On July 22, 2014, New York Governor Andrew Cuomo (D) signed a bill (A08201) into law preventing employers from discriminating against unpaid interns on the bases of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, religion, predisposing genetic characteristics, marital status, or status as a victim of domestic violence. The new law is effective immediately and amends the existing New York Human Rights Act (NYHRA). The measure follows on the heels of a similar law passed in New York City earlier this year.
Employers should note that the law has a very strict definition of an “intern.” First, the individual must be unpaid. Second, the law defines an intern as “a person who performs work for an employer for the purpose of training” where the employer is not committed to hiring the intern at the conclusion of the internship, and where the work performed by the intern supplements experience in an educational environment and does not displace regular employees. Moreover, the intern must be under close supervision by existing staff and may not provide an immediate advantage to the employer.
The law also extends protection to unpaid interns who are sexually harassed at work. It states that it is an unlawful discriminatory practice for an employer to engage in unwelcome sexual advances, request sexual favors, or engage in other verbal or physical conduct of a sexual nature with an intern when that action affects the terms and conditions of the intern’s employment. It also prohibits harassment based on any other protected class identified above.
The law comes in response to the dismissal of a federal district court suit in New York where an unpaid intern brought sexual harassment claims under the New York City Human Rights Law (NYCHRL) against a Chinese-language television broadcasting company. The court dismissed the case because the intern was not considered an employee under the NYCHRL.
In June 2013, Oregon passed a similar measure extending workplace protections against harassment and discrimination to unpaid interns. According to State Senator Liz Krueger, the New York law is modeled after Oregon’s statute. In a press conference, she stated: “With the growing prevalence of unpaid internships and the extreme pressure on young people to build up resumes and references in a tough economy, the law needs to change to protect this extremely vulnerable class of workers. This week, we’ve taken decisive action to close this gap in our laws, protect interns, and ensure those who discriminate against or sexually harass interns are accountable under the law.”
It remains to be seen how the vast majority of jurisdictions and the federal government will approach the issue of unpaid interns being covered by anti-discrimination laws.