"To mix a metaphor, while half a loaf is better than none, plaintiffs' argument here just doesn't cut the mustard."
While we don't know what Judge Harold Baer meant by that, nor why he made references to "meat on the Walling bones" and "make the cheese more binding" (somebody skipped lunch), we do know one thing: class action law in a post-Dukes and post-Comcast world is a dying field.
The Hearst Magazine unpaid interns, led by plaintiff Xuedan Wang, who were seeking minimum wage back-pay for more than 3,000 students were brought on to work at the magazine, without pay, in the name of "valuable experience."
The plaintiffs were seeking partial summary judgment on the issue of whether they were employees under Fair Labor Standards Act. The Department of Labor issued a six-factor test for legal unpaid internships, based off of the Walling precedent. The test considers six factors, none dispositive:
(1) The internship … is similar to training which would be given in an educational environment;
(2) The internship experience is for the benefit of the intern;
(3) The intern does not displace regular employees, but works under close supervision of existing staff;
(4) The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
(5) The intern is not necessarily entitled to a job at the conclusion of the internship; and
(6) The employer and the intern understand that the intern is not entitled to wages…
From the facts alleged, it seems like they’d have a pretty good case: they worked harder than Anne Hathaway in the Devil Wears Prada. Some of their duties included running errands, answering correspondence from magazine readers, and organizing accessory closets at Cosmopolitan magazine.
There were even internal Hearst emails that instructed staff to replace paid messengers with unpaid interns.
Alas, because the students did sit through occasional educational lectures and knew the positions were unpaid, there was enough of a factual dispute to hand it over to a jury.
Class Certification: Numerosity, Typicality, Adequacy, and … Commonality?
Numerosity? 3,000+ interns (check).
Typicality? All class members were unpaid interns, claim they should have been employees (check).
Adequacy? Plaintiff represents class interests, attorneys are competent (check).
Commonality? Not so much. Citing the strict commonality standards of Dukes, and predominance prerequisites of Comcast, the court held that, because Hearst had no uniform unpaid internship policy (each magazine handled things individually), commonality fails. Duties, education, and benefits for both sides varied depending on the magazine.
Lessons for Corporations
exploiting unpaid labor educating youth? The key is this: don’t streamline anything. Hearst won the issue of commonality because each magazine, and each internship within the magazine, had its own duties, benefits, and education.
No overall policies mean no commonality, which means no class action. Sure, you can be sued individually, but what lawyer is going to take a single plaintiff minimum wage case?
- Wang v. Hearst Corporation (Opinion and Order, District Court S.D. New York)
- Interns’ case against Hearst falters in wake of Dukes, Comcast (Reuters)
- Conde Nast Intern Reforms an ‘Empty Gesture’? (FindLaw’s In House Blog)