Posts Tagged ‘ Harper’s Bazaar ’

Judge To Hearst Interns: Sorry, Sue for Yourself; No Class Action Lawsuit Here

May 14th, 2013. By AbiK

Was this any surprise? The one-time Hearst intern, Xuedan Wang, aka Diana Wang—who sued Hearst (Xuedan Wang v. The Hearst Corporation, U.S. District Court for the Southern District of New York, No. 12cv793) claiming that she and other interns at the various Hearst magazines were unfairly misclassified—has not been granted the class action lawsuit status she was after.

Wang’s initial lawsuit claimed that her unpaid internship at Harper’s Bazaar violated the federal Fair Labor Standards Act (FLSA) and New York state labor laws. (For the record, the U.S. Labor Department states that unpaid internships must be educational and “for the benefit of the intern.”)

Now, forget about the fact that many of us have done internships and we completely “got” what we willingly signed up for: on-the-job training for zero (or very low) pay and a nice addition to a resume. What Wang’s complaint stated was that, “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work.” Earth to Wang et al, internships at top magazines in NYC—as well as at many other places—have always been about entry-level tasks being performed by unpaid wannabes. It’s a tit-for-tat arrangement—the company gets some help, the intern scores experience and a credential. No one promised glamour and prestige—or any pay.

So somewhere along the path from Baby Boomer, to Gen X, to Gen Y/Millennials, it would appear the definition of “intern” has changed. Here are some (non-legal) definitions from Merriam-Webster and TheFreeDictionary.com, respectively, as the word relates to labor:

• an advanced student or graduate usually in a professional field (as medicine or teaching) gaining supervised practical experience (as in a hospital or classroom)
• someone, as a student or recent graduate, working as an apprentice or trainee to gain practical experience in an occupation

Seems an intern gets “practical experience”. No mention of a paycheck. And, might I add, if a paycheck were what Wang et al were after, here’s a tip: apply for a job. (fyi, here’s Merriam’s definition of “job”: “a piece of work; especially : a small miscellaneous piece of work undertaken on order at a stated rate” —note the words “stated rate”).

But, of course, why pay your dues in a highly competitive industry when you can try to file a class action lawsuit because, unlike the millions of interns who preceded you, YOU are special? Btw, if that sounds jaded or sarcastic—note that according to a Facebook page dedicated to Wang’s intern class action lawsuit attempt, she “worked seven unpaid internships before she got fed up.” SEVEN folks. At that rate, it’s kind of hard to point the finger at anyone else but Wang—and it starts to look like maybe she needed some career coaching.

If you don’t think living a fashion intern’s “Groundhog Day” x7 reveals enough about Wang’s (insert “misguided”?) approach to breaking into the glam world of haute couture and ready-to-wear, check out these Wang quotes from a NY Magazine article, “The Norma Rae of Fashion Interns”, that ran when the class action was initially filed (apologies to the real Norma Rae, Crystal Lee Sutton)—the quotes hint at a sad naivete about not only working in fashion, but also about work in general:

“I’d been dreaming of standing in their offices for fifteen years,” she says. “I was so ready to give everything I had. I couldn’t imagine that the dream of mine was becoming real.”

“This was going to be my only ticket to the industry,” she says. “I didn’t have unlimited resources. I was going to make the time worthwhile. I was going to be remembered by people.”

“I was so uncomfortable and stressed out,” she says. “It was hard to get people to understand how an intern could be stressed out, but the editors constantly stressed that this was a real job and if this went wrong or if that happened, it would be my fault.

Kind of makes you think of that sad sack who’s putting all his hopes and dreams on that one Powerball lottery ticket…sure you gotta be in it to win it, but you also have to have a realistic view of your chances.

Regardless of all that, this is indeed, about a class action lawsuit and as such, it needed to go through the rigorous review for certification. And that means that from a legal perspective, in order for there to be a “class” established for the lawsuit, certain requirements need to be met: numerosity, commonality, typicality and adequacy of representation.

According to Reuters, the judge who presided over the employment misclassification filing, U.S. District Judge Harold Baer, found that the “former interns failed to meet the bar set out in the Supreme Court’s landmark 2011 case Dukes v. Wal-Mart to constitute a class action. Specifically, Baer found that the interns did not meet the standards of commonality and predominance needed to be considered a class.”

How so?

Baer explained in his decision, “Here, while a close question, the commonality requirement is not satisfied because plaintiffs cannot show anything more than a uniform policy of unpaid internship.” That included the fact that the interns in the proposed class worked for different magazines and performed different tasks. Reuters reports that Baer also denied the plaintiffs’ motion for summary judgment on whether they met the definition of an employee.

So what now?

Well, Wang et al can now try to sue Hearst individually—not as a class. Though it’s unlikely that many will choose to do so as the interns were seeking minimum wage—and the cost to litigate such a case for a net return of minimum wage minus attorney fees is probably just not worth going to the mat for…

Tags: Class Action Lawsuit, Diana Wang, Dukes v Wal-Mart, Employment, Harper's Bazaar, Hearst Intern Class Action, U.S. District Judge Harold Baer, Wagte & Hour
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