New York State Extends Workplace Protections to Unpaid Interns

Paula Lopez, July 31, 2014.

Last week, Governor Andrew Cuomo signed legislation that will provide unpaid interns throughout the State of New York with the same state law protections against discrimination and sexual harassment in the workplace as paid employees.  The amended law takes effect immediately.  Until recently, only unpaid interns in Oregon and Washington D.C. were similarly protected.  Earlier this year, the New York City Council, by unanimous vote, passed an amendment to the City’s Human Rights Law, extending its anti-discrimination and anti-harassment provisions to unpaid interns. This law took effect on June 14, 2014. Until now, similar protections were not available to interns outside New York City since Title VII’s anti-discrimination/anti-harassment provisions under Federal law only apply to employees.

The State legislature and the New York City Council were spurred into action by an October 3, 2013 ruling made by U.S. District Judge for the Southern District of New York, P. Kevin Castel, in the case Wang v. Phoenix Satellite Television U.S., Inc., dismissing a claim for hostile work environment under the New York City Human Rights Law and New York State Human Rights Law brought against Phoenix for alleged sexual harassment committed by a supervisor who groped and forcibly tried to kiss the plaintiff while she interned for the company. Ms. Wang’s claim was dismissed because the District Judge held that as an unpaid intern, Ms. Wang did not meet the definition of “employee” and therefore was not covered by the provisions of the New York State or New York City Human Rights Law.   In his decision, the District Judge noted that the City Council has frequently amended the New York City Human Rights Law to expand coverage, limit exemptions and broaden remedies but despite numerous amendments, it never sought to expand its coverage to unpaid interns and therefore he could not apply such a liberal construction to the law. The amendment creates a new section pertaining to unlawful discriminatory practices related to interns.  An intern is defined as,

A person who performs work for an employer for the purpose of training under the following circumstances:

A. The employer is not committed to hire the person performing the work at the conclusion of the training period;
B. The employer and the person performing the work agree that the person performing the work is not entitled to wages for the work performed; and
C. The work performed:
(1) provides or supplements training that may enhance the employability of the intern;
(2) provides experience for the benefit of the person performing the work;
(3) does not displace regular employees; and(4) is performed under the close supervision of existing staff.

The amendment extends general civil rights protections to interns, such as prohibiting discrimination in the terms, conditions or privileges of employment as an intern on the basis of the intern’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic victim status.  It expressly bans sexual harassment as well as other forms of harassment, and contains an anti-retaliation provision.

The presence of interns in the workplace has increased significantly in recent years, with internships becoming more prevalent as a stepping stone for future employment. The amendment to the New York State Human Rights Law, like the amendment to the New York City Human Rights Law, does not impose significant administrative burdens on employers or require an overhaul of company policies but, instead, is intended to close loopholes in the existing law and to extend existing protections to another class of the workforce. Employers do not need to create new anti-discrimination and anti-harassment policies.  They just need to understand that interns are to be treated the same as employees with respect to such policies.

The amendment also reinforces the recent expansion of interns’ rights, including the limitations on an employer’s ability to classify individuals as interns rather than employees, as well as a series of lawsuits in which interns have been successful in recovering wages under the Fair Labor Standards Act and New York Labor Law.  Recent case law and legislation have afforded interns significant rights, while exposing employers to a larger number of claims by expanding the pool of possible plaintiffs. As a result, employers in New York should ensure that their anti-discrimination and sexual harassment policies now cover interns, such policies are circulated to their employees and interns, and a mechanism for properly implementing the policies is in place.


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