seyfarth.jpgCo-authored by Rob Whitman and Adam Smiley

Two court filings this week show that when one internship lawsuit goes down, another one quickly rises to take its place.

In one case, a judge in the Southern District of New York on May 8 denied class certification (See here) for a group of magazine interns, holding that the interns failed to meet the commonality and predominance requirements of Rule 23.  But just two days earlier, a similar case was filed (See here) in the Western District of Pennsylvania, alleging that an Arena Football League team violated the FLSA and state law by treating the plaintiffs as unpaid interns.

In the New York case, former unpaid interns for The Hearst Corporation claimed that they should have been paid for work performed for about 20 magazines.  Judge Harold Baer, Jr. denied class certification (and denied summary judgment) for the interns, relying largely on Wal-Mart Stores, Inc. v. Dukes (See Dukes discussion here) and holding that the interns could not establish the key elements of “commonality” and “predominance.”

In siding with Hearst, Judge Baer found that the commonality requirement “is not satisfied because Plaintiffs cannot show anything more than a uniform policy of unpaid internships” and that no “significant proof” existed “abridging the gap between an individual and a class claim.”  Even though the plaintiffs raised questions applicable to the class as a whole, Judge Baer held that, under Dukes, he must also “consider dissimilarities” within the proposed class.  While the plaintiffs urged the court to consider the nature of the work performed by interns in general, Judge Baer ultimately found significant variation in their duties, stressing the “glaring problem” of not having any common proof to “determine the very nature of interns’ work.”

As to predominance, the court held that “there is no uniform policy among the magazines with respect to the contents of the internship, including…duties, training, and supervision,” such that an analysis of the internship program would be individualized.

Meanwhile, the sports world continues to be a magnet for unpaid internship lawsuits.  In January, this blog reported on (See here) a class and collective action filed by an intern for the Hamilton College Athletic Department.  On May 6, 2013, a former intern for the Pittsburgh Power, an Arena League team, also sued, claiming that he and other Power interns worked at least 20 hours per week, and sometimes more than 40, without compensation.  (It was perhaps a sign of things to come when the Power lost earlier this week to a team called the Predators.)  Apparently seeking to alert the court to a brewing trend, the plaintiff cited in his complaint a recent New York Times article, which stated that “unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them.” 

Similar to prior internship lawsuits, the plaintiff described his duties as attending meetings and strategy sessions, planning and organizing marketing events, taking photographs, attending games, and uploading and editing photographs.  The interns, he alleged, did not receive any education credit for the work performed.

Stay tuned for developments as the Power plays defense against the former interns.  Meanwhile, although the denial of certification in the Hearst case may comfort employers utilizing unpaid internship programs, complacency should not set in.  The fact that the internship program covered 20 different magazines and lacked a cohesive internal structure likely tipped the scales in favor of denial.  As the Power lawsuit shows, the plaintiffs’ bar continues to aggressively pursue these claims, and unpaid internship programs with more common threads may ultimately survive the certification process.