Viacom Intern Case Moves Ahead as Employers Eye Second Circuit

Viacom Intern Case Moves Ahead as Employers Eye Second Circuit All work and no pay?

Another employment class action brought on behalf of unpaid interns cleared a hurdle last week, when a federal judge in Manhattan conditionally certified a class of interns suing Viacom Inc. But plaintiffs lawyers behind a crush of intern cases still have to contend with the U.S. Court of Appeals for the Second Circuit, which is considering two appeals that could derail the litigation—or open the floodgates for even more claims.

U.S. District Judge Jesse Furman’s April 4 decision in O’Jeda v. Viacom conditionally certifies the case as a collective action under the Fair Labor Standards Act. The case, brought on behalf of all Viacom and MTV interns who held unpaid positions over the last three years, was filed two months after another judge ruled last June that unpaid interns at Fox Searchlight Pictures Inc. qualified as employees under the FLSA.

Conditional certification allows lawyers for the plaintiffs to seek out more interns to join the collective action. According to O’Jeda’s lawyers at Leeds Brown Law PC and Virginia & Ambinder, thousands of interns mostly likely worked at Viacom during the class period, making this among the biggest such cases facing employers.

The plaintiff, a college student named Casey O’Jeda, worked without pay in Viacom’s “mobile development department” in Manhattan between September 2011 and January 2012, doing what he calls routine maintenance and operations on the company’s mobile website. O’Jeda claims that paid employees in his department performed the very same work, and that he was never offered any training beyond one orientation.

Viacom’s lawyers at Vedder Price opposed certification in January, arguing that the complaint is filled with speculation and failed even to correctly name the corporate entity where O’Jeda worked as an intern. (Viacom claims that its MTV subsidiaries named in the complaint didn’t host O’Jeda’s internship.) Viacom also argued that the class shouldn’t be certified because the media company’s many subsidiaries and units have independent internship programs with different training components and compensation guidelines.

Furman rejected those arguments in Friday’s ruling, at least for now. The hurdle to conditional certification is low, he noted, and the plaintiff had met it. “The possibility that ‘disparate factual and employment settings’ exist does not mean that the interns were not subject to a ‘common policy to replace paid workers,’” the judge wrote.

Viacom counsel Lyle Zuckerman and Michael Goettig at Vedder Price weren’t immediately available to comment on the decision.

Jeffrey Brown at Leeds Brown and Lloyd Ambinder of Virginia & Ambinder are representing O’Jeda in the case. Leeds Brown is also spearheading six other putative FLSA intern class actions, most filed in the past year. They include cases against MSG Holdings, Sony Corp., Warner Music Group and Donna Karan International. This is the first to reach conditional certification, Brown said.

Whether the Viacom and other cases achieve final certification, however, will likely depend on how the Second Circuit rules in a pair of consolidated appeals that the court agreed to hear last November. In one of the cases, U.S. District Judge William Pauley III in Manhattan sided with plaintiffs in June 2013, ruling that Fox’s former unpaid interns qualify as employees under the FLSA and New York labor laws. In the other, U.S. District Judge Harold Baer Jr. in May 2013 rejected a proposed class action brought by unpaid interns at Hearst Corporation.

Filings by potential amici in the cases were pouring in to the Second Circuit last week. The U.S. Department of Labor weighed in on Friday in support of the plaintiffs in the Hearst case, arguing that Baer used an improper standard in deciding whether to certify the interns’ class. According to the government’s lawyers, Baer should have used a six-point standard developed by the agency to differentiate between employees and “trainees,” who don’t need to be paid.

The Fox and Hearst cases are consolidated for oral argument but a date hasn’t been set. Outten & Golden’s Rachel Bien is representing the plaintiffs. Hearst and Fox are both represented by Proskauer Rose, and Neal Katyal of Hogan Lovells joined as counsel for Fox in the appeal in January.

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