Called slave labor by some and invaluable learning experiences by others, unpaid internships have, for the most part, been considered outside the aegis of workplace laws protecting employees from harassment, discrimination, and retaliation. However, that may soon change in New Jersey.
On December 5, 2013, New Jersey State Senator Nia H. Gill introduced bill S-3064, which amends three existing New Jersey laws—the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act, and the Worker Freedom from Employer Intimidation Act— to extend the laws’ protections and remedies to unpaid interns.
The proposal of legislation was sparked by a recent decision out of the United States District Court for the Southern District of New York holding that unpaid interns are not protected against sexual harassment by the New York City Human Rights Law (NYCHRL). In that case, Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ. 218(PKC), 2013 WL 5502803 (S.D.N.Y. Oct. 3, 2013), plaintiff, a former unpaid intern with defendant media company, alleged that she was unlawfully subjected to a hostile work environment by defendant through her then supervisor’s sexual advances. Id., at *3. The court dismissed plaintiff’s hostile work environment claim brought under the NYCHRL, holding that, because plaintiff was an unpaid intern, she was not an “employee” within the meaning of the NYCHRL. Id., at *9. The court found that the plain terms of the NYCHRL make clear that the statute’s anti-discrimination provision only extends coverage to paid employees—the only employees who enjoy the “the conditions or privileges of employment.” Id., at *4. The court further noted that its interpretation of NYCHRL is consistent with analogous interpretations of the New York State Human Rights Law and Title VII of the Civil Rights Act of 1964, which have both been interpreted to exclude unpaid interns from their protections. Id., at *7.
The proposed New Jersey legislation is an attempt to remedy the gap in the workplace protection afforded to unpaid interns. A similar bill was introduced in New York in October 2013 to prohibit discrimination against unpaid interns on the basis of “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status or domestic violence victim status.” The New York bill would also provide protection against sexual harassment and whistleblowing. Oregon was the first state (and, so far, the only state) to pass a law extending employment discrimination protection to interns. Oregon’s new law, passed on June 13, 2013, protects unpaid interns against sexual harassment, unlawful discrimination, and retaliation for whistleblowing.
Employers should recognize that if S-3064 is passed, unpaid interns will be afforded the same protections against discrimination, harassment, and retaliation as regular employees. Employers should warn their employees that they are expected to respect workplace laws with respect to interns, paid and unpaid. Additionally, employers would be well served to evaluate their current policies to ensure that they extend to and protect unpaid interns from discrimination, harassment, and retaliation. We will continue to monitor the status of the proposed legislation and will provide updates as to further developments.