16‐3302‐cv
Wang v. The Hearst Corporation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2017
(Argued: September 11, 2017 Decided: December 8, 2017)
Docket No. 16‐3302
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XUEDAN WANG, on behalf of herself and all others similarly situated,
MATTHEW JORDAN WAGSTER, ERIN E. SPENCER, on behalf of herself and
all others similarly situated, ALEXANDRA RAPPAPORT, SARAH WHEELS,
Plaintiffs‐Appellants,
JESSICA ANN BEST, PAUL VANCE, COURTNEY HOLT, JANET E. GLAZIER,
REBECCA E. DIXON, ERIN D. SULLIVAN, CARLY ROCKWELL, DANA LYNN
VOGEL, ELIZABETH MANCINI, STEPHANIE LAUREN SKORKO, CAITLIN
LESZUK,
Plaintiffs,
‐ v.‐
The Hearst Corporation,
Defendant‐Appellee.
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Before: JACOBS, CABRANES and WESLEY, Circuit Judges.
Five participants in Hearst Corporation internship programs appeal from
the order of the United States District Court for the Southern District of New
York (Oetken, J.), dismissing on summary judgment their claims under the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et seq. Affirmed.
Rachel Bien (Juno Turner, on the brief),
Outten & Golden LLP, New York, New
York, for Plaintiffs‐Appellants.
Rachel Geman, Lieff Cabraser
Heimann & Bernstein, LLP, New York,
New York, for amici curaie American
Federation of State, County and Municipal
Employees; Communications Workers of
America, AFL‐CIO; Economic Policy
Institute; Intern Worker Alliance; National
Employment Lawyers Association;
National Employment Law Project; Service
Employees International Union; United
Food and Commercial Workers
International Union; Writers Guild of
America, East, AFL‐CIO; Professor Scott
Moss; Ross Perlin; and Professor David C.
Yamada, in support of
Plaintiffs‐Appellants.
Eve Burton, Jonathan R. Donnellan,
Kristina E. Findikyan, Jennifer D. Bishop,
Hearst Corporation, New York, New York,
office, for Defendant‐Appellee.
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DENNIS JACOBS, Circuit Judge:
Five participants in internship programs offered by defendant Hearst
Corporation (“Hearst”) sue for minimum wage under the Fair Labor Standards
Act (“FLSA”) and the New York Labor Law (“NYLL”). At issue is whether the
unpaid interns were “employees” of Hearst for the purposes of the FLSA under
Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2016). We affirm the
judgment of the United States District Court for the Southern District of New
York, Wang v. Hearst Corp., 203 F. Supp. 3d 344 (S.D.N.Y. 2016), for the reasons
stated in Judge Oetken’s thorough opinion.
I
The question is whether Hearst furnishes bona fide for‐credit internships
or whether it exploits student‐interns to avoid hiring and compensating entry‐
level employees. The factual record is voluminous and advances multiple
narratives, some of them contradictory; but the following essentials are
undisputed.
Hearst maintained dozens of internship programs with its various print
magazines. Each of five named appellants worked at one time as interns in one
of these programs. These internships were unpaid, carried no expectation of
eventual full‐time employment, and required intern candidates to receive prior
approval for college credit to participate. No intern alleges that Hearst promised
compensation or a future job.
The interns’ individual experiences varied, but there are groupings. Four
of the appellants–Alexandra Rappaport, Erin Spencer, Matthew Wagster, and
Sarah Wheels–were enrolled in college during their internships. Rappaport,
Spencer, and Wheels completed their internships during the summer between
academic years, and Wagster interned (with Esquire) during his fall semester.
Lead plaintiff Xuedan Wang interned for one semester between her graduation
from college and the start of her graduate program in the Fashion Marketing
program at Parsons School of Design. Each intern received prior approval for
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college credit, although not all of them ultimately received credit from their
degree‐awarding institution: Wang had received permission for continuing
education credit but ultimately did not pursue it, Wagster was denied credit from
his institution because his internship was not applicable to his major, and Wheels
received credit from a local community college.
Each student had an academic or aspiring professional connection to
fashion. Wang and Spencer studied fashion in college, and Spencer’s internship
satisfied a graduation requirement (the Fieldwork course) for his major;
Rappaport and Wagster were majoring in the social sciences, but hoped to break
into the fashion industry; Wheels was an English major who interned in the
editorial department of Cosmopolitan to advance her writing career. All of them
testified or declared that they performed a range of tasks related to their
professional pursuits in the Hearst internship programs, and gained valuable
knowledge and skills. See, e.g., J. App’x 148 (Rappaport gained knowledge
“vital” to a fashion career and accomplished her goal of receiving “a real‐life
experience”), id. at 748‐751 (Spencer had “a very valuable learning experience”),
id. at 775‐76 (Wang’s internship was a “rich and well‐rounded learning
experience” providing “unrivaled skills”).
At the same time, the interns share common complaints. They describe
many tasks in Hearst’s fashion closets as menial and repetitive. Several claim
that they did not receive close supervision or guidance and that the internships
offered little formal training‐‐in contrast to their academic experiences in school.
One common grievance was that the interns mastered most of their tasks within a
couple weeks, but did the same work for the duration of the internship.
In February 2012, lead plaintiff Xuedan Wang filed suit alleging that she
and a putative class of interns across Hearst’s magazine departments were
deprived of wages in violation of the FLSA and NYLL. Seven other interns opted
in after the district court granted the case collective certification. The district
court’s denial of plaintiffs’ motion for partial summary judgment was vacated in
this Court for reconsideration in light of Glatt v. Fox Searchlight Pictures, Inc.,
which was heard in tandem with Wang. Wang v. Hearst Corp., 617 F. App’x 35
(2d Cir. 2015) (summary order).
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Hearst moved for summary judgment against the six remaining plaintiffs
under the Glatt test. The district court granted the motion, and five plaintiffs
filed a timely appeal. We review de novo a district court’s grant of summary
judgment. Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008).
II
The FLSA defines “employee” by tautology: an “individual employed by
an employer.” 29 U.S.C. § 203(e)(1). The standard for “employee” is broad, but
the Supreme Court has long recognized that not every individual who performs a
service for an employer qualifies as an “employee” under the FLSA. See Walling
v. Portland Terminal Co., 330 U.S. 148, 149‐53 (1947). “[E]mployee” status
depends upon the “economic reality” of the relationship between the putative
employer and employee. Glatt, 811 F.3d at 534, 536.
Last year in Glatt, we recognized the “primary beneficiary” test as the way
to distinguish employees from bona fide interns. Id. at 536. To guide our
“flexible” analysis, we provided seven non‐exhaustive considerations specific to
the context of unpaid internships:
1. The extent to which the intern and the employer clearly understand that
there is no expectation of compensation. Any promise of compensation,
express or implied, suggests that the intern is an employee—and vice
versa;
2. The extent to which the internship provides training that would be
similar to that which would be given in an educational environment,
including the clinical and other hands‐on training provided by educational
institutions;
3. The extent to which the internship is tied to the internʹs formal education
program by integrated coursework or the receipt of academic credit;
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4. The extent to which the internship accommodates the internʹs academic
commitments by corresponding to the academic calendar;
5. The extent to which the internshipʹs duration is limited to the period in
which the internship provides the intern with beneficial learning;
6. The extent to which the internʹs work complements, rather than
displaces, the work of paid employees while providing significant
educational benefits to the intern;
7. The extent to which the intern and the employer understand that the
internship is conducted without entitlement to a paid job at the conclusion
of the internship.
Id. at 536‐37.
The court applies these considerations by weighing and balancing the
totality of the circumstances. Id. at 537; Barfield v. N.Y.C. Health & Hosps. Corp.,
537 F.3d 132, 141‐42 (2d Cir. 2008)(Employee status is a “flexible concept to be
determined on a case‐by‐case basis by review of the totality of the
circumstances.”). “No one factor is dispositive and every factor need not point in
the same direction for the court to conclude that the intern is not an employee.”
Glatt, 811 F.3d at 537.
The totality of the circumstances should be considered in view of the
“purpose of a bona fide internship ... to integrate classroom learning with
practical skill development in a real‐world setting.” Id. In a break from previous
tests, courts applying Glatt have acknowledged that the internship may provide a
direct benefit to the employer so long as the intern receives identifiable
educational or vocational benefits in return. See, e.g., Mark v. Gawker Media
LLC, 2016 WL 1271064, at *8 (S.D.N.Y. Mar. 29, 2016).
Judge Oetken analyzed each Glatt factor and determined that all of them
except the sixth (displacement of paid employees) either favored Hearst to some
degree or were neutral. Wang, 203 F. Supp. 3d at 354‐55. In assessing the totality
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of the circumstances, the court concluded that the “Plaintiffs were interns rather
than employees as a matter of law.” Id. at 355.
III
A. Factors One and Seven
The appellants concede that factors one and seven (expectation of payment
and entitlement to a job, respectively) favor Hearst. They argue, however, that
these factors bear little weight because FLSA rights cannot be waived. The
interns’ reading of these factors defies the clear mandate of Glatt, which
explained that “[a]ny promise of compensation, express or implied, suggests that
the intern is an employee‐‐and vice versa.” 811 F.3d at 537 (emphasis added).
These factors are crucial to understanding the “economic reality” of the
internship relationship; where, as here, the programs were described specifically
as unpaid internships for students–and students applied to the internships with
that unambiguous understanding–the relationship is far less likely to take on an
abusive quality.
B. Factors Two and Five
The second factor (training) is at the heart of the dispute on appeal. The
interns argue forcefully that Judge Oetken misconstrued this factor by
broadening the ambit of “training” to include “practical skills.” See, e.g., Wang,
203 F. Supp. 3d at 355. Wagster contends that the experience of having “s[a]t in
on marketing meetings” should have been discounted by his assignment to “take
meeting minutes.” Similarly, appellants argue that we should disregard
Spencer’s experience “learn[ing] about photo shoots” because she already knew
how to use a camera. The interns would thus limit the discussion of beneficial
training under the second factor to education that resembles university pedagogy
to the exclusion of tasks that apply specific skills to the professional environment.
Appellants’ interpretation ignores our instruction in Glatt that a key
element of the intern relationship is “the expectation of receiving educational or
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vocational benefits.” 811 F.3d at 536 (emphasis added); see also id. at 537 (“the
purpose of a bona‐fide internship is to integrate classroom learning with practical
skill development in a real‐world setting”). Glatt clearly contemplates that
training opportunities offered to the intern include “product[s] of experiences on
the job.” Id. at 536; accord Gawker Media LLC, 2016 WL 1271064, at *9
(“Plaintiffs take too narrow a view of [factor two], which includes the equivalent
of ‘clinical and other hands‐on training’”) (quoting Glatt, 811 F.3d at 537). The
appellants’ tacit assumption is that professions, trades, and arts are or should be
just like school; but many useful internships are designed to correct that
impression.
The interns argue that the district court “ignored” evidence that Hearst’s
internships were a poor substitute for classroom learning. In fact, the court
accepted the complaints as true, and for that reason, concluded that the factor
weighed only “slightly” in favor of Hearst. At the same time, it recognized that
those complaints do not wholly offset the undisputed fact that the internships did
provide beneficial training. Accord Lucia Vlad‐Berindan v. NYC Metro. Transp.
Auth., 2016 WL 1317700, at *7 (S.D.N.Y. Apr. 1, 2016). For this reason, the
appellants also misread the closely related fifth Glatt factor (valuable duration) in
arguing that the interns were not receiving “beneficial learning” when they
performed repetitive or similar tasks they had already “learned.” As exemplified
by the meeting minutes and photoshoots, practical skill may entail practice, and
an intern gains familiarity with an industry by day to day professional
experience. See, e.g., J. App’x at 743‐45 (accruing “good life skills” by repeating
administrative and organizational tasks such as “how to be more organized and
focused” in a professional environment); see also Gawker Media LLC, 2016 WL
1271064, at *10 (independent work an repetitive tasks not “incompatible with the
account of vocational training and mentorship” identified elsewhere in the
record).
C. Factors Three and Four
The third and fourth Glatt factors relate to the integration of the internship
to the student‐intern’s academic program and academic calendar, respectively.
Both parties and the district court acknowledge that the interns’ experiences
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diverge with respect to these factors. In general, however, the internships were
arranged to fit the academic calendar and required academic credit as a
prerequisite.
Factor three (academic integration) clearly favors Hearst for all interns
except Wagster. For some interns, the connection is straightforward. Spencer’s
internship was a graduation requirement for his major. Wheels’ internship with
the editorial department of a magazine meshed with her academic major in
English and professional interest in writing. And while Rappaport’s internship
did not “integrat[e]” with “coursework” from her international relations major,
she discussed the internship with her college faculty, wrote a paper about it, and
received class credit for it: her college thus treated the internship as a course.
It is argued that “there was no connection between a formal education
program and Wang’s internship” in the fashion industry. Appellants’ Br. at 37.
But Wang interned between the completion of her undergraduate degree in
fashion and the start of her graduate degree, also in fashion. She intentionally
deferred her start date for graduate school and took a full time internship at a
Hearst magazine to gain professional experience. A jury is not necessary to infer
from these undisputed facts that Wang’s internship “is tied to [her] formal
education.” Glatt, 811 F.3d at 537. That Wang did not receive credit does not
undermine the connection between her formal education program and her
internship; she did not receive credit because she did not pursue it. As a matter
of law, the (undisputed) fact that the program required a student to earn
approval from an accredited university for the “receipt of academic credit”
generally is more telling than whether credit was actually awarded in that
individual’s case.1
1
Wagster’s circumstances differ because he was denied credit specifically
“due to a reevaluation of the educational value of the internship,” indicating a
frayed connection between his internship and formal academic program.
Appellee’s Br. at 28; see J. App’x at 399. Pre‐approval for credits paired with
subsequent withholding of those credits on a substantial basis would make the
third factor at least neutral as to Wagster, if it does not outright favor him.
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For the majority of the interns here, the undisputed evidence also favors
Hearst with respect to the fourth factor (academic calendar). Rappaport, Spencer,
and Wheels interned during their college summer breaks in accordance with the
school calendar. Wang had deferred her studies to intern between school years,
and Wagster was not an active student during his internship. Hearst did not fail
to accommodate their academic schedules when they had no schedules to
accommodate.
D. Factor Six
The sixth factor (displacement) considers the extent to which an intern’s
work complements the work of paid employees or displaces it. An intern’s work
is complementary if it requires some level of oversight or involvement by an
employee, who may still bear primary responsibility. The district court
considered that the sixth factor favored the interns because the interns completed
some work regularly performed by paid employees.
This factor alone is not dispositive. An intern may perform
complementary tasks and in doing so confer tangible benefits on supervisors.
The Glatt factors intentionally omitted a criteria that had been advanced by the
Department of Labor that the alleged employer derive no immediate advantage
from the activities of the intern. Glatt, 811 F.3d at 534. It is no longer a problem
that an intern was useful or productive. See also Gawker Media, 2016 WL
1271064, at *12‐13.
IV
The facts of this case permit inferences that support Hearst with respect to
certain Glatt factors, and inferences that support particular interns with respect to
other factors. The interns and amici urge that such mixed inferences foreclose a
ruling on summary judgment.2 We disagree, for the reasons explained by the
2
Many of our FLSA tests that are fact‐sensitive and require the judge to
assign weight are routinely disposed of on summary judgment. See Hart v.
Rick’s Cabaret Intern., Inc., 60 F. Supp. 3d 447, 456‐57 n. 5 & 6 (S.D.N.Y. 2014);
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district court, which weighed all factors under the totality of the circumstances,
and concluded that the interns are not “employees” for the purposes of the FLSA.
As the interns observe, these cases do involve a “fact specific” and case‐by‐
case analysis. But “the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)(emphasis omitted); see,
e.g., Gawker Media LLC, 2016 WL 1271064, at *9 (“There are no genuine issues of
material fact–that is, issues that could change the Court’s calculus if resolved in
favor of [the intern] at trial.”). Status as an “employee” for the purposes of the
FLSA is a matter of law, and under our summary judgment standard, a district
court can strike a balance on the totality of the circumstances to rule for one side
or the other. See Glatt, 811 F.3d at 537 (“every factor need not point in the same
direction for the court to conclude that the intern is not an employee”)(emphasis
added); Brock v. Superior Care, Inc., 840 F.2d 1054, 1058‐59 (2d Cir. 1988).
There are contested issues that bear on the quality of each intern’s
experience. The crucial point is that a district court may rule on summary
judgment if it can weigh the Glatt factors on the basis of facts that are not in
dispute. As the district court recognized, the internships “involved varying
amounts of rote work and could have been more ideally structured to maximize
their educational potential,” but concluded that these critiques did not give rise
to a material factual dispute. Wang, 203 F. Supp. 2d at 355; accord Lucia Vlad‐
Berindan, 2016 WL 1317700, at *7‐8 (approving a motion to dismiss
recommendation with two factors in intern’s favor “outweighed” by other five);
Meyer v. U.S. Tennis Ass’n, 607 F. App’x 121 (2d Cir. 2015)(summary order
reflecting settled law). The amici contend that summary judgment is inapposite
in all unpaid intern cases that turn on competing factors. Such a rule would
foreclose weighing of undisputed facts in this commonplace fashion.
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Gawker Media LLC, 2016 WL 1271064, *11 (granting summary judgment while
acknowledging that “contrary evidence” existed in the record and the sixth factor
favored the intern).
CONCLUSION
The judgment is affirmed.
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