Executive Summary: Legislation proposed by a member of the New Jersey Senate would amend the Law Against Discrimination, Conscientious Employee Protection Act, and Worker Freedom from Employer Intimidation Act to extend legal protections and remedies to unpaid interns.
New Jersey Law Would Extend Protections to Unpaid Interns
Prompted by the recent cases brought by former interns seeking back wages and overtime, State Senator Nia Gill (D-Essex), introduced a bill (S-3064) amending New Jersey's employee protection laws to extend the laws' protections to unpaid interns. The three laws amended by the bill include the New Jersey Law Against Discrimination, which is the state's anti-discrimination law, the Conscientious Employee Protection Act, which is one of the broadest whistleblower laws in the nation, and the Worker Freedom from Employer Intimidation Act, which prohibits intimidation related to religious and political matters in the workplace.
The bill's sponsor was motivated by recent cases involving unpaid interns. Recently, claims by former interns for back wages and unpaid overtime have gained national attention. In June, a federal judge ruled that two unpaid interns who worked in the movie industry were owed back pay, creating momentum for similar suits. Other suits, including ones filed by former interns of the Charlie Rose Show and Condé Nast publications, followed. Recently, an unpaid intern's sexual harassment suit against the company for which she was working was dismissed, based on the applicable statute's limitation to employees, and the judge's determination that the intern was not an employee because she was unpaid.
How Will New Jersey Compare With Other States?
In June, Oregon passed a similar measure. The Oregon law gives interns legal recourse under state anti-discrimination laws. Under the new law, unpaid interns are protected from discrimination and retaliation on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, age, military service, and disability; from retaliation from whistleblowing; and from privacy intrusions, such as Breathalyzer tests, polygraph tests, psychological stress tests, or brain wave tests. The new law also extends discrimination protections to interns who are victims of domestic violence, harassment, sexual assault, or stalking.
New York legislators have made a similar proposal. Under the New York proposal, unpaid interns would enjoy the same protections against discrimination and retaliation as employees. The New York legislators sponsoring the bill have indicated that they were also motivated by federal court decisions made in the intern cases.
What Does this Mean for Employers?
If passed, the law will extend existing employee protections to unpaid interns. Employers who use interns, whether paid or unpaid, should review their policies to ensure compliance with the law. Any employers utilizing interns, paid or unpaid, should review their wage and hour practices, and consider attending Ford Harrison's Third Annual Year End Labor & Employment Law Workshop, held on December 5, 2013, where the authors will be speaking about the proper characterization of employees and non-employee workers and best practices to avoid liability.
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