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No Prank! Howard Stern Sued for Not Paying Interns

A former intern of The Howard Stern Show has sued Sirius XM radio and the radio personality’s broadcaster claiming that their unpaid intern policy violates state and federal labor laws.

In her complaint, Melissa Tierney claimed she worked at Howard Stern’s show for five months in 2011 where she spent between 24-36 hours per week running errands, ordering and delivering food and reviewing news clips. Due to the fact that she was not performing job duties consistent with the nature of her internship, Tierney claims (as she was not paid) that her employer violated the Fair Labor Standards Act (“FLSA”) and the New York labor law. Specifically, Tierney alleged that defendants violated the FLSA by (1) failing to pay all earned wages; (2) misclassifying plaintiff and other members as exempt from minimum wage requirement; and (3) failing to provide the statutory minimum hourly wage for all hours worked pursuant to 29 U.S.C. § 206.

The FLSA defines the term “employ” as to “suffer or permit to work.” While initially this term would include interns, the U.S. Supreme Court found in Walling v. Portland Terminal Co., that someone who works without promise or expectation of payment, but solely for personal purpose or pleasure, does not fall within the scope of the FLSA. The Court further held that interns are not classified as employees under the FLSA and are thus exempt from the FLSA wage and hour laws.

Wallin, though, still left employers with much ambiguity as to who qualifies as an intern. As a result, the Wage and Hour Division (“WHD”), of the Department of Labor (“DOL”), issued Fact Sheet #71, in April 2010. For an individual to be considered an intern, the following criteria must be satisfied:

  1. The intern must receive training that is similar to what an educational environment would offer;
  2. The intern must benefit from the internship;
  3. The intern must not displace regular employees, but should work closely with staff;
  4. The employer must not derive “immediate advantage” because of the intern’s work;
  5. The intern must not be entitled to a job afterward; and
  6. Both the intern and the employer must agree the intern won’t be paid.

If all of the six elements are met, then the internship may be unpaid. Unpaid internships are required by law to meet these Labor Department’s guidelines. Otherwise, the employer bears the risk of having the intern considered a “covered employee”, under the FLSA, subject to the overtime premiums and the minimum wage requirements. Failure to abide with the DOL Fact Sheet #71 may result in prosecution for labor violations. In addition, employers who violate minimum wage standards of FSLA are liable for compensatory damages for unpaid wages and an equal amount for liquidated damages. However, State and local government agencies and non-profit organizations are exempt. This is because individuals at these types of organizations are considered “volunteers.”

Unpaid interns lawsuits have been all over the news recently. In the last two years, dozens of lawsuits against big name companies began to make headlines. In February of 2012, Xuedaen Wang, the head of accessories intern, filed a lawsuit against Hearst Corporation. Wange alleged that the publisher violated Federal and New York State wage and hour laws by failing to pay its interns minimum wage and overtime pay.

Wang filed her lawsuit after a similar lawsuit was filed against Fox Searchlight Pictures. In that case, approximately 100 interns who worked on the Black Swan movie argued that they should be paid wages since most of their work was not educational and instead administrative. These two lawsuits, among others, gained national media coverage. It was one of the first times well-known and respected companies were being sued for falsely categorizing an employee as an intern.

With the increased awareness of internship lawsuits, there are some significant advances occurring for interns. Just recently, New York City Mayor Bill de Blasio signed into law an act that will grant interns of all the rights afforded to employees under the New York City Human Rights Law. In addition, unpaid interns now have some protection from workplace discrimination and harassment.

We will keep you apprised of all developments in this manner. If you believe you have been the victim of unpaid intern labor please contact our office at (212) 323-6980 or at



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