O’Jeda v. Viacom, Inc., 13 Civ. 5658 (S.D.N.Y. Apr. 4, 2014): As we covered in our June 2013 and September 2013 issues, a number of intern misclassification cases are currently before New York courts. While those cases are pending, the Southern District of New York recently conditionally certified a class of unpaid interns suing Viacom and its subsidiary MTV Networks. The O’Jeda court, while noting that the question was a “close one,” reasoned that despite variations in practices among the different departments, corporate entities, and locations where interns worked, the interns could have been subject to a common policy to replace paid workers with unpaid interns. Whether the class is ultimately certified likely depends on the outcome of a pair of appeals pending before the Second Circuit Court of Appeals in the Glatt v. Fox Searchlight Pictures Inc. and Wang v. Hearst Corp. cases, which ask the court to determine the proper standard for determining whether interns are employees or exempt trainees—namely, the U.S. Department of Labor’s six-factor test or a totality of the circumstances test, which looks at who is the primary beneficiary of the intern relationship. Opening briefs in those cases were filed in late March 2014, and a number of amicus briefs—including by the U.S. Department of Labor in support of the plaintiffs—also have been filed. A decision is expected sometime this year. Given the uncertainty and number of similar complaints filed within the past several years, employers with unpaid internship programs should carefully consider their compliance with wage and hour laws.

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