Tuesday, August 5, 2014
Are unpaid interns protected by American employment law? The latest chapters in this ongoing story come to us from Wisconsin and New York.
In a July 22 decision, Masri v. State of Wisconsin Labor and Industry Review Commission, the Wisconsin Supreme Court ruled that it was reasonable for Wisconsin’s Labor and Industry Review Commission to conclude that uncompensated interns are not entitled to the anti-retaliation protections of that State’s health care worker protection statute. The plaintiff was a doctoral student who worked as an unpaid intern at a medical college and, she alleged, was fired for reporting “clinical/ethical concerns.” The statute bans certain health care employers from taking “disciplinary action against . . . any person” who in good faith reports violations of state or federal law, and further defines “disciplinary action” as "any action taken with respect to an employee," but does not define the term “employee.” The Court discussed the text of the statute and related provisions, their purpose, and public policy arguments raised by both sides. The Court’s upshot: The statute applies only to employees, and “the ordinary meaning of ‘employee’ is someone who works for compensation or tangible benefits.”
Meanwhile, also on July 22, New York’s Governor signed into law a bill that amends New York’s employment-discrimination statute to expressly cover unpaid interns. Back in October 2013, a federal district court, in Wang v. Phoenix Satellite Television, Inc., No. 13 Civ. 218 (S.D.N.Y. Oct. 3, 2013), had dismissed an unpaid intern’s sexual harassment claim under that statute. That claim required her to be an “employee.” Although she had argued that, though unpaid, she was still an “employee” under the statute. The district judge concluded, however, that remuneration was a necessary condition for an employment relationship.
The newly-amended New York statute—now in effect—defines a new category of worker—an “intern”—and then separately declares “unlawful employment practices” with respect to interns that parallel the “unlawful employment practices” already identified by the statute. This drafting strategy slightly differs from Oregon’s law, Or. Stat. § 659A.350. Passed last year, Oregon’s law similarly defines “intern” but provides that an intern “is considered to be in an employment relationship with an employer for the purposes of the employee protections provided under” certain specified employment protections in Oregon’s code.