Unpaid Fox Interns Get Class Action Status

americanlawyer.com Julie Triedman
June 12, 2013

As interns flood the summer work force once again, a federal judge in New York has just given them something to cheer about.

In an unprecedented ruling, U.S. District Judge William Pauley III in Manhattan found that unpaid interns at various Fox subsidiaries should be considered employees under 2010 guidelines drafted by the U.S. Department of Labor, entitling them to compensation under federal and state labor laws. Rejecting various defense arguments put forward by Fox’s lawyers at Proskauer Rose, Pauley granted certification of a class of interns seeking back pay.

The class isn’t large probably between 100-150 interns, according to one of the lawyers involved. But the plaintiffs’ team at Outten & Golden hailed the decision as a major breakthrough. “This is the first case where there has been a ruling that establishes that unpaid interns are employees,” said Outten’s Juno Turner. “This means that if interns are providing work of immediate benefit to employers where they are not receiving training other than what they’re learning on the job, then they’re entitled to wages.”

The ruling follows a conflicting decision in the same district just last month. In that case, which was also brought by Outten & Golden, an intern is seeking back pay on behalf of a proposed class that theoretically includes thousands of past interns in the vast Hearst Corporation magazine empire. After conditionally certifying a collective FSLA action last summer, U.S. District Judge Harold Baer Jr., denied certification on May 8, finding that the interns, who held a variety of jobs, didn’t meet the higher bar for showing class commonality established by the U.S. Supreme Court in Dukes v Wal-Mart. Baer also found that Hearst was within its rights to bring in the named plaintiff, Xuedan Wang, without pay under a “trainee” exception to the Fair Labor Standards Act.

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Outten & Golden, which is representing the plaintiff interns in both cases, has already sought leave to appeal the Hearst decision. Rachel Bien is leading the charge at Outten & Golden in both cases. Fox’s lawyer, Elise Bloom at Proskauer Rose, didn’t respond to a request for comment. (Hearst is relying on an in-house team as well as Proskauer’s Mark Batten in the case before Judge Baer.)