Last year, I discussed circumstances under which a volunteer may be considered an employee for the purposes of the Fair Labor Standard Act. As discussed previously, the Federal Fair Labor Standards Act (“FLSA”) requires both public and private entity employees to be paid minimum and overtime wages. The question of who qualifies as an “employee” under the FLSA is not as simple as you would expect. Last year, we discussed the 2014 opinion of the Second Circuit Court of Appeals, Brown v. New York City Department of Education, as to when a public volunteer may be considered to be an employee entitled to wages.
Earlier this month, in Glatt v. Fox Searchlight Pictures, Inc., the Second Circuit Court of Appeals provided some parameters as to when an intern must be a paid employee. The Court opined that the focus should be upon whom is receiving the primary benefit of the internship (the intern or the entity), and laid out seven factors to be weighed and considered in determining whether an intern must be paid as an employee:
- The extent to which both the intern and employer clearly understand that there is, or is not, an expectation of compensation (any promise of compensation, express or implied, suggests that the intern is entitled to wages);
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including clinical and other hands-on training;
- The extent to which the internship is tied to the intern’s formal educational program by integrated coursework or the receipt of academic credit;
- The extent to which the internship accommodates the intern’s academic commitments (i.e, following the academic calendar);
- The extent to which the duration of the internship is limited to the period in which the intern will receive beneficial learning experiences;
- The extent to which the intern’s work compliments, rather than displaces, the work of paid employees, while providing significant educational benefits to the intern; and
- The extent to which both the intern and the employer understand that there is no entitlement to a paid job at the conclusion of the internship.
No one factor is primary to determining whether the intern must be paid under the law for his or her work. Every factor need not point in the same direction, and the courts may consider other relevant evidence (beyond the above seven factors) in determining who is the primary beneficiary of the relationship, and hence, whether wages to the intern are required.
The decision in Glatt serves as an important victory for employers, as private employers now have been given parameters under which to determine whether an intern must be paid under the FLSA.
 Nos. 13-4478-cv, 13-4481-cv (July 2, 2015).