The bright young interns toiling away in New York City’s corporate office towers might not get paid wages, but they do get a new perk courtesy of the City Council: protection from sexual harassment and discrimination. The city just enacted landmark reforms protecting unpaid interns under the city’s human rights statutes against harassment and discrimination. But the gaps that remain in the law show how many interns are denied even the most basic dignity in the workplace.
You might think that being labeled an “unpaid intern” is about as low as you can get in the office ranks, but a key loophole in the city’s new policies centers on an even more subordinate tier of the intern underclass: the unqualified unpaid intern. While the statute is a political milestone for intern labor rights (only a few other places, including Washington, DC, and Oregon, have established such protections), the language of the law defines “unpaid intern” so narrowly that it could exclude many of the most vulnerable interns.
To seek recourse against an abusive employer as an unpaid intern, the legislation requires that the intern be able prove she did “not displace regular employees” and worked “under the close supervision of existing staff,” among other criteria. The guidelines are apparently based on a “six part test” created by the Labor Department to monitor private employers’ compliance with the federal Fair Labor Standards Act. Yet that standard might inadvertently exclude many interns who do not meet the criteria, through no fault of their own, because they have substituted for paid employees or are working without proper supervision.
At a recent City Council hearing on the proposal for the law, intern-labor activist Peter Walsh testified, “Imagine an intern finds herself in a bad internship: she is receiving no supervision, her school is adding no academic training to her internship and she discovers she has replaced a paid employee. Is it OK for her to be discriminated against? No.”
Well, maybe. Lawmakers ultimately passed the law without broadening the definition of unpaid intern. Advocates warn that a significant swath of the intern workforce (it’s unclear how many) that lies outside the legal definition remain easy targets for discrimination and sexual abuse.
In fact, Gotham is teeming with shadow white-collar workers who are technically excluded from the new protections. Rachel Bien, an attorney working on intern law with Outten & Golden, noted in her testimony that volunteers are similarly excluded, even as employers increasingly exploit unpaid volunteers as “substitutes for paid employees or temporary workers.”