Unpaid and Unprotected 

New law grants NYC interns recourse for sexual harassment

In 2010, Lihuan Wang was a 22-year-old journalism graduate student and unpaid intern working in the New York offices of Phoenix Satellite Television, a major Chinese-language broadcaster. So when the company’s D.C. bureau chief, Zhengzhu Liu, asked Wang to stay and speak privately after a professional lunch in New York City, she was thrilled at the opportunity to pitch herself for a permanent job.

Instead, she found herself trapped in a cab and then a hotel room with Liu as he became increasingly inappropriate and sexually aggressive. When his advances got physical, Wang fled the room. Many victims of such incidents never report the perpetrator or even talk about what happened, for fear of negative judgment or professional repercussions. But, Wang chose to stand up for her rights, and convinced several coworkers to stand with her. That’s when she found out that she didn’t have the right to seek legal recourse—as an unpaid intern, Wang wasn’t protected by federal, state, or local laws covering sexual harassment.

According to the federal judge who tossed out her sexual harassment suit in October 2013, unpaid interns did not qualify as employees, and so were also barred from the legal protections to which employees are entitled.

That changed last week — at least in New York City. Wang’s case caught the attention of NYC legislators, who unanimously approved a measure to ensure unpaid interns have recourse from workplace sexual harassment.

The new law expands the employment provisions of New York City’s existing human rights law to cover unpaid interns who were previously outside the statute’s definition of an employee.

“Interns are often young people getting their first experience in a professional setting,” Council Speaker Melissa Mark-Viverito said at the bill signing. “It’s especially important that they are exposed to a respectful and appropriate environment where their rights are protected.”

Council Member James Vacca, who sponsored the bill, read out from an email he said he received from Wang, who has since moved back to her native China.

“This means a lot to me personally,” she wrote, “and I’m sure, for the tens of thousands of New York interns. I’m so glad that I played a part in this righteous fight.”

But not everyone was satisfied with the new amendment to the city’s human rights code.

Greg Riestenberg, a member of the New York City-based advocacy group Intern Labor Rights, says the language in the law defining an “intern” is still too narrow.

“As much as we appreciate the gesture,” he said at the bill signing, “We think this doesn’t cover enough people who don’t fit the imagined definition of what an internship is.”

In a phone conversation, Riestenberg added that his group has identified interns who may not be protected by the terms laid out in the legislation — many of whom perform unskilled work, which he says would not meet the legislation’s definition of an internship since it isn’t educational or beneficial in advancing a career.

Volunteers and pro-bono workers in New York City could also be denied the right to bring legal claims against sexual harassment since the new legislation deals so specifically with interns.

And the law skirts a bigger issue: by classifying workers as interns, for-profit companies deny many the broader legal protections that would come from the designation of “employee” — in addition to a proper paycheck. “Even if they went back and revised the language in the way that we’re asking them to,” Riestenberg says, “[the legislation] would still be side-stepping the issue that many of these internships are illegal.”

Advocates believe that many people working as unpaid interns at for-profit companies should actually be classified as employees under the Fair Labor Standards Act and should thus be entitled to at least minimum wage. If that law were more thoroughly enforced, such workers would have the right to sue for sexual harassment without any new legislation — not to mention the fact that they would enjoy all of the other protections granted by federal and state employment laws.

“By enforcing the [internship] criteria set by the Department of Labor, [New York City] would not only be upholding the law,” Riestenberg says, but the City would also help ensure the rights of interns as far as workplace harassment goes.

This classification issue came into the spotlight again last year, when a group of interns who worked on the movie Black Swan won back pay from Fox Searchlight Pictures (Fox has since appealed). Their case was based on a little-noticed 2010 standard issued by the Department of Labor, outlining a six-factor test to determine whether a worker may be classified as an unpaid intern. Among the criteria: “The intern does not displace regular employees…” and “The employer that provides the training derives no immediate advantage from the activities of the intern.”

A final ruling in the Black Swan case will offer a more precise stance on the legality of unpaid internships in the entertainment field, but for now the Department of Labor’s six-point rubric is the most authoritative standard on who can be an unpaid intern, and who must be classified and treated as an employee under the law. One young man who claims he interned as a security guard for a New York City high school recently sued the City Board of Education for unpaid wages, for example. Dozens of other interns across the country have also filed lawsuits claiming their work benefitted the companies they worked for more than them.

When this new law goes into effect in June, thousands of unpaid interns across New York City will have legal protections those before them never enjoyed. New York City now joins Oregon and Washington, DC among the first places to extend harassment and discrimination protection to unpaid interns. Similar legislation is pending in California, New Jersey, and the New York state legislature. But until a case like that of Lihuan Wang comes up, it’s unclear if lawmakers in other areas will be motivated to act.