Legal Briefing: Gawker's Intern Policy Isn't Game Over

Aulistar Mark worked as an intern for Kotaku, a video game blog operated by Gawker, from May to August 2010 while he was pursuing a journalism degree, and received academic credit for his internship. While interning, Mark's work included assisting the blog's editors and writers, taking photos and videos, writing and editing posts and articles, covering events and monitoring article comments. Mark filed a complaint against Gawker alleging that its failure to compensate him was a violation of the Fair Labor Standards Act.

The U.S. District Court for the Southern District of New York dismissed Mark's complaint, finding that under the “primary beneficiary test,” Mark benefited more from the skills he learned during his three-month unpaid internship with Kotaku than the economic benefits Gawker received from the 34 blog posts Mark wrote during his time there. The court also held that “the fact that Mark's work could be published (after editing) on Kotaku benefited defendants, but it benefited Mark as a journalism student at least as much.”

Mark was also was unable to show that Gawker used interns to displace paid employees. Mark v. Gawker Media LLC, et al., Case No. 1:13-cv-04347 (S.D. N.Y.) (March 29, 2016).

IMPACT: Unpaid interns who receive significant vocational and educational benefits will be hard-pressed to challenge the validity of the internship, even if the company using the interns derives some economic benefit from the intern's work.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email editors@workforce.com.

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