With the end of the college year nearing, many college students are looking for internships. The question on many of their minds is whether they will be paid for their internship. Courts have struggled in implementing a legal framework for determining whether interns should be paid, as an employee rights and discrimination lawyer trusts can attest. Some circuits apply the Department of Labor (DOL)’s six-factor test (outlined in a DOL Fact Sheet), which was created by applying the holding of Walling v. Portland Terminal Co., 330 U.S. 148 (1947). Other circuits apply some version of the “economic realities test”.
In the Eleventh Circuit, the Court no longer applies the DOL’s six-factor test. In Schuman v. Collier Anesthesia, P.A., 803 F.3d 1199 (11th Cir. 2015), a student registered nurse anesthetist (SRNA) was enrolled in a training program. The District Court found she was not an employee and dismissed the case on summary judgment. The Eleventh Circuit reversed, holding that the DOL test was not controlling because it was outdated and ill-suited for the twenty-first century educational internship. The Eleventh Circuit instructed the District Court to “focus on the benefits to the student while still considering whether the manner in which the employer implements the internship program takes unfair advantage of or is otherwise abusive towards the student.”
On remand, the District Court found that the starting point for the primary beneficiary analysis in the modern-internship context is the list of seven factors set forth by the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2016). These seven factors include 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.
- 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 internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The internship duration is limited to the period during which the internship provides the intern with beneficial learning.
- The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Under this “flexible” approach adopted by the Eleventh Circuit, no single factor is dispositive and it is unnecessary that every factor point in the same direction. Courts may also consider other factors not listed if it is appropriate and may consider evidence about an internship program as a whole rather than the experience of a specific intern.
