A Blog About Bloggers
Have you read any of the following lately?
“Chinese Government Fans the Flams of the Ebola Zombie Rumors”
“Arrested for Marijuana, Jackie Chan’s Son Could Face Execution”
“Who is Dumpling All These Tuxedo Cats at a California Animal Shelter?”
These are all recent headlines from various blogs run by Gawker Media with names like “Gawker,” “Jezebel,” and “io9.” In Mark v. Gawker Media LLC, Case No. 13-cv-4347(AJN) (S.D. N.Y. Aug. 15, 2014), Gawker became the subject of yet another in a line of cases involving unpaid interns. Four interns brought suit under the FLSA, contending that they had performed work such as “writing, researching, editing, lodging stories and multimedia content, promoting content on social sites, moderating the comments forum and managing the community of Gawker users.” Claiming they were largely unpaid replacements for paid employees, the plaintiffs sought to recover at least the minimum wage and moved for conditional certification under section 16(b) of the FLSA.
The court first addressed the law involving unpaid interns and the spate of class and collective actions concerning them filed mostly in New York district courts. We’ve blogged some of these cases here, here, and here. Our sister blog, the Employment Law Spotlight, has also reviewed the law on this issue, so we won’t repeat all the requirements.
The Mark case is interesting for several reasons. First, it involves a business that likely appeals to interns, with an online presence, creative streak, and articles (many of whose titles we won’t even repeat) that definitely have an “edgy” feel. No doubt working for Gawker was fun for many of the interns, but that doesn’t mean the FLSA won’t apply.
Second, the employer argued that the district court should disregard DOL’s Fact Sheet No. 71, which has been criticized in some courts and is now the subject of the Wang case we blogged about on May 13, 2013. Despite the pendency of the appeal in Wang, the district court deferred ruling on the issue. Later in the opinion, the court noted other facts, such as the differing availability of college credit, that may ultimately cause the case to be decertified. While we appreciate the court’s integrity in noting these issues, conditionally certifying a class that will have obvious problems down the road is a decision that can be costly and difficult for all the parties. Application of a low standard may have the practical effect of incentivizing the defendant to settle once the class is certified regardless of the merits, but that really isn’t the role a federal district court should play.
Third, the court relied on the defendant’s own, often colorful, emails and job postings as evidence of a class. The court acknowledged some of these as “tongue in cheek” (particularly the description “stressful labor under constant deadlines”), but found them sufficient evidence of a common policy. In the court’s defense, it also noted the existence of centralized policies regarding the interns’ work, and their performance of many of the same duties as paid workers.
The court authorized notice to the class based on the application of its view of the low first-stage standard. As these cases wind through the court system, we should start seeing more decisions on the merits. In this instance, it will also be interesting to see if the case reaches the decertification stage and, if so, the outcome at that time.
The bottom line: New York district courts continue to be a relatively favorable forum for collective actions involving unpaid internships.