A district court judge used the wrong test for determining who qualifies as an “employee” under wage-and-hour law when he denied class certification to Hearst Corp.'s former unpaid interns, the U.S. Department of Labor told the Second Circuit on Friday.
The DOL lodged an amicus brief at the appeals court in support of the plaintiffs, who are challenging U.S. District Judge Harold Baer's May decision denying class certification on their New York Labor Law claims and rejecting their bid for summary judgment on their status as “employees” under the Fair Labor Standards Act and NYLL.
A six-part DOL test for ascertaining whether a trainee or intern qualifies as an employee under the FLSA would have been the right way to determine the plaintiffs' employment status, and Judge Baer dropped the ball by using another standard, the agency argued.
“Instead of utilizing the department's long-standing, objective test, the district court adopted a more subjective 'totality of the circumstances' test that necessarily makes it more difficult for both employers and interns, as well as courts, to determine whether interns are employees entitled to the protections of the FLSA,” the DOL's amicus brief said.
In November, the Second Circuit gave the Hearst interns a green light to pursue their appeal of Judge Baer's decision. In the same order the appeals court agreed to hear an appeal from Fox Entertainment Group Inc. in a separate intern wage case, where Fox is taking aim at a June decision granting class and collective certification to an ex-intern who brought wage and hour claims against Fox.
The Fox and Hearst intern appeals, which are being heard in tandem, involve the question of what the proper test is for determining employee, as opposed to intern, status for wage-and-hour purposes.
On March 28, the Hearst plaintiffs filed their opening brief in their appeal, claiming that the Second Circuit should reject the test used by Judge Baer, calling it “unpredictable, subjective and hard to apply.”
The court ought to adopt the six-part test laid out in an April 2010 DOL fact sheet, the interns said, as did the DOL.
Hearst argued that the trial court should use a “balancing of the benefits” test, which considers the totality of the circumstances when assessing the relationship between a company and interns, and while Judge Baer didn't completely disregard the six-part DOL test, he said the totality-of-circumstances test represented “the prevailing view,” the DOL said in Friday's brief.
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The Hearst suit was filed in February 2012 by Xuedan Wang, who says she regularly worked more than 40 hours per week as an unpaid intern for several months at Harper's Bazaar magazine.
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In addition to the DOL's recent filing in the Hearst case, the closely watched intern appeals at the Second Circuit have drawn amicus input from numerous groups, including the National Employment Lawyers Association, the American Association of State Colleges and Universities, and the U.S. Chamber of Commerce.
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Outten & Golden LLP's Juno Turner, an attorney for the interns in both cases, said they were glad to have the DOL's support.
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The cases are Glatt v. Fox Searchlight Pictures Inc., case number 13-4478; and Wang v. The Hearst Corp., case number 13-4480, both in the U.S. Court of Appeals for the Second Circuit.