NBC Universal is the latest media company to get sued by former unpaid interns.
According to The Hollywood Reporter, NBC Universal was sued by former MSNBC intern Jesse Moore, who worked in the cable network's booking department in 2011.* * *
The legal action is the latest in a string of lawsuits filed against major media companies by former unpaid interns. Earlier this week, Charlie Rose's production company paid $110,000 to settle a lawsuit filed by former unpaid interns. In June, a Manhattan judge ruled that former interns on the set of the movie "Black Swan" were de facto employees of Fox Searchlight Pictures entitled to payment. On Tuesday, Fox Searchlight filed documents demonstrating an interest in appealing the court's ruling.
Unpaid interns have also filed lawsuits against Conde Nast, Hearst and Gawker.
(h/t The Hollywood Reporter)
A New York federal judge gave the green light to former unpaid interns bringing a wage-and-hour suit against Hearst Corp. to appeal his ruling denying them class certification, saying the Second Circuit could also provide clarity for other pending intern suits.
U.S. District Judge Harold Baer granted a bid by former interns Xuedan Wang and Erin Spencer to certify for interlocutory appeal his May 7 ruling refusing to certify a class on their New York Labor Law and denying them partial summary judgment on the question of whether they qualified as “employees” under federal and state wage law.
In his order allowing the plaintiffs to seek immediate review by the Second Circuit, Judge Baer said that controlling questions of law were present — including whether the criteria were met for class certification and whether a totality of the circumstances test was the right one for evaluating the interns' employment status — and that answers from the Second Circuit on these questions would not only provide clarity for the present case but also for other cases brought by interns in the circuit.
“A decision on these questions will significantly affect the conduct of other lawsuits now pending in the district courts which have relied on other legal standards or the same legal standard, but have come out differently,” the judge said.* * *
In that case, U.S. District Judge William H. Pauley III ruled that two interns who had who worked on the Fox Searchlight-produced movie “Black Swan,” should have been classified as employees under the Fair Labor Standards Act and certified a class of interns who worked in five Fox Entertainment Group units in New York to bring related claims under state law.
“[A]s the questions raised by plaintiffs in this case and in Glatt are difficult and one of first impression, they clearly provide fodder for different opinions and have spawned them,” Judge Baer said.
If the Second Circuit provides clarification or a different legal standard, it will guide the resolution of outstanding issues pending throughout the circuit, he said.
“We're pleased that the judge agreed with our motion that these issues are ripe for review, and we are hopeful that the Second Circuit will see things our way,” Juno Turner of Outten & Golden LLP, who represents the plaintiffs, told Law360.* * *
The Second Circuit will still have to decide whether or not to review the judge's ruling.
If the Second Circuit does agree to take the case at this stage, its ruling could have a significant impact in the wage-and-hour realm where suits by interns claiming they should have been treated as employees and paid minimum wage and overtime are becoming increasingly popular.
The suit against Hearst, which Wang, a former intern at Harper's Bazaar, originally filed in February 2012, marked part of a beginning of a wave of intern suits.
And even more interns have lodged suits in the wake of the ruling in favor of the interns in the Fox Searchlight case.
The Hearst interns are represented by Adam T. Klein, Rachel M. Bien and Juno Turner of Outten & Golden LLP.* * *
The case is Wang v. The Hearst Corp., case No. 1:12-cv-00793, in the U.S. District Court for the Southern District of New York.
The law governing unpaid interns has become so murky that even a victorious party in a current case is hoping an appeals court will weigh in to clarify it.
In the past two months, two judges in the Southern District of New York have issued opposing rulings on the topic of unpaid interns. On June 11, U.S. District Judge William Pauley ruled in a summary judgment motion that interns suing film company Fox Searchlight were employees.
A month earlier, U.S. District Judge Harold Baer declined to make a similar determination, ruling that the issue of whether interns suing publishing giant Hearst Corp were employees was appropriate for a trial. Baer also declined to certify as a class action the case against Hearst.
At issue in both cases is the central question of what constitutes an employee.
In the Fox case, the defense argued that the so-called "primary beneficiary" test - a test of whether the worker or the company is the primary beneficiary of the labor the intern provides - should be invoked to make the determination. Pauley rejected the defense's argument, calling the test "subjective and unpredictable."
In the Hearst case, Baer disagreed with the interns suing the publishing house, who said that a Labor Department checklist should be followed to determine if an intern is an employee. Instead, he looked to the "totality of circumstances" and let the issue proceed to trial. He noted the benefits test should be a part of this consideration.
The plaintiffs in the Hearst case have asked Baer to certify the case for an interlocutory appeal to the 2nd Circuit. Interlocutory appeals are unusual, as appeals courts rarely grant appeals midway through a case's proceedings in the district court.
And even though Hearst was essentially the victor in Baer's ruling, it has said it won't oppose the plaintiffs' request for interlocutory appeal, because it wants clarity on the law of interns.
LAWYERS SEEK CLARIFICATION
"Hearst submits that an in-district split with respect to the legal standard in two cases proceeding concurrently justifies immediate review by the Second Circuit," Hearst wrote in a Friday motion, in which it also referred to the plaintiffs' criticism of Baer's ruling as "baseless" and having "utter lack of foundation.* * *
The issue of the legal standards governing interns is likely to arise in the courts again soon. On June 13 two former interns at the New Yorker and W Magazine sued Conde Nast Publications, alleging the publishing giant violated federal labor laws by paying interns a nominal wage.* * *
The case against Hearst is Xuedan Wang v. The Hearst Corporation, U.S. District Court for the Southern District of New York, No. 12cv00793.
For plaintiffs Xuedan Wang et al: Adam Klein, Rachel Bien, Deirdre Aaron, Juno Turner, Justin Swartz, Michael Scimone, Molly Brooks, Paul Mollica and Sally Abrahamson of Outten & Golden.* * *
By Bill Donahue, Law360
A former unpaid intern who claims Hearst Corp.'s intern policies violated federal labor law accused the magazine publisher on Tuesday of dragging its feet in turning over contact information for possible class members and actively impeding the notice process.
Xuedan Wang won conditional certification last year on her claim that Hearst ran afoul of the Fair Labor Standards Act by failing to pay magazine interns for entry-level work, entitling her to begin notifying other interns — potential opt-in plaintiffs — of her lawsuit, filed in New York federal court.
But on Tuesday, Wang's attorneys said Hearst had turned over only a fraction of the contact information it was ordered by the court to divulge, making available full information for only 328 of the estimated 3,000 potential class members.
"By failing to make a good-faith effort to search for and produce contact information for potential collective members, defendant prevented these individuals from receiving timely notice of their rights in this case, undermining the FLSA’s remedial purpose in the process," the motion said.
The company maintained that it didn't keep a list of former interns, but Wang's attorneys said the publisher seemingly had no problem finding unlisted former employees for another reason: to secure declarations against Wang's charges.
"Although defendant was able to find these individuals in order to obtain declarations from them, 19 of them were not on the class list at all," the motion said. "It will not be unduly burdensome for defendant to collect additional collective member contact information — indeed, when defendant needed to reach potential collective members to obtain declarations to support its defense, it apparently had little trouble locating them."
The plaintiffs want the court to extend the notification period and order Hearst to be more helpful during the process, including reaching out to intern supervisors at its magazines and departments and asking for all contact information that they may have.
On top of the alleged lack of effort, Wang also took exception to how Hearst's interns reportedly interacted with the former interns that it reached for declarations. The plaintiff says the defense attorneys mislead the former interns about her case, did not inform them that they could join it and even intimated that they represented the former interns' interests rather than Hearst's.
"The court should also authorize corrective notice to those collective members from whom defendant obtained declarations, claimed to represent and failed to provide adequate disclosures, informing them that they are still eligible to participate in the case," the motion said. "Courts routinely take similar measures to protect class members' rights following inappropriate communications from defendants."
An attorney for Hearst didn't immediately return a request for comment on Wednesday.
Wang first sued in February, claiming she worked full time at Hearst magazine Harper's Bazaar for five months — sometimes as much as 55 hours a week — for no pay, even though she did jobs that should have been handled by actual employees.
* * *
Under federal law, interns can work without pay, but only if their work is for an educational purpose and does not provide the employer with a substantial benefit, according to the complaint.
Judge Harold Baer Jr. granted the interns class certification in July, ruling that they had met the fairly lenient early-stage standards for collective status under the FLSA. Several state law claims, however, have been trimmed from the case since it was lodged.
Wang is represented by Adam T. Klein, Rachel M. Bien and Elizabeth H. Wagoner of Outten & Golden LLP.
* * *
The case is Wang v. The Hearst Corp., case number 1:12-cv-00793, in the U.S. District Court for the Southern District of New York.
By Scott Flaherty, Law360
A group of former Hearst Corp. interns urged a New York federal court Monday to grant class certification in a suit alleging that the magazine publisher violated labor laws by using interns as cheap fill-ins for gaps in its workforce.
The interns, who allege Hearst's internship policies run afoul of the Fair Labor Standards Act and New York Labor Law, filed a motion for class certification under the NYLL. A federal judge previously granted conditional certification to the Hearst interns under the FLSA, according to a memorandum filed in support of Monday's NYLL class certification bid.
“Hearst uniformly classified all class members as nonemployees based on one factor — that interns are college students who are eligible to receive academic credit for their internships,” the memorandum said. “Substantial evidence shows that interns performed productive work without pay and participated in internships structured around Hearst’s actual operations and not a classroom or academic experience.”
In addition to seeking class certification, the interns on Monday filed a motion for partial summary judgment.
With the summary judgment motion, the interns asked the court to rule that they qualified as employees as defined by the FLSA and NYLL. The interns also requested liquidated damages, and a judgment that Hearst has “willfully” violated federal and state law “based on its utter failure to take any steps to determine whether its policy of not paying interns is legal,” the memorandum said.
* * *
In July, U.S. District Judge Harold Baer Jr. granted conditional certification to the interns under the FLSA, allowing them to pursue those claims collectively. Judge Baer said at the time that Wang met the threshold for conditional FLSA certification by establishing “that other employees 'may be similarly situated' to her.”
“Wang has satisfied this burden by providing allegations and affidavits to the effect that Hearst made a uniform determination that interns were not employees, required all interns to submit college credit letters and used interns to perform entry-level work with little supervision,” the judge said in July.
Monday's motion, which was filed by Wang along with several additional named plaintiffs, seeks to certify a class under the NYLL. The proposed class would include every person who has worked for Hearst in New York as an unpaid intern starting Feb. 1, 2006, and continuing through final judgment in the case.
Under a scheduling order, Hearst has a deadline of March 18 to oppose Monday's class certification and partial summary judgment motions, and file any cross-motions for summary judgment.
Attorneys for Hearst and the interns did not immediately respond to requests for comment Tuesday. The interns are represented by Adam T. Klein, Rachel M. Bien and Juno Turner of Outten & Golden LLP. Hearst is represented by in-house counsel Eve B. Burton, Jonathan R. Donnellan, Kristina E. Findikyan and Courtenay B. O'Connor, as well as by Mark W. Batten of Proskauer Rose LLP. The case is Wang v. The Hearst Corp., case number 1:12-cv-00793, in the U.S. District Court for the Southern District of New York.