SCHOOL INTERNS SLAVES NO MORE
In 1865 the 13th Amendment to the US Constitution outlawed slavery. In 1938 the Federal Fair Labor Standards Act set a minimum wage for all employees. In 1964 Title VII and New York's Human Rights Law protected paid employees from harassment and discrimination based on age, religion, sex, among others and with the passage of ADA law from discrimination based on disabilities including pregnancies. Employers were cautious about blatantly violating these laws and lawsuits abound where discrimination is discovered. That is except for student interns.
Student interns have been unable to seek any such protection since they are not technically employees because they work for free. Many college masters programs in speech, PT or social work require their students to participate in internships. These are our children who believed they are so lucky to get unpaid internships in their fields of employment. Yet at times, those internships are not so ideal. When an unpaid intern in New York sued a Chinese news company, Phoenix Satellite Television, because, she said, a supervisor had groped and assaulted her; a federal judge dismissed her case. Since she was not paid for her work, the law did not view her as an employee under Title VII.
The same thing happened in 1997, when an intern at a psychiatric hospital claimed that she was urged to join an orgy and to strip naked before meeting with a doctor.
The courts threw out her sexual harassment claim because she was not paid.
The same was true for minimum wage rules; students were not deemed employees in the eyes of the law.
NEW PROTECTION FOR INTERNS
These federal rulings were disturbing and ran against 100 years of trying to protect workers. So in 2014,New York City and New York State just changed the definition of an employee and now all student interns can seek protection under the Human Rights Law. Interns are now specifically protected where an “employer engages in unwelcome sexual advances or engages in harassment based upon age, race, creed, color, national origin, military status, sex, disability, genetic predisposition or carrier status, marital status or domestic violence victim status, where such conduct has the purpose or effect of interfering with the intern's work performance by creating an intimidating, hostile or offensive working environment.” Pretty broad!
HOW TO FILE A COMPLAINT
If you believe that you have been subjected to discrimination at your unpaid internship, you can file a complaint with the New York State Division of Human Rights. A complaint must be filed with the Division within one year of the alleged discriminatory act. Interns are protected with regard to harassment and other forms of unlawful discrimination occurring on or after July 22, 2014. For more information or to file a complaint, you may contact the regional office nearest to your home or workplace, or download the complaint form here.
WHAT ABOUT WAGES
Interns are often unpaid, but that too is changing. A lot of these developments came about as a result of legal victories. In a New York some interns sued a movie producer. The plaintiffs in said case felt they were little more than coffee-fetching, phone-manning grunts, on the set of a movie called Black Swan. They had argued that they should have received salaries for their tasks, and a federal judge agreed. In his decision, he wrote, “[employers] who wish to offer wageless positions should stick to the six guidelines outlined back in the 1938 Fair Labor Standards Act.” These criteria would work for the field specific internships, but not for the more common summer interns. (Read the criteria here.) To pass muster under the new law, the students must participate in private sector internships or training programs that are more educational and for the benefit of the interns. This would apply to interns who receive training for their own educational benefit if the training meets the criteria outlined in the 1938 law. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program. Many law firms for instance have their summer interns do real legal work, and they are also paid. If your summer internship is just being a student gopher, you may have grounds to file a Department of Labor Complaint and get compensation. For additional information, visit the Department's Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call toll-free between 8 a.m. to 5 p.m. 866-4USWAGE (1-866-487-9243). But you better not put that employer's name on your kid's resume.
Alexander Novak, Attorney
Partner, Novak Juhase & SternCheck us out on Facebook, LinkedIn, and at njslaw.com