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Unpaid intern not protected from sexual harassment – but was she really an employee?

In Wang v. Phoenix Satellite Television US, Judge Castel in the Southern District of New York held that an unpaid intern has no protection from sexual harassment under the New York City Human Rights Law (NYCHRL). The plaintiff in that case was a masters’ degree student at Syracuse University who was hired as an intern for Phoenix, a company producing Chinese language news. She alleged that her supervisor sexually harassed her and denied her a permanent job when she refused his sexual advances. Judge Castel held that Ms. Wang could assert her claim relating to Phoenix’s failure to hire her, but dismissed her claim for sexual harassment, holding that because Ms. Wang was not being paid, she was not an employee, and therefore not protected by the NYCHRL.
The Human Rights Law does not define “employee,” and is silent on whether it includes unpaid interns. However, the court’s decision does not address whether the plaintiff should have been paid, and if so, whether that would make her an “employee” under the NYCHRL. Ms. Wang didn’t argue that she was, and did not bring a minimum wage or overtime claim. But the facts of the case may have supported such a claim. According to Ms. Wang’s complaint, her duties included assisting the reporters with shooting news footage, drafting scripts, and editing video footage. She also scripted and reported her own stories on-camera. From this description, it seems that Phoenix was violating the Fair Labor Standards Act and the New York Labor Law by not paying Ms. Wang for her work.
For an internship program to be legal, the Department of Labor sets forth a six factor test, each of which must be met:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

http://www.dol.gov/whd/regs/compliance/whdfs71.pdf . If Ms. Wang was actually performing the duties of a reporter, the internship would not pass factors 3 and 4. Presumably, if Ms. Wang didn’t script and report on her stories, a regular employee would have. Interns are not supposed to be an unpaid replacement for another employee, and an internship is not to be an unpaid, months-long trial employment. The persistence of these arrangements both unjustly enriches employers, and forecloses entire fields of employment from people who cannot afford to work for free. Ms. Wang should be entitled to be free from sexual harassment – she should also be paid for her work.