Unpaid Internships: What to Consider Before You Sign On
Amanda Murphy, Features Writer
Niki Hatzidis, Features Editor
Before You Take that Unpaid Internship...
WAIT! Before you sign that contract for a summer internship with Ibsen in the Park, remember this:
YOU ARE LEGALLY ENTITLED TO BENEFIT MORE FROM YOUR UNPAID INTERNSHIP THAN YOUR EMPLOYER.
The following five questions are meant to help you determine whether you or your employer are the primary beneficiaries of the internship arrangement. The questions are framed using the Department of Labor’s Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act (FLSA).
Question 1: Will you learn anything that you don’t already know?
Alternatively, you can use the lessons in this article to start your own nonprofit theatre company and indenture your own unpaid interns!
[FLSA Guideline #2: “... the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.”]
The answer to this question depends on what you already know versus what the theatre company is offering to teach you. Will this internship provide you with valuable training in a theatrical vocation, even if it’s not your main area of interest?
If your primary job is going to be schlepping props, gelling lights, climbing ladders, packing and unpacking props, moving set pieces around, and doing what the Stage Manager tells you to... guess what? You’re not an intern: you’re a stagehand! And if you’re a stagehand, great news! Stagehands with no experience can get minimum wage jobs at any number of places. Instead of working for free this summer, consider applying for a seasonal job at your local performance venue.
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Speaking of Learning New Things...
Whether you’re a writer, or an actor, or a collaborative absurdist performance art choreographer, you can benefit from this free lesson in the Business of Theatre. (However, if, like me, business law knocks you unconscious, you can skip down to TL;DR).
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The Fair Labor Standards Act (FLSA) offers a seven-point “primary beneficiary test” to determine whether an intern is in fact an “employee” who is entitled to minimum wage.
BUT the FSLA Test specifically refers to for-profit corporations. Most Off- Broadway and Off-Off-Broadway theatre companies are nonprofit organizations. What’s the difference? And do the same FLSA guidelines apply?
First, The Difference:
A for-profit corporation is an organization that aims to earn a profit. Thanks, Wikipedia.
A nonprofit organization seeks to serve the public interest, like a charity, or an educational institution.
Most nonprofit theatre companies, such as The Public Theatre, Ars Nova, the New York Neo-Futurists or any member of the Alliance of Residential Theatres/ New York (A.R.T/ NY) are tax-exempt 501(c)3 organizations. 501(c)(3) tax-exemptions apply to numerous entities, but for our purposes, we’ll focus on theatre companies that purport to be charitable or educational in some way.
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TL; DR: Off-Broadway theatre companies (such as The Public Theatre (Shakespeare in the Park)) claim nonprofit tax-exempt status because they claim to be charitable or educational. But does this mean that the FLSA guidelines about unpaid internships don’t apply to them? Legally it’s unclear. I assert that if they don’t, they should. Replace The Public Theatre with any name on the list of A.R.T/ NY’s members. They are all tax-exempt 501(c)3 organizations that claim to be charitable or educational.
Nonprofit executives are entitled to pay their own salaries with profits made by their organization. However, they should not be entitled to pad their salaries with the unpaid salaries of multiple employees.
Question 2: Are you receiving academic credit?
But if you do need to do this for academic credit, then make sure the internship offers it. [FLSA Guideline #3: “The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.”] Many university theatre programs require a few credits of internship experience in order to graduate. This creates a feeding ground for exploitative theatre companies to snatch juicy little free laborers from a pool of overeager theatre majors.
Question 3: How much of a time commitment is this unpaid internship?
[FSLA Guideline #5: “The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.”] If you’re required to work 35-40 hours a week, a full-time job, the likelihood is that your employer isn’t focused on teaching you something new every day.
Question 4: Are you indispensable to the successful operation of the theatre or production?
[FSLA Guideline #6: “The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.”] Can the production run without you?
Interns are not meant to be indispensable to operating the theatre or running the show. If you’re solely responsible for lighting Scene 4, laundering costumes, checking props for Act I, keeping the actor playing Hamlet from missing his entrance, and acting as the understudy for Gertrude, you’re indispensable and therefore not an intern.
Ask yourself: does this theatre company rely on unpaid labor? And if so, are they entitled to rely on unpaid labor even though their executives are making at least a living wage producing theatre?
Furthermore, are theatre companies able to rely on unpaid labor because privileged young people can afford to work without pay for a summer? Does this system perpetuate the gentrification of the arts by excluding aspiring theatre artists who come from low-income backgrounds?
The unpaid labor system in theatre freezes out people whose economic situations dictate that they cannot work for free so that instead of being the proletariat arena that theatre claims to be, it is instead full of rich people.
Question 5: Does your employer need you to execute your job perfectly?
[Relating back to FLSA Guideline #6: “The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.”]
The internship should be a learning process. If the production could not run without the flawless execution of your work, you should be getting paid minimum wage to do it.
Let’s stop pretending that theatre companies are somehow above the law when it comes to paying their employees. If a theatre company can’t afford to pay their laborers,
maybe their adaptation of Hamlet and Horatio: The Untold Love Story... doesn’t need to be.
Or, why are we pretending that unpaid theatre interns are anything other than volunteers, who deserve to be treated as essential workers in a charitable organization... not entry-level underlings
Godot forbid a theatre producer has to treat his stagehands like equals!
And remember this: McDonald’s doesn’t refuse to pay their entry-level employees just because they’re getting “job experience” out of it.
In conclusion...
I don’t regret any of my unpaid internship experience. If you don’t go to a theatre school, it’s a good way to meet like-minded young artists.
However, the internship system needs an overhaul. It can start with nonprofit theatre executives taking a good look at their own internship programs and determining whether they exist for the education of young people, or to save their company money by taking advantage of entry-level laborers.
You can heed my warnings or not, but if you find yourself working as an unpaid stagehand for Marxism in the Park’s summer production of The Cradle Will Rock, don’t say I didn’t warn you.
More Resources:
This Guardian article has great info about how to get into paid backstage work in the arts: https://www.theguardian.com/culture-professionals-network/culture-professionals- blog/2012/nov/20/backstage-work-arts-career-tips
DOL Fact Sheet #71, Internship Program Under the Fair Labor Standards Act:
https://www.dol.gov/agencies/whd/fact-sheets/71-flsa-internships
Links & more info:
Great essay by Greg Redlawsk about Unpaid Internships:
https://howlround.com/unpaid-internships-or-getting-your-foot-door-american-theater
If you want more detailed information about a theatre company you’re considering for an internship, you can research tax-exempt nonprofit organizations’ financial details, revenues, expenses and executive compensation here: https://projects.propublica.org/nonprofits/
https://www.charitynavigator.org/index.cfm?bay=search.irs&ein=131844852 https://en.wikipedia.org/wiki/501(c)(3)_organization https://www.nonprofitpro.com/article/the-unpaid-internship-proceed-with-caution/
Amanda Murphy is a playwright and nonprofit theatre executive. For information on how to join her unpaid internship program visit her website: youupproductions.com.
Photo Credit: Richard Termine, the Hollywood Reporter, from "Evita" on Broadway.