thomsonreuters.com—Carlyn Kolker
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.
* * *Hearst Blocking Efforts To Build Class, Unpaid Interns Say
Published in Hearst Corp. Class Action NewsBy 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.
May 5, 2012
By Steven Greenhouse, The New York Times
Confronting the worst job market in decades, many college graduates who expected to land paid jobs are turning to unpaid internships to try to get a foot in an employer’s door.
While unpaid postcollege internships have long existed in the film and nonprofit worlds, they have recently spread to fashion houses, book and magazine publishers, marketing companies, public relations firms, art galleries, talent agencies — even to some law firms.
Melissa Reyes, who graduated from Marist College with a degree in fashion merchandising last May, applied for a dozen jobs to no avail. She was thrilled, however, to land an internship with the Diane von Furstenberg fashion house in Manhattan. “They talked about what an excellent, educational internship program this would be,” she said.
But Ms. Reyes soon soured on the experience. She often worked 9 a.m. to 9 p.m., five days a week. “They had me running out to buy them lunch,” she said. “They had me cleaning out the closets, emptying out the past season’s items.” Asked about her complaints, the fashion firm said, “We are very proud of our internship program, and we take all concerns of this kind very seriously.”
Although many internships provide valuable experience, some unpaid interns complain that they do menial work and learn little, raising questions about whether these positions violate federal rules governing such programs.
Yet interns say they often have no good alternatives. As Friday’s jobs report showed, job growth is weak, and the unemployment rate for 20- to 24-year-olds was 13.2 percent in April.
The Labor Department says that if employers do not want to pay their interns, the internships must resemble vocational education, the interns must work under close supervision, their work cannot be used as a substitute for regular employees and their work cannot be of immediate benefit to the employer.
But in practice, there is little to stop employers from exploiting interns. The Labor Department rarely cracks down on offenders, saying that it has limited resources and that unpaid interns are loath to file complaints for fear of jeopardizing any future job search.
No one keeps statistics on the number of college graduates taking unpaid internships, but there is widespread agreement that the number has significantly increased, not least because the jobless rate for college graduates age 24 and under has risen to 9.4 percent, the highest level since the government began keeping records in 1985. (Employment experts estimate that undergraduates work in more than one million internships a year, with Intern Bridge, a research firm, finding almost half unpaid.)
“A few years ago you hardly heard about college graduates taking unpaid internships,” said Ross Eisenbrey, a vice president at the Economic Policy Institute who has done several studies on interns. “But now I’ve even heard of people taking unpaid internships after graduating from Ivy League schools.”
*******Eric Glatt, who at age 40 interned for the movie “Black Swan,” is one of the few interns with the courage to sue for wages over the work he did.
With an M.B.A. and a master’s in international management, Mr. Glatt wanted to get into film after a previous job overseeing training programs at the American International Group, the big insurance and financial services company. For “Black Swan,” he prepared documents for purchase orders and petty cash, traveled to the set to obtain signatures on documents and tracked employees’ personnel data.
“I knew that this was going to be a normal job and I wasn’t going to be paid for it,” he said. “But it started kicking around in my mind how unjust this was. It’s just become part of this unregulated labor market.”
Mr. Glatt filed suit, accusing Fox Searchlight Pictures of minimum wage violations. The company says it fully complies with the law and provides interns with a valuable, real-world work experience.
“The purpose of filing this case was to help end this practice,” said Mr. Glatt, who now plans to go to law school. “That was more important than my working on the next blockbuster.”
Ross Perlin, author of the 2011 book “Intern Nation,” said postcollege internships used to be confined to a few fields like film but have become far more common. “The people in charge in many industries were once interns and they’ve come of age, and to them unpaid internships are completely normal and they think of having interns in every way, shape and form,” he said.
Some interns say their experiences were quite helpful. Emily Miethner, a fine arts major at Hofstra, took an unpaid position at Gawker after graduating in 2010, doing research and social media for the news and gossip site. After two months, she moved to an unpaid internship at Flavorpill, an online cultural guide.
*****Xuedan Wang, known as Diana, did not have such a positive experience. Ms. Wang, who graduated from Ohio State in 2010, interned at Harper’s Bazaar, working 9 a.m. to 8 p.m. overseeing eight other unpaid interns who ran around Manhattan picking up items from various fashion houses and showrooms.
She sued the fashion magazine in February, accusing it of minimum wage violations.
“Harper’s Bazaar was my favorite magazine growing up. I was dazzled that I was going to be working there,” she said. “But it was real grunt work, lugging things around.”
Hearst Magazines, which owns Harper’s Bazaar, said its internship programs enhanced students’ educational experience and fully complied with the law.
Some people end up on an internship treadmill. Joyce Lee, who received a film degree from Wesleyan in 2010, moved to Los Angeles and did six unpaid internships, including one for Scott Rudin, a top Hollywood and Broadway producer.
Her duties included reading scripts and picking up the mail. To pay her rent, she worked at a coffee shop and handed out fliers for a taxi company.
“Scott Rudin is made of money,” she said. “I don’t think it would be so hard for him to pay five interns the minimum wage.”
A spokesman for Mr. Rudin said he could not be reached for comment.
Ms. Lee, who is now in New York making her own film and supporting herself by again working at a coffee shop, said interns deserved better.
“If I ever become a famous filmmaker,” she said, “I promise I will pay my interns.”
By Kayleen Schaefer Last fall, Diana Wang was named “head accessories intern” at Harper’s Bazaar.“I’d been dreaming of standing in their offices for fifteen years,” she says. “I was so ready to give everything I had. I couldn’t imagine that the dream of mine was becoming real.”
At 27, she was older than the average magazine intern. After graduating from Ohio State in 2010, Diana spent a year working for a pharmaceutical company in Columbus, Ohio, saving up so she could afford to live in New York as an unpaid intern — a gig she’d heard was a necessary first step to getting a job in fashion.
“This was going to be my only ticket to the industry,” she says. “I didn’t have unlimited resources. I was going to make the time worthwhile. I was going to be remembered by people.”
And she will be, but not because she’s on her way to becoming the next Melanie Ward, a stylist she revered. In February, Wang sued the Hearst Corporation, Harper’s Bazaar’s parent organization, for not paying for her work. The lawsuit, which accuses the company of violating federal and state labor laws, has since become a class-action one — including about 3,000 former Hearst interns — and may be decided as soon as early 2013.