senate Bill S5951A

Provides certain civil rights protections for interns

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 11 / Oct / 2013
    • REFERRED TO RULES
  • 08 / Jan / 2014
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 06 / Feb / 2014
    • AMEND AND RECOMMIT TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 06 / Feb / 2014
    • PRINT NUMBER 5951A
  • 02 / Jun / 2014
    • 1ST REPORT CAL.1093
  • 03 / Jun / 2014
    • 2ND REPORT CAL.
  • 09 / Jun / 2014
    • ADVANCED TO THIRD READING
  • 18 / Jun / 2014
    • SUBSTITUTED BY A8201A

Summary

Provides certain civil rights protections for interns.

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Bill Details

See Assembly Version of this Bill:
A8201A
Versions:
S5951
S5951A
Legislative Cycle:
2013-2014
Law Section:
Executive Law
Laws Affected:
Add §296-c, amd §292, Exec L

Votes

7
1
7
Aye
1
Nay
1
aye with reservations
0
absent
0
excused
0
abstained
show Investigations and Government Operations committee vote details

Sponsor 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 296-
c(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

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5951--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            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,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11709-06-4

S. 5951--A                          2

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.

S. 5951--A                          3

  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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