Department of Labor Brief Provides More Guidance on Interns

by Franczek Radelet P.C.

intern.jpgIn the past, we’ve explained the DOL’s test for whether employers must pay their interns. Put simply, public employers and qualifying not-for-profit entities do not have to pay their interns. On the other hand, private employers must meet each point in a six-factor test for an internship to qualify as unpaid under the Fair Labor Standards Act. The Second Circuit is currently reviewing the case that started the most recent intern frenzy, where former interns sued Fox Searchlight pictures for unpaid wages on the set of the movie, Black Swan in Glatt et al., v. Fox Searchlight Pictures Inc., No. 11-6784 (S.D. N.Y. June 11, 2013). As you may recall when we reported on this case back in June 2013, relying on the DOL’s six-factor test and considering the totality of the circumstances, the district court determined that some of the plaintiffs were improperly classified as unpaid interns and were “employees” covered by the FLSA and a similar state statute.

At the Second Circuit’s invitation, the DOL submitted an amicus brief in support of the district court’s decision, providing employers with some additional guidance on how the DOL interprets the six-factor test (summarized in our earlier post linked above).

In general, the DOL advised the court that an intern is “less likely” to be an “employee” for FLSA purposes if the internship was “set up for the specific purpose of providing targeted educational training to the intern rather than being a general introduction to the workplace or a particular industry; benefits the intern because of the educational nature of the internship rather than providing the employer with free entry-level labor; provides close supervision and therefore does not displace regular employees; and does not include compensation or promise of a job…” At first glance, this seems to be the guidance we’ve known about for years. Looking more closely, though, what is noteworthy about the brief is the DOL’s explanation of these points.

Most importantly, the DOL explains that it is “critical” for bona fide internships to incorporate an educational component that “imparts substantial education content that is transferable beyond the confines of the particular workplace…” Explaining what it means by a “general introduction to the workplace,” the DOL explains that a bona fide internship must give the intern “more than the general skills and exposure that any new employee would receive in [the] first few months on the job.”

The DOL also expects that the education component will continue throughout the entire internship, not just for part of it. College credit is one factor the DOL will consider, but it will look at the flipside, too: are interns working in roles that a new hire or existing employee would have covered if the intern was not there? The DOL explains that businesses who are dependent on the intern’s work are essentially accepting “free entry-level labor,” not providing content for the intern’s benefit as the six-factor test requires. The DOL expects interns to receive “close supervision,” and that the agency will view an intern who receives the same level of supervision as a regular employee as an employee, too.

Of course, an internship must be unpaid and “should not be used as a trial period for permanent employment.” Similarly, the DOL’s brief indicates that the length of internships should be “fixed, rather than an open-ended, period of time.” The DOL also warns employers that the productive work an intern does cannot be offset by the “primary” or “relative” benefit the intern receives. In particular, the DOL rejects claims that a worker can qualify as an intern simply by receiving “intangible” benefits.

Insights for Employers

The Second Circuit may not ultimately adopt either the district court’s or the DOL’s position on whether Fox Searchlight should have classified its interns as employees. Even if it rejects them completely, though, employers should read the DOL’s guidance in the brief carefully. It is unlikely that anything short of a Supreme Court decision would cause the DOL to abandon its principles on unpaid internships.

Given the continued focus by the DOL on unpaid internships, underscored by its filing in the Second Circuit, you should carefully review your unpaid internship programs as the summer ends and in preparation for the next crop of interns. If you have come to rely on substantive contributions and benefits of work from interns each summer or during school semesters, the DOL’s demanding test means you will likely have a hard time justifying your internship program as unpaid, even if you have done things the same way for decades, even if your “interns” get school credit, and even if you think every other employer in the industry does the same thing as you do.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.