Act Two of the Unpaid Internship Saga: Human Rights Protections

by Ashley Ring

Recently, with unpaid interns center stage, issues beyond wage standards have captured the limelight, resulting in increased human rights protections for some interns.

Wage Demand Claims Set the Stage
For the last year, the spotlight has been on Hollywood’s unpaid interns demanding payment for their work. Although the issue has existed for years, a lawsuit brought by a pair of unpaid interns against Fox Searchlight sparked subsequent lawsuits against industry giants like NBCUniversal, Marvel, and Warner Music Group. This explosion of lawsuits has set the stage for public inquiry into why unpaid interns are denied so many legal protections, including legal recourse for sexual harassment. The case of Lihuan Wang has provided a close-up of this issue, inspiring recent changes in legislation that will hopefully edit sexual harassment from the script of Hollywood internships.

No Legal Protections for Sexual Harassment
Unpaid interns are not legally protected from sexual harassment at work because they are not employees within the meaning of Title VII of the Civil Rights Act. State laws may offer some protection for unpaid interns, but most do not. The call for change in this area pre-dates the recent flurry of wage claims in Hollywood, but it is because of these wage claims that the issue has recently managed to come into the spotlight .

Amid the push of unpaid intern claims for wages, Lihuan Wang brought a suit against Phoenix Satellite Television U.S. for sexual harassment in 2013. Wang was an intern for the TV network and alleged that her supervisor asked her to discuss her work and then tried to kiss her and inappropriately touch her. A New York federal district court ruled that Wang did not have standing to bring the claim because she was not paid and therefore was not an employee within the meaning of New York State Human Rights Law (NYSHRL).  Not all legal experts agreed with this interpretation of the law, and responded by calling for a need for change to prevent future court misinterpretation of the law.

Changes to State Law
Wang’s case against the television company inspired the proposal of a law, which was signed by New York City Mayor Bill de Blasio last summer, ensuring that New York City’s Human Rights Law covers unpaid interns. Wang’s case also provided the inspiration for New York state senator Liz Krueger to seek protections for unpaid interns in her home state. State senator Krueger proposed a state bill that was signed into state law by the New York legislature shortly after the city amendment signed by the Mayor, this July 2014.

In August, Illinois enacted similar legislation to protect unpaid interns against sexual harassment in the workplace. This amendment to the Illinois Human Rights Act will go into effect at the beginning of 2015. California followed Illinois and signed a similar bill in September that expanded Title VII of the 1964 Civil Rights to include unpaid interns. Oregon and Washington D.C. are the only other jurisdictions which have comparable protections in place. With Michigan recently proposing legislation which would amend the Michigan Occupational Health and Safety Act to give equal protection to volunteers and unpaid interns, it is clear that the movement to provide protections is still rolling.

What This Means for the Entertainment Industry
The entertainment industry has taken note and implemented changes in response to recent wave of claims made by unpaid interns. One response has been to cut internship programs all together. While this response eliminates company liability, it is not an ideal solution as many people view unpaid internships as a way to get their foot in the door in the entertainment industry. Another response has been to comply with federal and state minimum wage and hour standards, thus re-classifying interns as employees, and providing coverage under the Fair Labor Standards Act (FLSA) . With much of the entertainment industry running operations in California and New York, it is clear that changes to unpaid internship practices and policies must comply with the recently passed state laws protecting against sexual harassment for those interns. Hopefully these changes within the entertainment industry will spur changes to federal legislation that expand to cover unpaid interns in other industries as well.

Ashley Ring is a 3L at the Sandra Day O’Connor College of Law at Arizona State University. She is an associate editor for the Sports & Entertainment Law Journal.