In a case that may be shocking to many folks (but not lawyers in the employment litigation field) NY Southern District Judge Kevin Castel last week ruled that an unpaid intern could not sue her employer under NYC Human Rights Law because she was not an “employee” under the law.
This discrepancy’s not new. It has long been the law that unpaid interns aren’t covered by Title VII of the 1964 Civil Rights Act, and New York’s state and city laws also do not define an unpaid intern as an “employee.” So while the case has gotten a lot of attention in the media because it just “seems wrong” the law does not cure all ills. If something is not specifically defined as being covered by a statute, then the statute does not cover it. According to the court’s decision, the New York City Council has had several opportunities to amend the law to protect unpaid interns but has declined to do so. That signals a clear message on the City Council’s part to not cover this class of worker.
Here is quick synopsis of the case: The intern alleging harassment, Lihuan Wang, filed a suit against Phoenix Satellite Television US, Inc. in January. Phoenix is a television broadcaster that serves the Chinese mainland and Hong Kong along with other markets with substantial Chinese viewers. According to Wikipedia, it has six different television channels including Phoenix InfoNews Channel, Phoenix Chinese Channel, Phoenix Movies Channel,and Phoenix Hong Kong Channels. Phoenix is one of the few private broadcasters permitted to broadcast in mainland China
According to the complaint, in early 2010, two weeks after Wang started working as an unpaid broadcast intern at the Chinese-language media company’s New York office, her supervisor and bureau chief, Liu Zhengzhu, invited her and several co-workers to lunch. Wang claims Liu asked her to stay after the meal to discuss her work performance and then asked her to accompany him to his hotel so he could drop off a few things. In the hotel room, she alleges, Liu took off his jacket, undid his tie, and threw his arms around her, exclaiming, “Why are you so beautiful?” She then claims Liu held her for about five seconds, tried to kiss her, and squeezed her buttocks. According to the complaint, Wang pushed Liu away and left the room, and when she later asked about job opportunities, Liu invited her to Atlantic City. When she declined, she claims Liu stopped having anything to do with her and she was not hired for the reporter position she subsequently applied for.
She has now moved back to China and Liu is no longer with the company as well. Her other claims (for failure to hire and gender discrimination) are still alive and proceeding in court.
This is the latest legal battle involving unpaid interns and companies would be wise to examine their policies and procedures in who deals with interns and how are they treated as a proliferation of lawsuits over unpaid overtime and other fair-wage claims brought by these workers have lately been successful even if the sex harassment claims have not.
If the City Council also fails to amend the law despite this decision, then it will be even clearer that when it comes to groping supervisors, unpaid interns are on their own. Before David Letterman and others get too excited and declare open season on these people, its worth mentioning that certain sexual harassment may amount to criminal offenses or other civil wrongs like assault and battery depending on the conduct alleged.