Worker misclassification continues to be an issue at the forefront of today's workplace. Along with the use of unpaid interns, we are now seeing litigation brought on behalf of unpaid volunteers seeking compensation. In the last week alone, three court filings highlight various issues related to unpaid workers:
On August 6, 2013, an unpaid summer intern working at Columbia Music Corp. filed a class action lawsuit in New York state court to recover unpaid minimum wages under New York state labor laws. The named plaintiff (Britt'ni Fields) worked in Columbia's Promotions Department during the summer of 2008. According to the complaint, Fields' duties included general office task such as making photocopies and handling mass mailings. The complaint alleges that Fields and other interns should have been compensated for this time because Columbia would otherwise have needed to hire new employees or pay additional wages to existing employees to perform this type of work.
On August 7, 2013, an unpaid volunteer working at Major League Baseball's "FanFest" filed a hybrid class and collective action lawsuit in federal court for the Southern District of New York seeking to recover unpaid minimum wages under both the federal Fair Labor Standards Act and New York state labor laws. Plaintiff John Chen claims that he and other volunteers should have been compensated for the time they spent working as greeters, manning the information booth, and handling event hospitality. The lawsuit alleges that volunteers were required to attend a mandatory orientation session, pass a background check, and wear a "uniform" consisting of sneakers and khaki pants or shorts. Instead of wages, Chen and the other volunteers received Major League Baseball souvenirs.
Also on August 7, 2013, two former unpaid interns filed a petition with the United States Supreme Court seeking to resolve a conflict among federal appeals courts as to the appropriate legal test for determining whether an unpaid intern is entitled to wages under the FLSA. The petitioners, Risa Kaplan and Linda O'Neill, both completed externships as part of earning a degree in medical billing and coding at MedVance Institute. Both Kaplan and O'Neill claimed that they were entitled to unpaid minimum wages for their work checking the status of medical claims and reviewing accounts during the course of their externships.
These cases, coupled with the recent ruling against Fox Searchlight Pictures that unpaid interns working on the production of the film Black Swan were misclassified, may signal increased litigation related to unpaid interns and volunteers. Employers should review existing internship and volunteer programs to ensure that programs comply with the specific guidance issued in April 2010 by the U.S. Department of Labor. Our July 2, 2013 Practice Update addresses the DOL's guidance in detail and provides practical suggestions for evaluating workplace internship and volunteer programs.