Unpaid Intern Decision May Provide Second Circuit the Opportunity to Clarify its Position on Class Certification in Light of Comcast

by Mintz Levin - Employment Matters

As we wrote about previously, the legality of unpaid internships is a hot issue this summer, with courts struggling over two issues: (1) whether employers must classify entry-level “interns” as employees under the law, and therefore pay them at least minimum wage and overtime, and (2) whether the job conditions of groups of interns are similar enough so that class action treatment is appropriate.  Nowhere is this debate more pronounced than in the Southern District of New York.

In May, Judge Baer, in Wang v. Hearst Corporation, found that interns utilized by Hearst were not necessarily employees under the law, so it would be for a jury to resolve the underlying factual disputes and, in any case, class treatment was inappropriate because the interns’ working conditions differed across the group.  One month later, a different Southern District judge, Judge Pauley, in Glatt v. Fox Searchlight Pictures, Inc., (which we wrote about here) reached a different result finding, as a matter of law, that Fox should have classified its interns as employees, and granted class status to all interns working for four of Fox Entertainment’s subsidiary corporations, including Fox Searchlight.

The Wang plaintiffs and the Glatt defendants both sought permission to immediately appeal those decisions to the Second Circuit Court of Appeals so that the Second Circuit could clarify the proper test for courts to apply in conducting any unpaid intern (mis)classification analysis.  While the Glatt petition remains outstanding, Judge Baer recently granted the Wang petition citing in part the divergent result with Glatt on the unpaid internship classification analysis. 

What I found more interesting however – and the focus of the remainder of this blog entry – is that Judge Baer’s order also appears to seek for the Second Circuit to address how the United States Supreme Court’s Comcast decision should impact the class certification analysis – an issue neither the Wang plaintiffs nor the Glatt defendants raised in their petitions. 

Comcast is the much talked about decision that the Supreme Court issued in March invalidating a certified class in an anti-trust matter in part because the plaintiffs could not show that damages were capable of measurement on a class-wide basis.  The following month, and in light of its Comcast decision, but without any written analysis, the Supreme Court vacated and remanded a Seventh Circuit Court of Appeals decision (RBS Citizens N.A. v. Ross) that had previously certified an overtime class.  The Comcast decision coupled with the Ross remand has left courts (and commentators) split over Comcast’s import. 

Some view the Comcast decision as relatively non-controversial: If the plaintiffs can show that the proposed class was damaged in the same way (i.e. they did not receive overtime payments) because of the employer’s actions that created the legal liability (i.e. the employer misclassified the employees as overtime exempt) – even if the specific damage amounts vary from class member to class member (i.e. because each class member worked a different number of hours) – then, consistent with Comcast, a court should grant certification.  This was the exact view the Ninth Circuit Court of Appeals took in a May 28, 2013 decision (Leyva v. Medline Indus., Inc.).  Otherwise, the Ninth Circuit concluded, the very fact that each class member’s actual damage amounts may vary, even though each class member was damaged from the employer’s single act, would effectively sound the death knell of the wage and hour class action. 

Others view the Comcast decision as significant: If the plaintiffs must rely on individualized proof to prove each class member’s damages (i.e. individualized proof regarding the number of overtime hours worked by each class member), even though each class member was damaged by the employer’s single act, then the court should deny class certification – so, yes, something like a possible death-knell of a plaintiff’s ability to certify a wage and hour class.  For example, a Northern District of New York court in Roach v. T.L. Cannon Corp. adopted this argument in denying class certification.  There, even though the employer failed to factor “spread of hours pay” into the weekly wage calculation, the plaintiffs would have to rely on individualized proof to demonstrate entitlement to spread of hours pay on different shifts worked. 

In April, the Roach plaintiffs petitioned the Second Circuit to review the Northern District’s class certification denial, and in turn, address Comcast.  And now Judge Baer, by permitting the Wang plaintiffs to appeal his order, appears to want the Second Circuit to do just that.  To date, the Second Circuit has only made a passing comment on Comcast (see Cuevas v. Citizens Fin. Group, Inc.), but in another context.  Hopefully, in light of Roach and now Wang, the Second Circuit will offer a full interpretation of Comcast – one that could significantly impact wage and hour litigation in this Circuit for years to come.


Written by:

Mintz Levin - Employment Matters

Mintz Levin - Employment Matters 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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.