Two former interns take important step toward “class action” status.

Class. Some litigants have it. Some don’t.

A couple of folks who worked as interns at Gawker Media have managed to convince a Federal District Court Judge in New York that they might have it. And that’s bad news for Gawker.

If you’ve read my August, 2013 post about lawsuits brought against media companies by unpaid interns, you should have an idea of what I’m talking about. Two former interns (originally there were four, but two of them bailed) sued Gawker, claiming, among other things, that Gawker hadn’t paid them as required by the Fair Labor Standards Act (FLSA). To beef up their case, the two interns think that they might be able to expand the suit to become a “class action” in which they would be joined by bunches of other similarly-situated former Gawker interns.

And in August a U.S. District Judge in New York (and not just any judge – Judge Alison Nathan of Aereo fame! Is there anything she can’t do?) gave the plaintiffs the green light to go out and round up potential co-plaintiffs. (The name of the case is Mark v. Gawker Media LLC.)

The case is exactly what you’d expect in a Former Interns v. The Man lawsuit. The plaintiffs allege that they were never paid for the time they spent performing work that was “central to Gawker’s business model”. (For readers not au courant with everything on the Internet, Gawker is an “Internet publisher” which reportedly bills itself as “the source for daily Manhattan media news and gossip”.) The interns’ tasks included “writing, researching, editing, lodging stories and multimedia content, promoting content on social sites, moderating the comments forum and managing the community of Gawker users” – in the interns’ view, basically the stuff that kept Gawker up and running. Only they didn’t get paid.

The interns asserted various claims under the FLSA (and similar claims under New York law). But there were still just two plaintiffs, even though they were sure that Gawker had enjoyed the services of many other interns on the same non-pay terms over the years. Obviously, if the plaintiffs could bring a bunch more like-motivated souls into the case, their odds of success might be strengthened (or at least their bargaining power in any settlement deal might be improved).

So they filed a motion asking Judge Nathan for “conditional certification” and an order allowing them to publish notices that might attract the attention of other former interns who might then “opt-in” to the lawsuit. The motion did not ask for a determination that the plaintiffs – and others like them – are for sure a “class” for “class action” purposes; rather, it asked for (a) a preliminary ruling that it might be a class and (b) the opportunity, through court-ordered public notices, to bring more of the putative class’s members into the fold. (Needless to say, Gawker, presumably hoping to keep this case as small as possible, opposed the motion.)

The standard for this kind of motion isn’t particularly high. The plaintiff needed only to make a “‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law’”. Judge Nathan looked at whether the plaintiffs and other potential opt-in plaintiffs would be considered unpaid trainees under the FLSA – the same question posed in the cases I discuss in my earlier post, cases which are still being considered on appeal by the United States Court of Appeals for the Second Circuit.

Assessing the plaintiffs’ showing, Judge Nathan noted that courts have routinely certified as a class various FLSA collectives made up of individuals who claim they were improperly classified as independent contractors rather than employees. She also noted that other cases involving unpaid intern claims have resulted in class certification.

In this case, like earlier intern cases, it’s clear that interns were acting like employees: they were independently tasked but given little supervision; they were performing work similar to that done by Gawker’s full time employees; Gawker was deriving benefit from their work; and there were few if any indicia of any educational training component within the internship program. And while each individual intern might have worked on different projects in different locations from the other interns, all of them ended up on the same side of this key intern v. employee question. In view of all of those consideration, Nathan found that the interns have a credible, common claim, and she gave them the conditional certification – and the court-ordered public notice – they were asking for.

So what does this mean for other media companies – and all other companies, for that matter, since the legal principles aren’t limited to the media? For the biggest companies that have hired, but not paid, flocks of interns over the past decade or more, Judge Nathan’s certification decision is another big defeat on a key procedural issue. There’s strength in numbers and certification/public notice decisions like this open the door (and flash a large visible “Welcome” sign) for new litigants to “opt in” without much effort.

Where intern-reliant companies might previously have ignored the occasional intern’s claim for back wages under the not-unfounded belief that the former intern wouldn’t devote the energy or money necessary to lawyer up and sue, that hurdle is gone. Would-be plaintiffs need only opt in to the already-started litigation to get their cut. And the public notice aspect merely makes it easier for such would-be plaintiffs to learn of these opportunities.

Bottom line: “conditional” certification helps individual plaintiffs ratchet their cases up to “class action” status, and such “conditional” certification is obviously available. As full class certification becomes increasingly accepted in intern cases, we can expect to see the overall number of such cases swell.

Even if you’re the type of company that didn’t really have an intern “program” – maybe you took on a student here or there – the Gawker case reminds us all that the bulk of intern cases in recent years haven’t gone well for the company using interns. You may want to start setting aside money in case former interns come knocking at your door; you certainly want to change your programs going forward to ensure that you’re either paying your interns actual wages or truly offering them an actual educational experience.