On July 22, 2014, Governor Andrew Cuomo signed into law an amendment to the New York State Human Rights Law (NYSHRL) that provides interns with certain workplace protections, including the ability to bring lawsuits due to discrimination. The amendment, which takes effect immediately, was in response to a recently issued federal court decision – Wang v. Phoenix Satellite Television US, Inc., - in which the court found that an unpaid intern was not an employee within the statutory meaning of NYSHRL and thus not able to bring a sexual harassment claim against her employer under the statute.
With the enactment of this amendment, that no longer holds true. Interns are now protected from discrimination, harassment, and retaliation in the workplace to the same extent as paid employees, regardless of the economic nature of the employment relationship. The amendment also expressly addressed protections for pregnant interns by prohibiting an employer from compelling an intern to take a leave of absence due to her pregnancy, unless the pregnancy prevents the intern from performing the functions of the internship.
Accordingly, the amendment raises several important issues for employers. First, employers should update their policies regarding harassment, discrimination, and retaliation to include interns and ensure that intern complaints follow the same investigation process as employee complaints. Second, employers should ensure that any material they print or circulate, such as job advertisements and job applications, and any inquiries they make of interns do not include any limitations and specifications, or discrimination as to any of the protected classes. Third, employers should ensure their interns satisfy the definition of an “intern,” as defined by the amendment, which generally looks at whether the individual performs unpaid work for the purposes of training, is performing work closely supervised, and is not displacing regular employees.
If interns do not meet the definition and are unpaid, the employer may be separately running afoul of state and federal wage and hour laws, which raises a host of separate issues and concerns. Therefore, given the recent push to increase legal protections for paid and unpaid interns, this amendment to the NYSHRL only further underscores the importance of employers ensuring their internship programs are in compliance with the law.