This employment law question is one that has been debated in employment, education and legal circles for some time.
For years, the Department of Labor decided the question using something called the “six-factored test.”
While that appeared to answer the question and define the qualifications for intern status – two Federal Courts have now rejected that test.
In the case of Glatt v. Fox Searchlight Pictures, the 2nd Circuit Court became the second Court to reject the Department of Labor’s formula, showing that they instead favor a more flexible “primary-benefit test”.
In reaching its decision, the 2nd Circuit explained the importance of the question:
“When properly designed, unpaid internship programs can greatly benefit interns. For this reason, internships are widely supported by educators and by employers looking to hire well‐trained recent graduates. However, employers can also exploit unpaid interns by using their free labor without providing them with an appreciable benefit in education or experience.
In this most recent case, the court sided with the employer and the use of a “primary benefit” test:
“[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.… Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.…
In the context of unpaid internships we think a non‐exhaustive set of considerations should include:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, expressed or implied, suggests that the intern is an employee—and vice versa.
- 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.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- 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.…”
If you have questions about your current intern program and want to avoid legal issues, talk to a well trained Connecticut employment lawyer. The attorneys at Kainen, Escalera & McHale each have over 20 years of experience in these employment matters and would be pleased to help you. Please contact us if we can help.
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