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August 6, 2014

New York Expands Human Rights Law Protections to Interns

As of July 22, 2014, unpaid interns in New York will have the same workplace protections as paid employees, by virtue of a new state law that closes what many perceived to be a loophole in New York anti-discrimination law.

By way of example, in 2013, a federal judge ruled that a former unpaid intern, who had alleged that her boss at a Hong Kong media conglomerate's New York bureau had groped and tried to kiss her, could not sue him for sexual harassment. Wang v. Phoenix Satellite Television, 976 F. Supp. 2d 527 (S.D.N.Y. 2013). Similarly, in an earlier case, the court dismissed the claim of a female psychiatry student who, while performing required field work for her major, was allegedly subjected to crude and overt sexual advances by one of her supervisors. O'Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). In both instances, the courts were forced to dismiss the interns' claims, stating that, by the plain language of the applicable city, state, and federal law against harassment and discrimination, they applied only to paid employees.

To remedy these types of situations, New York expanded its Human Rights Law by adding Section 296-c titled, "Unlawful discriminatory practices relating to interns." N.Y. Exec. Law § 296-c. The new section, which took effect as of July 22, 2014, broadly prohibits employers from discriminating against interns based on any of the protected classes under the Human Rights Law. Of course, the law also prohibits subjecting an intern to "quid pro quo" or "hostile work environment" sexual harassment.

The new section defines an intern as a person who, for no wages, performs work that: provides or supplements training that may enhance the intern's employability, provides experience for the intern's benefit, does not displace regular employees, and is performed under the close supervision of existing staff. The definition closely tracks recent U.S. Department of Labor guidance reminding employers that unpaid interns may actually be employees under the Fair Labor Standards Act, the federal minimum wage and overtime law.

If you have any questions about the content presented in this alert, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment Practice Area.

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