New York District Court Conditionally Certifies Class of Interns

by BakerHostetler
Contact

A Blog About Bloggers

Have you read any of the following lately?

“Chinese Government Fans the Flames of the Ebola Zombie Rumors”

“Arrested for Marijuana, Jackie Chan’s Son Could Face Execution”

“Who is Dumpling All These Tuxedo Cats at a California Animal Shelter?”

These are all recent headlines from various blogs run by Gawker Media with names like “Gawker,” “Jezebel,” and “io9.” In Mark v. Gawker Media LLC, Case No. 13-cv-4347(AJN) (S.D. N.Y. Aug. 15, 2014), Gawker became the subject of yet another in a line of cases involving unpaid interns. Four interns brought suit under the FLSA, contending that they had performed work such as “writing, researching, editing, lodging stories and multimedia content, promoting content on social sites, moderating the comments forum and managing the community of Gawker users.” Claiming they were largely unpaid replacements for paid employees, the plaintiffs sought to recover at least the minimum wage and moved for conditional certification under section 16(b) of the FLSA.

The court first addressed the law involving unpaid interns and the spate of class and collective actions concerning them filed mostly in New York district courts. We’ve blogged some of these cases here, here, and here. Our sister blog, the Employment Law Spotlight, has also reviewed the law on this issue, so we won’t repeat all the requirements.

The Mark case is interesting for several reasons. First, it involves a business that likely appeals to interns, with an online presence, creative streak, and articles (many of whose titles we won’t even repeat) that definitely have an “edgy” feel. No doubt working for Gawker was fun for many of the interns, but that doesn’t mean the FLSA won’t apply.

Second, the employer argued that the district court should disregard DOL’s Fact Sheet No. 71, which has been criticized in some courts and is now the subject of the Wang case we blogged about on May 13, 2013. Despite the pendency of the appeal in Wang, the district court deferred ruling on the issue. Later in the opinion, the court noted other facts, such as the differing availability of college credit, that may ultimately cause the case to be decertified. While we appreciate the court’s integrity in noting these issues, conditionally certifying a class that will have obvious problems down the road is a decision that can be costly and difficult for all the parties. Application of a low standard may have the practical effect of incentivizing the defendant to settle once the class is certified regardless of the merits, but that really isn’t the role a federal district court should play.

Third, the court relied on the defendant’s own, often colorful, emails and job postings as evidence of a class. The court acknowledged some of these as “tongue in cheek” (particularly the description “stressful labor under constant deadlines”), but found them sufficient evidence of a common policy. In the court’s defense, it also noted the existence of centralized policies regarding the interns’ work, and their performance of many of the same duties as paid workers.

The court authorized notice to the class based on the application of its view of the low first-stage standard. As these cases wind through the court system, we should start seeing more decisions on the merits. In this instance, it will also be interesting to see if the case reaches the decertification stage and, if so, the outcome at that time.

The bottom line: New York district courts continue to be a relatively favorable forum for collective actions involving unpaid internships.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!