Several States Follow New York’s Lead in Extending Sexual Harassment Protections to Unpaid Interns

New York City enacted a law amending the city’s Human Rights Law (NYCHRL) to prohibit sexual harassment against unpaid interns. The state has enacted a similar law. Unfortunately, New York is one of only a handful of states to include unpaid interns among those who are protected from sexual harassment. The general legal position is that without a paycheck, a person is not an “employee,” and therefore not entitled to the protection of a state’s employment laws. A high-profile New York City case, however, may have inspired some legislators in other states to take action. A bill currently pending in Michigan is the latest to offer expanded protection to this vulnerable group of workers.

In most states, only paid employees of covered employers may avail themselves of the protections offered by anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964 and many state statutes, against sexual harassment and other unlawful practices. The Second Circuit Court of Appeals made this position clear in stark terms in a case involving a sexual harassment claim by an unpaid intern in New York, stating that if the claimant receives no “financial benefit” from the employer, “no ‘plausible’ employment relationship of any sort can be said to exist.” O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997).

A New York federal judge ruled against an unpaid intern in 2013 in a sexual harassment lawsuit brought under the NYCHRL, finding that the law did not apply to people who are not paid. The decision noted that the New York City Council had not amended the NYCHRL to include unpaid interns among those protected by the law, despite multiple opportunities to do so. This led to the passage of a bill by the City Council amending the NYCHRL, which Mayor de Blasio signed in April 2014. The statute now protects unpaid interns against sexual harassment and other unlawful employment practices. See N.Y.C. Admin. Code § 8-102(28).

Oregon was the first state to enact legislation extending employment protections to unpaid interns. The governor signed HB 2669 on June 13, 2013, and it became effective immediately. The bill added a new section to Oregon’s anti-discrimination law, expressly allowing unpaid interns, defined as someone performing work for training or educational purposes, with an agreement that the person is not entitled to compensation and that the employer is not obligated to offer the person a paid position at the end of the training. OR Rev. Stat. § 659A.350. Similar bills have become law in New York, Illinois, the District of Columbia, and California.

A bill currently pending in Michigan, HB 5691, would amend the state’s occupational safety and health act by adding student interns and other people “performing work primarily for educational purposes” to the definition of “employee.” MI Comp. L. § 408.1005. The bill’s sponsor reportedly tried introducing a bill that would amend the state’s civil rights statute, but he found that support was easier to obtain for a bill amending the occupational safety law. He introduced the bill in the state House of Representatives on June 12, 2014. It is now pending in the Committee on Commerce.

The employment attorneys at Phillips & Associates represent workers in the greater New York City area, helping them assert their rights in claims involving sexual harassment, pregnancy discrimination, and other unlawful employment practices. To schedule a free and confidential consultation to discuss your case, contact us today online or at (212) 248-7431.

More Blog Posts:

Former Intern Sues New York City Financial Advisor, Firm for Alleged Sexual Harassment, New York Employment Attorney Blog, October 22, 2014
“Ink Masters” Production Assistant Files Sexual Harassment Lawsuit in New York Federal Court, New York Employment Attorney Blog, April 19, 2014
New York City Amends Human Rights Law to Include Sexual Harassment Protections for Unpaid Interns, New York Employment Attorney Blog, March 26, 2014

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