Add failure-to-hire claims to list of employment law issues involving internships
You have probably read that unpaid interns are suing employers for unpaid minimum wages and winning. Now they’re pushing the envelope even further, trying to get federal courts to hold employers liable for sexual harassment and hostile environment claims, too.
Plus, some interns have alleged that they weren’t later hired because they spurned sexual advances while they were interning.
So far, the sexual harassment claims aren’t sticking, but the failure-to-hire retaliation claims are moving forward.
Recent case: Lihuan was a journalism student at Syracuse University when she sought an internship with Phoenix Media Group, a Hong Kong-based media conglomerate that produces television news geared toward Chinese-language audiences. A man named Zhengzhu was the bureau chief, in charge of all hiring.
Lihuan got the internship and was soon pitching stories and even appearing on camera as part of her learning experience. She spoke with Zhengzhu about possible permanent positions once she finished her degree and he told her that might be possible if the appropriate visas could be obtained.
Then Zhengzhu invited all the employees out to lunch. He asked Lihuan to stay when the others went back to work so they could discuss her progress. Then he suggested they walk to his hotel so he could drop off some things. Once there, Zhengzhu allegedly lured her upstairs to his room, where he embraced her, told her how beautiful she was and tried to kiss her. Lihuan pushed him aside and left.
Later, when Lihuan tried again to discuss permanent employment, Zhengzhu told her that the company couldn’t get visas. When the internship ended, no job materialized.
Lihuan sued, alleging sexual harassment under both New York state and New York City human rights laws. She also alleged sex discrimination in hiring, arguing that she had rejected a sexual advance, which cost her a permanent job.
The court first determined that unpaid interns aren’t employees and therefore can’t sue for sexual harassment. But the court also said her failure-to-hire claim could proceed. Lihuan will have a chance to show that rejecting Zhengzhu’s alleged advances was the reason she wasn’t offered a position when her internship ended. (Wang v. Phoenix Satellite Television, No. 13-Civ-218, SD NY, 2013)
Know the rules requiring you to pay interns
Employers must pay interns if any of the following do not apply:
- The internship is similar to training that would be given in an educational environment.
- The internship experience is for the benefit of the intern.
- The intern does not displace regular employees, but works under close supervision of existing staff.
- The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded.
- The intern is not necessarily entitled to a job at the conclusion of the internship.
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Miss one factor, and the intern must be paid. And if you have to pay the intern, she becomes an employee who can sue for sexual harassment just like any other employee.
