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The Third Circuit is expected to soon make a decision as to whether student-athletes can be considered university “employees” under the Fair Labor Standards Act (“FLSA”). But its interpretation of the law might reverberate beyond the confines of college sports and could implicate whether unpaid student interns must also be treated as employees.Continue Reading What the Third Circuit’s Looming Decision Regarding Whether College Athletes Can Constitute “Employees” Will Mean for Universities and Employers of Unpaid Student Interns

In a decision issued earlier this month, the Second Circuit Court of Appeals ruled that participants in unpaid internship programs offered by the Hearst Corporation could not be classified as “employees” of Hearst and therefore were not entitled to compensation for their internships under the Fair Labor Standards Act (FLSA).

The Second Circuit’s decision in Wang v. Hearst Corp., No. 16-3302 (2d Cir. 2017) (available here) affirmed a 2016 decision by U.S. District Judge J. Paul Oetken granting summary judgment for Hearst and dismissing the claims of lead plaintiff Xuedan Wang and four other college-age individuals working as unpaid interns for Hearst’s various print magazines. The Second Circuit made clear reference to the case’s underlying significance, framing the question raised on appeal as “whether Hearst furnishes bona fide for‐credit internships or whether it exploits student‐interns to avoid hiring and compensating entry-level employees.”
Continue Reading Second Circuit Court of Appeals Rules That Hearst Interns Are Not Employees

On July 2, 2015, the Second Circuit Court of Appeals issued significant pro-employer decisions in Glatt v. Fox Searchlight Pictures (Nos. 13-4478-cv, 13-4481-cv) (“Fox”) and Wang v. Hearst Corp. (No. 13-4480-cv) (“Hearst”) that served as a setback for the plaintiffs in both cases.  In both cases, the plaintiffs – unpaid interns who had spent time at Fox Searchlight and Hearst magazines, respectively – alleged that they should have been classified as employees and paid for their time.  As a result, they brought claims for, among other things, unpaid wages on a class-wide basis.  The district court decisions were split.  In Fox, the judge granted summary judgment on the issue that interns were employees and permitted the plaintiffs to proceed on a class and collective basis.  To the contrary, in Hearst, the judge denied summary judgment on the same issue and denied the plaintiffs’ motion to proceed as a class.  On appeal in both cases, the Second Circuit adopted a balancing standard called the “primary beneficiary test” and held that district courts should use this test when analyzing whether an individual should have been classified as an intern or an employee.  The Second Circuit also held that the proposed classes of interns in both cases failed to satisfy the requisite standards in order to proceed on a class-wide basis.
Continue Reading Second Circuit Court of Appeals Adopts “Primary Beneficiary Test” and Provides Guidance on the Unpaid Intern Question

Following New York City Mayor Bill De Blasio’s endorsement of an amendment to the New York City Human Rights Law (“NYCHRL”) extending the statute’s anti-discrimination and harassment protections to interns earlier this year (as reported here), New York Governor Andrew Cuomo recently signed into law similar legislation modifying the New York State Human Rights Law (“NYSHRL”).
Continue Reading Reminder: New York Interns Are Now Protected Under Both the State and City Human Rights Laws

A new bill introduced in the New York State Senate would extend many of the protections of the New York State Human Rights Law (NYSHRL) to unpaid interns.  Among other things, the bill would make it illegal for employers to “refuse to hire, employ or to discriminate against an intern” based on any of the characteristics protected by the NYSHRL or to “engage in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to an intern.”
Continue Reading Proposed New York Law Would Extend State Anti-Discrimination Protections to Unpaid Interns