Bill S5951A-2013

Provides certain civil rights protections for interns

Provides certain civil rights protections for interns.

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  • Feb 6, 2014: PRINT NUMBER 5951A
  • Feb 6, 2014: AMEND AND RECOMMIT TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • Jan 8, 2014: REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • Oct 11, 2013: REFERRED TO RULES

Memo

BILL NUMBER:S5951A

TITLE OF BILL: An act to amend the executive law, in relation to providing certain civil rights protections for interns

PURPOSE OR GENERAL IDEA OF BILL:

This bill would provide unpaid interns the same civil rights protections as paid interns.

SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill adds a new section 296-c to the Executive Law, entitled "Unlawful discriminatory practices relating to interns." The new section defines and then establishes anti-discrimination protections for interns. Based on a list of enumerated protected classes, employers may not discriminate against interns or prospective interns with respect to: hiring, discharge, or terms or conditions of employment, acting on applications for internships; advertising, application forms or application inquiries; retaliation for opposing prohibited practices; and forced pregnancy leave. The new section also prohibits sexual harassment of interns by employers, codifying both the quid pro quo and hostile environment tests for sexual harassment. Section 2 amends Executive Law section 292(4) to include the provisions of new section 296-c in the definition of "unlawful discriminatory practice." Section 3 is the effective date.

The amendments in the A-print are made to better conform the bill, modeled on Oregon's interns protections, to New York law and also to strengthen protections for interns. The following specific changes have been made,. The definition of employer in new Executive Law 296-c (1)(b) has been deleted, as there is already a definition of employer in Executive Law section 292. The word religion has been deleted throughout, as that word is not used in the list of protected classes in Executive Law sections 296 and 296-a; in those sections, religion is subsumed under the word creed. The word religion is used in Executive Law section 296-b, but it is in a shortened list of protected classes that does not include the word creed. The word "individual' throughout has been replaced by the word "intern." The phrase "in writing" has been deleted from new section 296-c(1)(b), in the definition of intern, to protect interns who have an oral, rather than written, agreement that they will not be paid. Similarly the phrase "given in an educational environment" has been deleted from what is now new section 296-c(1)(c)(1) to ensure that all interns are protected, including those not part of a formal academic program. The language previously contained in what had been new section 296c(1)(a)(3)(E) in the original print has been deleted as it described a factual circumstance that was not intended to preclude the existence of an internship within the scope of the new section, but that does not necessarily exist in all internships, and therefore it should not have been listed as one of the required elements in the definition of intern. Also, Executive Law 292(4) has been amended to include the provisions of new section 296-c in the definition of "unlawful discriminatory practice."

JUSTIFICATION:

Case law in this state has long held that unpaid volunteers are not protected by Executive Law section 296. Sweeney v. Board of Education of Rocky Point. UFSD, 491 NYS2d 455 (2d Dept. 1985) (mutually beneficial economic substance, i.e., compensation, is touchstone of employer-employee relationship). The Second Circuit applied that case law in dismissing the claims of a female college student who was required to perform field work as one of the requirements of her major. Her college arranged for her to be placed in an unpaid internship at. Rockland Psychiatric Center. While she was working there, one of the doctors allegedly began to refer to her as Miss Sexual Harassment, told her she should participate in an orgy, and suggested that she remove her clothing before meeting with him. Her federal Title VII claim was dismissed because she was an unpaid intern, and therefore, the court held, not an employee protected by Title VII. O'Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). More recently, an unpaid intern, Lihuan Wang, had alleged that her boss at Phoenix Television's New York bureau had groped her and tried to kiss her. Citing O'Connor v. Davis, the U.S. District Court for the Southern District of New York dismissed that claim, deciding that only paid workers are covered by the New York state and city human rights laws. Wang v. Phoenix Satellite Television, 120 Fair Empl. Prac. Cas. (BNA) 1618 (SDNY 2013). This bill is intended to override that case law with respect to unpaid interns who fall within the scope of the new Executive Law section 296-c that the bill would add to the Human Rights Law.

Both Washington, D.C. and Oregon have expanded their discrimination and harassment protections to interns. This bill mirrors the Oregon model, with the changes noted above that have been made in the A-print, to provide unpaid interns the same important. and necessary protections against discrimination as paid employees. While it made sense 30 years ago for courts to use a dictionary definition of employer to conclude that unpaid volunteers (or interns) were not covered by the NYS Human Rights Law, in today's economy the failure to protect interns - whether paid or unpaid - against sexual harassment and other forms of discrimination no longer makes sense, is bad social policy, and is inconsistent with the overarching purpose of the Human Rights Law to "assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life ... and to eliminate and prevent discrimination. Executive Law section 290. Young people seeking employment in an economy that still has not recovered from the worst recession since the Great Depression are under extreme pressure to build up resumes and work references. Increasingly, they turn to unpaid internships to do so. Interns, to an even greater extent than employees, are easy victims of sexual harassment as the relationship between employer and intern is the classic example of the power imbalance that is at the heart of sexual harassment. It is time for the State of New York to extend protection against sexual harassment and other forms of discrimination to these vulnerable young people.

PRIOR LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None to the state.

EFFECTIVE DATE:

Immediately


Text

STATE OF NEW YORK ________________________________________________________________________ 5951--A 2013-2014 Regular Sessions IN SENATE October 11, 2013 ___________
Introduced by Sens. KRUEGER, AVELLA, DILAN, GIPSON, HOYLMAN, KENNEDY, LATIMER, PERALTA, SERRANO -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- recommitted to the Committee on Investigations and Government Operations in accord- ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the executive law, in relation to providing certain civil rights protections for interns THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The executive law is amended by adding a new section 296-c to read as follows: S 296-C. UNLAWFUL DISCRIMINATORY PRACTICES RELATING TO INTERNS. 1. AS USED IN THIS SECTION, "INTERN" MEANS A PERSON WHO PERFORMS WORK FOR AN EMPLOYER FOR THE PURPOSE OF TRAINING UNDER THE FOLLOWING CIRCUMSTANCES: A. THE EMPLOYER IS NOT COMMITTED TO HIRE THE PERSON PERFORMING THE WORK AT THE CONCLUSION OF THE TRAINING PERIOD; B. THE EMPLOYER AND THE PERSON PERFORMING THE WORK AGREE THAT THE PERSON PERFORMING THE WORK IS NOT ENTITLED TO WAGES FOR THE WORK PERFORMED; AND C. THE WORK PERFORMED: (1) PROVIDES OR SUPPLEMENTS TRAINING THAT MAY ENHANCE THE EMPLOYABILI- TY OF THE INTERN; (2) PROVIDES EXPERIENCE FOR THE BENEFIT OF THE PERSON PERFORMING THE WORK; (3) DOES NOT DISPLACE REGULAR EMPLOYEES; AND (4) IS PERFORMED UNDER THE CLOSE SUPERVISION OF EXISTING STAFF. 2. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER TO: A. REFUSE TO HIRE OR EMPLOY OR TO BAR OR TO DISCHARGE FROM INTERNSHIP AN INTERN OR TO DISCRIMINATE AGAINST SUCH INTERN IN TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT AS AN INTERN BECAUSE OF THE INTERN'S AGE, RACE,
CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIENTATION, MILITARY STATUS, SEX, DISABILITY, PREDISPOSING GENETIC CHARACTERISTICS, MARITAL STATUS, OR DOMESTIC VIOLENCE VICTIM STATUS; B. DISCRIMINATE AGAINST AN INTERN IN RECEIVING, CLASSIFYING, DISPOSING OR OTHERWISE ACTING UPON APPLICATIONS FOR INTERNSHIPS BECAUSE OF THE INTERN'S AGE, RACE, CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIENTATION, MILITARY STATUS, SEX, DISABILITY, PREDISPOSING GENETIC CHARACTERISTICS, MARITAL STATUS, OR DOMESTIC VIOLENCE VICTIM STATUS; C. PRINT OR CIRCULATE OR CAUSE TO BE PRINTED OR CIRCULATED ANY STATE- MENT, ADVERTISEMENT OR PUBLICATION, OR TO USE ANY FORM OF APPLICATION FOR EMPLOYMENT AS AN INTERN OR TO MAKE ANY INQUIRY IN CONNECTION WITH PROSPECTIVE EMPLOYMENT, WHICH EXPRESSES DIRECTLY OR INDIRECTLY, ANY LIMITATION, SPECIFICATION OR DISCRIMINATION AS TO AGE, RACE, CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIENTATION, MILITARY STATUS, SEX, DISA- BILITY, PREDISPOSING GENETIC CHARACTERISTICS, MARITAL STATUS OR DOMESTIC VIOLENCE VICTIM STATUS, OR ANY INTENT TO MAKE ANY SUCH LIMITATION, SPEC- IFICATION OR DISCRIMINATION, UNLESS BASED UPON A BONA FIDE OCCUPATIONAL QUALIFICATION; PROVIDED, HOWEVER, THAT NEITHER THIS PARAGRAPH NOR ANY PROVISION OF THIS CHAPTER OR OTHER LAW SHALL BE CONSTRUED TO PROHIBIT THE DEPARTMENT OF CIVIL SERVICE OR THE DEPARTMENT OF PERSONNEL OF ANY CITY CONTAINING MORE THAN ONE COUNTY FROM REQUESTING INFORMATION FROM APPLICANTS FOR CIVIL SERVICE INTERNSHIPS OR EXAMINATIONS CONCERNING ANY OF THE AFOREMENTIONED CHARACTERISTICS, OTHER THAN SEXUAL ORIENTATION, FOR THE PURPOSE OF CONDUCTING STUDIES TO IDENTIFY AND RESOLVE POSSIBLE PROBLEMS IN RECRUITMENT AND TESTING OF MEMBERS OF MINORITY GROUPS TO INSURE THE FAIREST POSSIBLE AND EQUAL OPPORTUNITIES FOR EMPLOYMENT IN THE CIVIL SERVICE FOR ALL PERSONS, REGARDLESS OF AGE, RACE, CREED, COLOR, NATIONAL ORIGIN, SEXUAL ORIENTATION, MILITARY STATUS, SEX, DISA- BILITY, PREDISPOSING GENETIC CHARACTERISTICS, MARITAL STATUS OR DOMESTIC VIOLENCE VICTIM STATUS; D. TO DISCHARGE, EXPEL OR OTHERWISE DISCRIMINATE AGAINST ANY PERSON BECAUSE HE OR SHE HAS OPPOSED ANY PRACTICES FORBIDDEN UNDER THIS ARTICLE OR BECAUSE HE OR SHE HAS FILED A COMPLAINT, TESTIFIED OR ASSISTED IN ANY PROCEEDING UNDER THIS ARTICLE; OR E. TO COMPEL AN INTERN WHO IS PREGNANT TO TAKE A LEAVE OF ABSENCE, UNLESS THE INTERN IS PREVENTED BY SUCH PREGNANCY FROM PERFORMING THE ACTIVITIES INVOLVED IN THE JOB OR OCCUPATION IN A REASONABLE MANNER. 3. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER TO: A. ENGAGE IN UNWELCOME SEXUAL ADVANCES, REQUESTS FOR SEXUAL FAVORS, OR OTHER VERBAL OR PHYSICAL CONDUCT OF A SEXUAL NATURE TO AN INTERN WHEN: (1) SUBMISSION TO SUCH CONDUCT IS MADE EITHER EXPLICITLY OR IMPLICITLY A TERM OR CONDITION OF THE INTERN'S EMPLOYMENT; (2) SUBMISSION TO OR REJECTION OF SUCH CONDUCT BY THE INTERN IS USED AS THE BASIS FOR EMPLOYMENT DECISIONS AFFECTING SUCH INTERN; OR (3) SUCH CONDUCT HAS THE PURPOSE OR EFFECT OF UNREASONABLY INTERFERING WITH THE INTERN'S WORK PERFORMANCE BY CREATING AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRONMENT; OR B. SUBJECT AN INTERN TO UNWELCOME HARASSMENT BASED ON AGE, SEX, RACE, CREED, COLOR, SEXUAL ORIENTATION, MILITARY STATUS, DISABILITY, PREDIS- POSING GENETIC CHARACTERISTICS, MARITAL STATUS, DOMESTIC VIOLENCE VICTIM STATUS, OR NATIONAL ORIGIN, WHERE SUCH HARASSMENT HAS THE PURPOSE OR EFFECT OF UNREASONABLY INTERFERING WITH THE INTERN'S WORK PERFORMANCE BY CREATING AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRONMENT. 4. NOTHING IN THIS SECTION SHALL AFFECT ANY RESTRICTIONS UPON THE ACTIVITIES OF PERSONS LICENSED BY THE STATE LIQUOR AUTHORITY WITH RESPECT TO PERSONS UNDER TWENTY-ONE YEARS OF AGE.
5. NOTHING IN THIS SECTION SHALL CREATE AN EMPLOYMENT RELATIONSHIP BETWEEN AN EMPLOYER AND AN INTERN FOR THE PURPOSES OF ARTICLES SIX, SEVEN, EIGHTEEN OR NINETEEN OF THE LABOR LAW. S 2. Subdivision 4 of section 292 of the executive law, as amended by chapter 173 of the laws of 1974, is amended to read as follows: 4. The term "unlawful discriminatory practice" includes only those practices specified in sections two hundred ninety-six [and], two hundred ninety-six-a AND TWO HUNDRED NINETY-SIX-C of this article. S 3. This act shall take effect immediately.

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