On Friday, January 30, the movement towards eliminating exploitative unpaid internships will take another significant step forward. Lawyers representing interns, employers, and, possibly, other interested parties will appear before a panel of judges from the U.S. Court of Appeals for the Second Circuit. The court is considering interlocutory appeal questions stemming from two lawsuits brought by former unpaid interns who asserted that federal and state labor law obliged their employers to pay them at least the mandated minimum wage. The decision the court renders will undoubtedly have profound impact for interns, employers, colleges, the labor market, the economy, and the movement to improve the working conditions for interns across the country.
Open to the Public (it is advisable to arrive early, as there can be a wait to get through building security).
Where: Room 1703, Thurgood Marshall Federal Courthouse, 40 Foley Square, Manhattan.
When: 10 a.m., Friday, January 30, 2015.
About the Cases and the Law Under Review
Both cases, like the dozens of others that have been filed in their wake, largely turn on how a Supreme Court decision from 1947 applies today to the many employers who appear to believe that categorizing an employee as an “intern” is sufficient to relieve such employers of the obligation to pay wages for the labor their organizations use to succeed.
In short, the Supreme Court’s 1947 decision in Walling v. Portland Terminal Co. determined that bona fide trainees are not to be considered employees under the Fair Labor Standards Act (FLSA), the New Deal act establishing a federal minimum wage and time-and-a-half for overtime, among other rights and protections. The U.S. Department of Labor (USDOL)—which is responsible for implementing the FLSA and is actively supporting the interns in these lawsuits—has long asserted that Portland Terminal holds that a strict six-element test should be applied when considering would-be training programs, and that failure to satisfy any element of the test means that the trainee in question is an employee who is thereby entitled to all of the rights and protections provided by the FLSA. In April 2010, the USDOL issued a Fact Sheet (#71) specifically explaining how that test would apply to contemporary unpaid internships. New York State’s Department of Labor applies an even stricter 11-element test, which it explains it its own fact sheet. (Note: Federal and state labor law also provides for unpaid bona fide volunteers, which may apply to internships at not-for-profit organizations or government agencies that nevertheless do not satisfy the trainee test.)
The USDOL’s strict reading of the six-element test was upheld in June 2013, when the federal district court judge in Glatt v. Fox Searchlight Pictures, Inc., ruled in favor of the interns. Fox’s appeal of that decision is one of two now being considered by the Second Circuit.
The other appeal being heard on January 30 was filed on behalf of interns in Wang v. Hearst Corp. Unlike the judge in Glatt, the district court judge in Wang did not apply the USDOL’s strict test. Instead, the judge applied a “primary beneficiary” test favored by employers who want to be excused from the obligation to compensate for labor when, according to inherently subjective standards, an intern “benefits” more than an employer from such workplace arrangements.
To many legal analysts, the Second Circuit’s resolution of the question as to which test should apply (the USDOL’s strict six-element test, the looser primary beneficiary test, or a new test that the Second Circuit develops) will likely have far-reaching implications for internship programs nationwide. It is noteworthy that the USDOL has submitted amicus curiae (friend of the court) briefs on behalf of the interns in both cases, thoroughly analyzing for the Second Circuit’s consideration the legal reasoning justifying their strict test. [Update: An attorney from the U.S. Department of Labor will also support the interns by arguing in person before the court. See below.]
About the Oral Arguments on January 30
The plaintiff-interns in both Glatt and Wang will be represented by attorney Rachel Bien, Partner and Co-Chair of the Class & Collective Action Practice Group at the firm Outten & Golden. Bien represented the plaintiff-interns of both cases in the court below, the U.S. District Court for the Southern District of New York. Bien appeared on the panel Intern Labor Rights organized at the Housing Works Bookstore Café in October 2013, “Will Work for Free: Breaking Down the Intern Economy,” and has discussed the topic on MSNBC’s “All In with Chris Hayes” and at Yale Law School’s 2014 Rebellious Lawyering (RebLaw) Conference, among other outlets.
For both cases combined, Ms. Bien will argue for approximately 30 minutes. [Update: In Wang Ms. Bien will argue for approximately 15 minutes; in Glatt she will argue for approximately 12 minutes and an attorney from the U.S. Department of Labor will argue for approximately 8 minutes.]
The Hearst Corporation will be represented by in-house counsel. They will have approximately 15 minutes to present their arguments.
Fox Searchlight Pictures and Fox Entertainment Group will be represented by attorney Neal Katyal, professor of law at Georgetown University Law Center, former Acting Solicitor General of the United States, and partner at the firm Hogan Lovells. Katyal, who is experienced arguing before the U.S. Supreme Court, was brought on to the case specifically for this appeal. For more on the context of Fox’s hiring such a prominent lawyer, see this recent article by Reuters, “The Echo Chamber,” which situates Katyal among an increasingly select handful of lawyers who regularly appear before the Supreme Court and which expresses dismay at the pro-business implications of the trend. Katyal will have approximately
15 [Update: 20] minutes to present Fox’s arguments.
During the arguments, observers might develop a sense from the judges’ questions of what legal issues they consider most important, what lines of reasoning they find less or more persuasive, what questions remain unresolved, et cetera. It is unlikely that the court’s eventual decision will become self-evident during the arguments. Instead, conclusion of the oral arguments marks the beginning of an indeterminate waiting period. Weeks or months afterwards, the court will hand down its decision and the legal ramifications for the intern labor market will become another degree clearer, even if still requiring fundamental improvement and ongoing advocacy.
[Update: The three-judge panel that will be hearing the arguments has been announced. It will be composed of Circuit Judges John M. Walker, Jr., Dennis Jacobs, and Richard C. Wesley. All three were appointed to the Second Circuit by Republican presidents, the former two by George H.W. Bush and the latter by George W. Bush.]
The following briefs have been submitted to the Second Circuit for consideration in the interlocutory appeals from Wang v. Hearst Corp. and Glatt v. Fox Searchlight Pictures, Inc., being heard in tandem. This is not necessarily a complete account of all briefs that have been filed in each case.
Wang v. Hearst Corp.
Brief for Plaintiffs-Appellants (the interns).
Brief for Defendant-Appellee (Hearst).
Amicus curiae (friend of the court) brief for the Secretary of Labor, U.S. Department of Labor, in support of Plaintiff-Appellants.
Amici curiae (friends of the court) brief for the Economic Policy Institute; National Employment Law Project; National Employment Lawyers Association; Writers Guild of America East; Ross Perlin; and Professor David Yamada in support of Plaintiff-Appellant.
Glatt v. Fox Searchlight Pictures, Inc.
Brief for Defendants-Appellants (Fox).
Brief for Plaintiffs-Appellees (the interns).
Amicus curiae brief for the Secretary of Labor, U.S. Department of Labor, in support of Plaintiff-Appellees.
Amici curiae brief for the Economic Policy Institute; National Employment Law Project; National Employment Lawyers Association; Writers Guild of America East; Ross Perlin; and Professor David Yamada in support of Plaintiff-Appellees.
Amici curiae brief for the American Federation of State, County and Municipal Employees, AFL-CIO; Communications Workers of America, AFL-CIO; Service Employees International Union; and United Food and Commercial Workers International Union, AFL-CIO in support of Plaintiff-Appellees.
Amici curiae brief for the Chamber of Commerce of the United States of America and the California Employment Law Council in support of Defendants-Appellants.
Amici curiae brief for the American Council on Education; American Association of State Colleges and Universities; Association of Public and Land-grant Universities; American Association of Community Colleges; College and University Professional Association for Human Resources; and NASPA: Student Affairs Administrators in Higher Education in support of “Neither Party” (effectively in support of Defendants-Appellants).
Note: Information in this post is subject to change, differing interpretation, and even unintentional error.