Unpaid, but Not Unprotected: New York City Extends Human Rights Law to Protect Interns

As reported by us in recent blog articles (Do as I Say, Not as I Do: Differences in Duties Means No Commonality, No Class Certification for Unpaid Interns and The High Cost of Hiring Unpaid Interns), employment issues surrounding unpaid interns are on the rise. While the bulk of the debate has centered on wage-and-hour issues, some have argued that interns should be afforded the same protections from workplace discrimination and harassment as employees. New York City has now adopted that view.

In October 2013, in Wang v. Phoenix Satellite Television US, Inc., the U.S. District Court for the Southern District of New York dismissed an unpaid intern’s sexual harassment complaint, based upon its holding that unpaid interns are not employees and thus not protected under the New York City Human Rights Law (“NYCHRL”). On March 26, 2014, the New York City Council responded by unanimously passing legislation amending the NYCHRL to provide all interns, including those who are unpaid, with protection from discrimination and harassment.

The amendment defines an “intern” as:

[A]n individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff. The term shall include such individuals without regard to whether the employer pays them a salary or wage.

The amendment extends to paid and unpaid interns the ordinary protections from discrimination and harassment on the basis of protected characteristics like race, gender, national origin, disability, and sexual orientation. It also requires employers to make reasonable accommodations for interns’ disabilities in certain circumstances.

The NYCHRL amendment goes into effect on June 14, 2014. In the meantime, New York City businesses with interns should review their personnel policies (e.g., internal complaint procedures and anti-discrimination, anti-harassment, and equal employment opportunity policies), and ensure their terms cover interns.

With the passage of this amendment, New York City joins Washington, D.C. and Oregon as the only jurisdictions in the country to provide interns with the same protections from discrimination and harassment as afforded to employees. Similar legislation is currently pending in California, New Jersey, and New York.