New York Extends Antidiscrimination Protection to Unpaid Interns

Author: Beth P. Zoller, XpertHR Legal Editor

August 7, 2014

New York has enacted a new law protecting unpaid interns from discrimination, harassment and retaliation in the workplace. Based on this development, New York employers should recognize that they may be liable for discrimination, harassment and retaliation against interns. Accordingly, they should modify their workplace policies and procedures to cover unpaid interns and ensure them equal opportunity protections to the same extent as paid employees. Further, employers should notify all supervisors and those with hiring responsibilities of the new law's requirements.

The new law, which was signed by Gov. Andrew Cuomo on July 22, amends the New York State Human Rights Law (NYSHRL) and prohibits an employer from discriminating or retaliating against or harassing an unpaid intern based on age, creed, race, color, sex, sexual orientation, national origin, marital status, disability, military status, domestic violence victim status, arrest record, conviction record and predisposing genetic characteristics. It also prohibits an employer from expressing any discriminatory limitations or specifications based on a protected category when advertising for an internship. Additionally, an employer may not compel a pregnant intern to take a leave of absence, unless the pregnancy prevents her from performing the activities involved in her job or occupation in a reasonable manner.

Under the new law, an intern is an individual who performs work for an employer for the purpose of training and:

  • The employer does not commit to hire the individual at the end of the training period;
  • The individual and the employer agree that the individual is not entitled to wages for the work performed; and
  • The work performed:
  • Provides or supplements training that could enhance the individual's employability;
  • Provides experience that benefits the individual;
  • Does not displace regular employees; and
  • Is closely supervised by existing staff.

In signing this legislation, New York State joins New York City, Oregon and the District of Columbia in extending antidiscrimination protections to interns. Similar to New York City, New York state lawmakers passed this law in direct response to a federal court's 2013 ruling that the New York City Human Rights Law (NYCHRL) and the NYSHRL did not apply to unpaid interns because they did not receive compensation.

With the push toward granting unpaid interns increased workplace protections, employers should stay on top of the legal developments in this area and make sure that their workplace policies comply. Further, employers should reevaluate the pros and cons of having an unpaid internship program in light of the increased risk of a discrimination claim.