November 29, 2020

Volume X, Number 334

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Reminder: New York Interns Are Now Protected Under Both the State and City Human Rights Laws

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”).

Like the NYCHRL amendment, the legislation to amend the NYSHRL was introduced in response to an October 2013 decision out of the U.S. District Court for the Southern District of New York (Wang v. Phoenix Satellite Television US, Inc.) holding that unpaid interns are not protected against discrimination and harassment by the NYCHRL.

More specifically, the NYSHRL defines “intern” as an individual who works  for  an employer for the purpose of training under the following circumstances: (a) the employer isn’t committed to hiring the individual following the training period; (b) the employer and the individual agree that the individual is not entitled to wages; and (c) the work performed by the individual (1) provides or supplements training that could enhance the individual’s employability, (2) benefits the individual, (3) does not displace a regular employee and (4) is closely supervised by existing staff.

Under the amendment to the NYSHRL, which took effect on July 22nd, employers are prohibited from refusing to hire, discharging, or discriminating against an intern, in the terms and conditions of the internship, on the basis of the individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability,  predisposing  genetic  characteristics,  marital status, or domestic violence victim status.  The law also prohibits employers from: (a) either sexually harassing an intern or harassing an intern on the basis of the foregoing protected characteristics; (b) retaliating against an intern for opposing discrimination; (c) requiring a pregnant intern to take a leave of absence, unless the intern’s pregnancy prevents her from performing the activities associated with the position in a reasonable manner; and (d) producing any statement, advertisement, publication, or internship application that either directly or indirectly expresses any limitation, specification or discrimination on the basis of a protected characteristic.  The NYCHRL provides similar protections from harassment and discrimination to interns.

Conclusion

As students are returning to college this Fall and employers are gearing up to usher in a new wave of interns in the coming semester, New York employers should promptly make any necessary changes to their handbooks or other employment policies to ensure consistency with the amendments to the NYSHRL and NYCHRL.  Employers should also take heed of the surge of litigation concerning whether interns are improperly classified and entitled to minimum wage and overtime under applicable state and federal laws.

Andrew Smith contributed to this article and is a law school intern currently attending Brooklyn Law School.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IV, Number 262
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TRENDING LEGAL ANALYSIS

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About this Author

Lisa Lewis, Legal Specialist, Sheppard Mullin,Labor, Employment, special counsel
Associate

Lisa Lewis is a special counsel in the Labor and Employment Practice Group in the firm's New York Office.

Areas of Practice

Ms. Lewis is experienced in representing employers in a variety of employment-based matters in both judicial and arbitral forums, including disputes relating to breach of restrictive covenants and employment agreements, misappropriation of trade secrets, discrimination and harassment allegations, and wrongful termination.  Ms. Lewis also counsels employers on labor and employment issues, including wage and hour matters, personnel...

212-634-3046
Jonathan Sokolowski, Labor and Employment Legal Specialist, Sheppard Mullin
Associate

Jonathan Sokolowski is an associate in the Labor and Employment Practice Group in the firm's New York office.

Areas of Practice

Mr. Sokolowski's practice focuses on Labor and Employment matters, including client counseling and litigation. In particular, he has experience defending employers against single plaintiff and class action wage/hour and discrimination claims, drafting employment, severance, non-compete, and non-solicitation agreements, as well as drafting employee handbooks in compliance with state and federal law. Mr. Sokolowski also conducts...

212-634-3047
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