By Bill Donahue, Law360
A former unpaid intern who claims Hearst Corp.'s intern policies violated federal labor law accused the magazine publisher on Tuesday of dragging its feet in turning over contact information for possible class members and actively impeding the notice process.
Xuedan Wang won conditional certification last year on her claim that Hearst ran afoul of the Fair Labor Standards Act by failing to pay magazine interns for entry-level work, entitling her to begin notifying other interns — potential opt-in plaintiffs — of her lawsuit, filed in New York federal court.
But on Tuesday, Wang's attorneys said Hearst had turned over only a fraction of the contact information it was ordered by the court to divulge, making available full information for only 328 of the estimated 3,000 potential class members.
"By failing to make a good-faith effort to search for and produce contact information for potential collective members, defendant prevented these individuals from receiving timely notice of their rights in this case, undermining the FLSA’s remedial purpose in the process," the motion said.
The company maintained that it didn't keep a list of former interns, but Wang's attorneys said the publisher seemingly had no problem finding unlisted former employees for another reason: to secure declarations against Wang's charges.
"Although defendant was able to find these individuals in order to obtain declarations from them, 19 of them were not on the class list at all," the motion said. "It will not be unduly burdensome for defendant to collect additional collective member contact information — indeed, when defendant needed to reach potential collective members to obtain declarations to support its defense, it apparently had little trouble locating them."
The plaintiffs want the court to extend the notification period and order Hearst to be more helpful during the process, including reaching out to intern supervisors at its magazines and departments and asking for all contact information that they may have.
On top of the alleged lack of effort, Wang also took exception to how Hearst's interns reportedly interacted with the former interns that it reached for declarations. The plaintiff says the defense attorneys mislead the former interns about her case, did not inform them that they could join it and even intimated that they represented the former interns' interests rather than Hearst's.
"The court should also authorize corrective notice to those collective members from whom defendant obtained declarations, claimed to represent and failed to provide adequate disclosures, informing them that they are still eligible to participate in the case," the motion said. "Courts routinely take similar measures to protect class members' rights following inappropriate communications from defendants."
An attorney for Hearst didn't immediately return a request for comment on Wednesday.
Wang first sued in February, claiming she worked full time at Hearst magazine Harper's Bazaar for five months — sometimes as much as 55 hours a week — for no pay, even though she did jobs that should have been handled by actual employees.
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Under federal law, interns can work without pay, but only if their work is for an educational purpose and does not provide the employer with a substantial benefit, according to the complaint.
Judge Harold Baer Jr. granted the interns class certification in July, ruling that they had met the fairly lenient early-stage standards for collective status under the FLSA. Several state law claims, however, have been trimmed from the case since it was lodged.
Wang is represented by Adam T. Klein, Rachel M. Bien and Elizabeth H. Wagoner of Outten & Golden LLP.
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The case is Wang v. The Hearst Corp., case number 1:12-cv-00793, in the U.S. District Court for the Southern District of New York.
By Scott Flaherty, Law360
A group of former Hearst Corp. interns urged a New York federal court Monday to grant class certification in a suit alleging that the magazine publisher violated labor laws by using interns as cheap fill-ins for gaps in its workforce.
The interns, who allege Hearst's internship policies run afoul of the Fair Labor Standards Act and New York Labor Law, filed a motion for class certification under the NYLL. A federal judge previously granted conditional certification to the Hearst interns under the FLSA, according to a memorandum filed in support of Monday's NYLL class certification bid.
“Hearst uniformly classified all class members as nonemployees based on one factor — that interns are college students who are eligible to receive academic credit for their internships,” the memorandum said. “Substantial evidence shows that interns performed productive work without pay and participated in internships structured around Hearst’s actual operations and not a classroom or academic experience.”
In addition to seeking class certification, the interns on Monday filed a motion for partial summary judgment.
With the summary judgment motion, the interns asked the court to rule that they qualified as employees as defined by the FLSA and NYLL. The interns also requested liquidated damages, and a judgment that Hearst has “willfully” violated federal and state law “based on its utter failure to take any steps to determine whether its policy of not paying interns is legal,” the memorandum said.
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In July, U.S. District Judge Harold Baer Jr. granted conditional certification to the interns under the FLSA, allowing them to pursue those claims collectively. Judge Baer said at the time that Wang met the threshold for conditional FLSA certification by establishing “that other employees 'may be similarly situated' to her.”
“Wang has satisfied this burden by providing allegations and affidavits to the effect that Hearst made a uniform determination that interns were not employees, required all interns to submit college credit letters and used interns to perform entry-level work with little supervision,” the judge said in July.
Monday's motion, which was filed by Wang along with several additional named plaintiffs, seeks to certify a class under the NYLL. The proposed class would include every person who has worked for Hearst in New York as an unpaid intern starting Feb. 1, 2006, and continuing through final judgment in the case.
Under a scheduling order, Hearst has a deadline of March 18 to oppose Monday's class certification and partial summary judgment motions, and file any cross-motions for summary judgment.
Attorneys for Hearst and the interns did not immediately respond to requests for comment Tuesday. The interns are represented by Adam T. Klein, Rachel M. Bien and Juno Turner of Outten & Golden LLP. Hearst is represented by in-house counsel Eve B. Burton, Jonathan R. Donnellan, Kristina E. Findikyan and Courtenay B. O'Connor, as well as by Mark W. Batten of Proskauer Rose LLP. The case is Wang v. The Hearst Corp., case number 1:12-cv-00793, in the U.S. District Court for the Southern District of New York.
Written by Eric Glatt, 11 Sep 2012, published in: CityWords
It's time we ditched the term "internship." The word's greatest value to employers resides in its vagueness.
Take, for example, the production of the film Black Swan, for which I worked as an accounting clerk and a post-production assistant, but for which I was not paid wages.
Why not? Because I, like scores of other workers on that film, was a relative newcomer to the industry. And being a newcomer to the film industry often means doing unpaid work, an illegal arrangement camouflaged behind the term "internship" — a term the movie industry embraces for its promise of alchemy, magically removing costs from budgets to the delight of producers and shareholders.
Unpaid internships originally evolved to provide a limited exemption from minimum wage and overtime requirements when worksite trainees receive vocational instruction. Such training must be truly and exclusively an educational experience that doesn't replace the work of paid employees.
Today, however, unpaid internships have metastasized into a labor market scourge.
Multiple factors have conspired to provide employers with this unprecedented pool of free labor: limited enforcement resources, a jobs crisis, inconsistent policies among credit-granting colleges, numerous compelling reasons for interns not to voice objections — plus the naïve faith that their universities and employers couldn't be sanctioning a practice outside the law.
Interns save employers an estimated $2 billion in annual unpaid wages according to Ross Perlin, author of the book Intern Nation.
This widespread, opportunistic misapplication of the term "internship" has irrevocably leeched it of any legitimate value.
I walked into my "internship" knowing I would be expected to do real work. My class-action lawsuit against Fox Searchlight Pictures wasn't driven by disappointment at being assigned less-than-glamorous tasks, but rather by my discovery that it simply isn't legal for an employer to accept the benefit of an intern's labor without paying for it, even when the intern agrees to work for no wage in hopes of getting a foothold in the industry.
To a college student or newly minted graduate, contributing behind the scenes in a beloved industry can undoubtedly be intriguing and exciting. But labor law isn't selectively applicable relative to how exciting an opportunity is.
Society maintains certain non-negotiable minimum requirements because otherwise employers will undermine the health of the overall labor market by pitting potential workers against each other in a competitive "race to the bottom" of the wage scale — a destination that has been reached when an unpaid intern's only compensation is the promise of a job reference.
My work on Black Swan gave me an unexpectedly vivid view of how nakedly this practice is used to control production costs and of how thoroughly it has seeped into the industry's DNA.
It even entered the subtext in the film's marketing, such as when director Darren Aronofsky explained to one interviewer that the film's "really tough" $13-million budget meant that "lots of compromises" had to be made. What he doesn't mention is that those compromises included violating labor laws with studio approval, following widespread industry practice.
It's time for all parties to stop using a term that just obscures the truth. If your film production needs entry-level workers, identify them and pay them as such. The federal minimum wage is $7.25 per hour, an amount that shouldn't break an honest budget.
But if you want to keep believing in the magic alchemy of the word "internship," let me give the last words to Nancy J. Leppink, the Labor Department's deputy wage and hour administrator, as quoted in The New York Times: "If you're a for-profit employer or you want to pursue an internship with a for-profit employer, there aren't going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law."
(Eric Glatt is a first-year law student at Georgetown University Law Center in Washington, DC. This piece was provided CityWatch by otherwords.org)
5:11 PM PDT 8/13/2012 by Eriq Gardner, Hollywood Reporter:
Lawyers want to expand the scope of a lawsuit originally brought by interns who had worked on "Black Swan."
A class-action lawsuit that takes issue with internships at Fox Entertainment is becoming a lot bigger.
Last fall, two interns who worked on Black Swan sued Fox Searchlight, claiming that the company's unpaid internship program violated minimum wage and overtime laws.
The plaintiffs now are seeking the opportunity to file an amended lawsuit that will "broaden the scope of the case to include all interns who participated in Fox Entertainment Group's internship program."
According to a court filing made public Monday, an investigation in the case "shows that the same hiring, personnel and company policies that applied to Searchlight interns applied to all interns who participated in FEG's internship program."
The plaintiffs point to 20th Century Fox, among other FEG business units, saying that until July 2010, interns hired to work there were not paid, even though they were required to fill out I-9 forms, sign confidentiality agreements and were deemed "employees" covered under workers' compensation laws.
According to the legal documents, FEG changed its policy in July 2010 to require all interns to be paid about $8 per hour.
The plaintiffs in the case not only want to expand the scope of this pending lawsuit, they are seeking to separate two classes of interns -- those who were "corporate interns" at Fox and those who were "production interns" at Fox.* * *
Internships have been a legal hotspot in entertainment and media in the past year. As the number of unpaid internships has increased, so too has the number of disputes. Besides the current case, former interns have filed separate lawsuits against Hearst Corp. and the Charlie Rose show over alleged abuse of their internship programs.
The Fair Labor Standards Act typically has been interpreted to allow companies to have unpaid interns if there's an educational benefit involved, but the Labor Department has made it clear that interns can't replace regular employees.
According to the original lawsuit, the plaintiffs alleged that “Fox Searchlight’s unpaid interns are a crucial labor force on its productions, functioning as production assistants and bookkeepers and performing secretarial and janitorial work. … In misclassifying many of its workers as unpaid interns, Fox Searchlight has denied them the benefits that the law affords to employees.”
Fox had no comment.
In response to the original lawsuit, Fox had objected to the fact that the "interns were not even retained by Fox Searchlight and, in fact, were working for the production company that made Black Swan well before Fox Searchlight even acquired its rights in the film."
Now, however, the proposed class action might be going much larger to render that issue moot. The judge has ordered a hearing Aug. 24 to consider the proposed motion to amend the lawsuit.