Co-authored by Rob Whitman, Adam Smiley, and Nadia Bandukda
A federal judge has sided with Gawker in the media company’s legal battle with a former unpaid intern who claimed that he should have been compensated as an employee. On March 29th, Judge Alison Nathan in the Southern District of New York granted Gawker’s motion for summary judgment and found that the Second Circuit’s “primary beneficiary” test tipped in favor of Gawker, meaning that the plaintiff, Aulistar Mark (“Mark”), was a “bona fide” intern not entitled to compensation under the FLSA. The Court also denied Mark’s motion for class certification as moot.
Mark interned with the company’s videogame blog, and assisted in “taking photos and videos, editing images, researching, writing and editing posts and articles, and conducting interviews” for the blog’s editors and writers. The blog published 34 articles written by Mark.
The court concluded that Mark, and not Gawker, was the primary beneficiary of his internship. Several factors were key to this decision:
- Mark received academic credit and his internship was tied to a formal education program, in that his university required that he take a class to accompany his internship, write several papers about the internship, submit a “learning agreement” regarding the internship, and that his intern supervisor submit evaluations of Mark’s performance.
- Mark’s editor at the blog provided mentorship and various opportunities to learn journalism skills that were not offered to full-time employees, who were expected to already possess such skills. In particular, the editor worked with Mark over many weeks editing a large-scale reported story that was the “capstone” of his internship. Mark even admitted that his relationship with this editor was similar to his relationship with his journalism school editor.
- While Mark’s research and written work had the potential to displace paid employees for “part of the time,” there was no evidence that Gawker “in fact used interns to displace paid employees, that interns had skills comparable to…expected employees, or that [without interns], Gawker would have hired more employees.”
In reaching its conclusion, the court focused on “the benefits to the student while still considering whether the manner in which the employer implements the internship program takes unfair advantage or is otherwise abusive towards the intern.” It found that Gawker did not take unfair advantage of Mark, and that Mark’s work benefitted him as an intern “as least as much” as it did Gawker by giving him the opportunity to practice the job he was training for and gave him published articles for his portfolio.
One other notable aspect of the decision: the court declined to exercise supplemental jurisdiction over another intern’s claims under the New York Labor Law and dismissed these allegations without prejudice. This leaves open the possibility that a New York State court would apply a standard other than Glatt (e.g. the NYSDOL 11-factor test), although we think state courts will give Glatt significant if not conclusive deference.