Earlier this month, US employers received important news just as the season of hiring summer interns is set to begin. The Department of Labor (“DOL”), through Fact Sheet #71, clarified its position regarding unpaid internships and officially adopted the “primary beneficiary test” for determining whether interns are considered employees under the Fair Labor Standards Act[1] (“FLSA”).  The FLSA requires employers to pay employees for their work, but if an intern or student is not considered an employee, then the employer is not required to compensate them.

Specifically, the “primary beneficiary test” balances the following seven factors:

1. 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.
2. 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.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. 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.
7. 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.

Unlike the prior DOL test which, through six enumerated factors questioned whether the employer received an “immediate advantage” from the intern’s work, this is a flexible test. No one factor is determinative and the test is dependent on the unique circumstances of each case, reflecting the economic realities of the individual intern-employer relationship.  In fact, the DOL noted that the change would hopefully provide investigators with “increased flexibility to holistically analyze internships on a case-by-case basis” and “eliminate unnecessary confusion.”

Now that the DOL has embraced the standard adopted by the 2nd, 6th, 11th, and most recently the 9th Circuit, employers finally have guidance on how to structure their internship programs so that interns are not deemed employees under the FLSA.  Along with balancing different factors when evaluating the intern-employer relationship under the FLSA, some states, such as New York, have additional wage laws which cannot be overlooked.

[1] The “primary beneficiary test” has been adopted in the 2^nd, 6^th, 9^th and 11^th Circuits through the following cases: Benjamin v. B & H Educ., Inc., — F.3d —, 2017 WL 6460087, at *4-5 (9th Cir. Dec. 19, 2017); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536-37 (2d Cir. 2016); Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1211-12 (11th Cir. 2015); see also Walling v. Portland Terminal Co., 330 U.S. 148, 152-53 (1947); Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 529 (6th Cir. 2011).