As summer approaches, many companies will be bringing interns into the office. The unpaid intern has become a common sight in corporate America, particularly in a lagging economy, but employers might not know that these interns often lack legal protection from harassment and discrimination.
A new law signed by New York City Mayor Bill de Blasio on April 15 closes this loophole in the city, offering unpaid interns who believe they have been harassed or discriminated against the opportunity to sue. The law, which follows similar measures in Washington, D.C., and Oregon, and may be replicated in California in the near future, opens up a new area of conversation in the ongoing discussion about the rights of interns, a dialogue that thus far has mostly focused on compensation.
“It’s brought up an issue that hadn’t really been at the forefront,” Jill Vorobiev, a member of the labor and employment group at Dykema Gossett, told CorpCounsel.com.
In New York, the lack of legal protection for interns came to public attention when Lihuan Wang, a former unpaid intern at a New York bureau of Phoenix Satellite Television, claimed that her supervisor harassed her. The case was thrown out when a federal judge determined that Wang was not an employee, and therefore lacked protection under both Title VII of the Civil Rights Act of 1964 and the city’s human rights law.
“It doesn’t really make a whole lot of sense that interns who are working in the same employment setting as paid employees could be subjected to sexual harassment or other types of discrimination,” Jane Barker of Pitta & Giblin told CorpCounsel.com.
The new antidiscrimination law, which enjoyed unanimous support in the New York City Council, moves to close this loophole by extending to those defined as “interns” the same protections that employees have in the city. However, some groups have complained that the legislation doesn’t go far enough. The new law takes its definition of “intern” in part from the U.S. Department of Labor, and it requires that the company running the internship provide educational training, close supervision from staff members and experience for the benefit of the intern performing the work. Advocacy groups say many unpaid workers will be exempt from the law under the current definition.
“It doesn’t extend far enough to cover anyone who may be dropping by and volunteering their time for a few hours, so there’s been criticism of that,” said Vorobiev. However, she believes the law goes just far enough without overreaching into territory where litigation risks might rise substantially.
Legal coverage or not, Vorobiev said she always advises companies to ensure that in every interaction, whether it’s with employees, interns, volunteers, guests or other third parties, people are treated equally and never subject to discrimination or harassment. “Whether there’s legal recourse or not, that’s the way employers should structure their workplaces” to avoid liability, she said.
The more vexing issue for many companies that recruit unpaid interns has been the Fair Labor Standards Act. Two former unpaid interns who worked on the set of the Fox Searchlight Pictures film “Black Swan” sued the production company under the FLSA in 2011, alleging they were entitled to receive minimum wage for their work. Similar suits against other companies such as Condé Nast, the Hearst Corporation and NBC Universal Inc. followed and some employers have responded by saying they will start paying their interns.
Barker believes that the new NYC law is unlikely to have any direct effects on the FLSA issues. “That’s a developing area of the law. I don’t think this law is going to have too much impact on that in particular, although it’s probably going to be used by advocates and others who wish to advance the interests of these unpaid interns,” she said.