking greater transparency from the organizations with which they are involved and don’t know where to find answers? (Or perhaps, the closure of so many local newspapers means a lack of people to help them find answers)

If anyone has theories, please share.

I should note, I am not sure any of the queries have come from people involved with arts and culture organizations.  Only about half provide any details that identify what sort of organization they are working with and none of them have been arts related.

Is Your Non-Profit Subject To Open Meeting Laws?

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