A08201 Summary:

COSPNSRSepulveda, Englebright, Benedetto, Jaffee, Mosley, Skoufis, Kearns, Duprey, Montesano, Graf, Raia, Colton, Otis, Zebrowski, Peoples-Stokes, Gunther, Scarborough, Mayer, Dinowitz, Bronson, Cahill, Gottfried, Goodell, Steck, Millman, Corwin, Borelli, Brook-Krasny, Schimel, Lifton, Wright, Ortiz
MLTSPNSRAbbate, Barclay, Brennan, Camara, Ceretto, Cook, Crouch, Davila, DenDekker, Farrell, Giglio, Glick, Lalor, Markey, McDonough, McLaughlin, Nolan, Perry, Ra, Rivera, Robinson, Sweeney, Weisenberg
Add S296-c, amd S292, Exec L
Provides certain civil rights protections for interns.
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A08201 Actions:

10/24/2013referred to governmental operations
01/08/2014referred to governmental operations
02/05/2014amend and recommit to governmental operations
02/05/2014print number 8201a
02/11/2014reported referred to codes
06/12/2014reported referred to rules
06/16/2014rules report cal.271
06/16/2014ordered to third reading rules cal.271
06/16/2014passed assembly
06/16/2014delivered to senate
06/18/2014SUBSTITUTED FOR S5951A
06/18/20143RD READING CAL.1093
07/11/2014delivered to governor
07/22/2014signed chap.97
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A08201 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8201A       REVISED MEMO 04/23/2014
SPONSOR: O'Donnell (MS)
  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 intern and then establishes anti-discrimination protections for interns. Based on a list of enumerated protected class- es, 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, appli- cation forms or application inquiries; retaliation for opposing prohib- ited practices; and forced pregnancy leave. The new section also prohib- its 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 Execu- tive 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 discrimi- natory 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-em- ployee 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 cloth- ing 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. DAVISOFF, 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 discrimi- nation 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.
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A08201 Text:

                STATE OF NEW YORK
                               2013-2014 Regular Sessions
                   IN ASSEMBLY
                                    October 24, 2013
        Introduced  by  M.  of  A. O'DONNELL, SEPULVEDA, ENGLEBRIGHT, BENEDETTO,
          Multi-Sponsored  by -- M. of A. ABBATE, BARCLAY, GLICK, McDONOUGH, RA,
          SWEENEY, WEISENBERG -- read once and  referred  to  the  Committee  on
          Governmental  Operations  --  recommitted  to the Committee on Govern-

          mental Operations in accordance  with  Assembly  Rule  3,  sec.  2  --
          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:
     1    Section 1. The executive law is amended by adding a new section  296-c
     2  to read as follows:
     3    §  296-c. Unlawful discriminatory practices relating to interns. 1. As
     4  used in this section, "Intern" means a person who performs work  for  an
     5  employer for the purpose of training under the following circumstances:
     6    a.  the  employer  is  not committed to hire the person performing the

     7  work at the conclusion of the training period;
     8    b. the employer and the person performing  the  work  agree  that  the
     9  person  performing  the  work  is  not  entitled  to  wages for the work
    10  performed; and
    11    c. the work performed:
    12    (1) provides or supplements training that may enhance the employabili-
    13  ty of the intern;
    14    (2) provides experience for the benefit of the person  performing  the
    15  work;
    16    (3) does not displace regular employees; and
    17    (4) is performed under the close supervision of existing staff.
    18    2. It shall be an unlawful discriminatory practice for an employer to:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets

                              [ ] is old law to be omitted.

        A. 8201--A                          2
     1    a.  refuse to hire or employ or to bar or to discharge from internship
     2  an intern or to discriminate against such intern in terms, conditions or
     3  privileges of employment as an intern because of the intern's age, race,
     4  creed, color, national origin, sexual orientation, military status, sex,
     5  disability,  predisposing  genetic  characteristics,  marital status, or
     6  domestic violence victim status;
     7    b. discriminate against an intern in receiving, classifying, disposing
     8  or otherwise acting upon applications for  internships  because  of  the

     9  intern's  age,  race, creed, color, national origin, sexual orientation,
    10  military status, sex, disability, predisposing genetic  characteristics,
    11  marital status, or domestic violence victim status;
    12    c.  print or circulate or cause to be printed or circulated any state-
    13  ment, advertisement or publication, or to use any  form  of  application
    14  for  employment  as  an intern or to make any inquiry in connection with
    15  prospective employment, which  expresses  directly  or  indirectly,  any
    16  limitation,  specification  or  discrimination  as  to age, race, creed,
    17  color, national origin, sexual orientation, military status, sex,  disa-
    18  bility, predisposing genetic characteristics, marital status or domestic

    19  violence victim status, or any intent to make any such limitation, spec-
    20  ification  or discrimination, unless based upon a bona fide occupational
    21  qualification; provided, however, that neither this  paragraph  nor  any
    22  provision  of  this  chapter or other law shall be construed to prohibit
    23  the department of civil service or the department of  personnel  of  any
    24  city  containing  more  than one county from requesting information from
    25  applicants for civil service internships or examinations concerning  any
    26  of  the  aforementioned  characteristics, other than sexual orientation,
    27  for the purpose of conducting studies to identify and  resolve  possible
    28  problems  in  recruitment  and  testing of members of minority groups to

    29  insure the fairest possible and equal opportunities  for  employment  in
    30  the  civil  service  for  all  persons,  regardless of age, race, creed,
    31  color, national origin, sexual orientation, military status, sex,  disa-
    32  bility, predisposing genetic characteristics, marital status or domestic
    33  violence victim status;
    34    d.  to  discharge,  expel or otherwise discriminate against any person
    35  because he or she has opposed any practices forbidden under this article
    36  or because he or she has filed a complaint, testified or assisted in any
    37  proceeding under this article; or
    38    e. to compel an intern who is pregnant to take  a  leave  of  absence,
    39  unless  the  intern  is  prevented by such pregnancy from performing the

    40  activities involved in the job or occupation in a reasonable manner.
    41    3. It shall be an unlawful discriminatory practice for an employer to:
    42    a. engage in unwelcome sexual advances, requests for sexual favors, or
    43  other verbal or physical conduct of a sexual nature to an intern when:
    44    (1) submission to such conduct is made either explicitly or implicitly
    45  a term or condition of the intern's employment;
    46    (2) submission to or rejection of such conduct by the intern  is  used
    47  as the basis for employment decisions affecting such intern; or
    48    (3) such conduct has the purpose or effect of unreasonably interfering
    49  with the intern's work performance by creating an intimidating, hostile,
    50  or offensive working environment; or

    51    b.  subject an intern to unwelcome harassment based on age, sex, race,
    52  creed, color, sexual orientation, military status,  disability,  predis-
    53  posing genetic characteristics, marital status, domestic violence victim
    54  status,  or  national  origin,  where such harassment has the purpose or
    55  effect of unreasonably interfering with the intern's work performance by
    56  creating an intimidating, hostile, or offensive working environment.

        A. 8201--A                          3
     1    4. Nothing in this section shall  affect  any  restrictions  upon  the
     2  activities  of  persons  licensed  by  the  state  liquor authority with
     3  respect to persons under twenty-one years of age.

     4    5.  Nothing  in  this  section shall create an employment relationship
     5  between an employer and an intern for  the  purposes  of  articles  six,
     6  seven, eighteen or nineteen of the labor law.
     7    §  2. Subdivision 4 of section 292 of the executive law, as amended by
     8  chapter 173 of the laws of 1974, is amended to read as follows:
     9    4. The term "unlawful discriminatory  practice"  includes  only  those
    10  practices  specified  in  sections  two  hundred  ninety-six  [and], two
    11  hundred ninety-six-a and two hundred ninety-six-c of this article.
    12    § 3. This act shall take effect immediately.
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