When a judge conditionally certified an unpaid Harper’s Bazaar intern’s employment class action last summer, the decision was a bright spot for lowly interns everywhere–not to mention an early victory for plaintiffs lawyers at Outten & Golden.
If the plaintiffs are like most magazine interns, however, they probably knew better than to get their hopes up when it comes to compensation. Sure enough, on Wednesday U.S. District Judge Harold Baer in Manhattan took another look and sided with defendant Hearst Corporation, refusing to certify the class or to rule that the plaintiffs qualify as Hearst employees under the the Fair Labor Standards Act.
In a 13-page ruling, Baer found that the FLSA question wasn’t ripe for summary judgment since there was a genuine factual dispute regarding how to distinguish the interns from employees under the law. The interns had argued that internships had to meet six criteria issued by the Department of Labor and that Hearst failed one of those criteria by deriving an "immediate advantage from the activities of the intern." Hearst countered that the U.S. Supreme Court had adopted a "totality of the circumstances" test, and that the six criteria were not a rigid checklist. Baer agreed with Hearst on the standard that should apply, but he left the door slightly open for the interns, finding that the DOL checklist may merit some deference from the court.
As for class certification, Baer cited the Supreme Court’s Wal-Mart v. Dukes decision, concluding that the interns’ claims lacked commonality. Baer held that the interns’ duties varied greatly depending on where they worked at Hearst, which publishes about 20 different magazines.
"The evidence of a corporate-wide policy of classifying the proposed class members as unpaid interns is insufficient, as that policy alone cannot answer the liability question, which turns on what the interns did and what benefits they received during their internship," the judge wrote.
The lead plaintiff, Xuedan Wang, has teamed up with Outten & Golden in at least one other case alleging that a company took advantage of its interns. In July 2012, five months after she went after Hearst, Wang filed suit against jewelry company Fenton-Fallon Corp. That case settled last September for an undisclosed sum.
In an emailed statement, Hearst general counsel Eve Burton said that "Judge Baer reached exactly the right conclusion." In-house lawyers Jonathan Donnellan, Kristina Findikyan and Courtenay O’Connor are representing the company alongside Proskauer partner Mark Batten.
Adam Klein of Outten & Golden declined to comment.