Work for Free and Maybe Meet a Celebrity? Probably Not a Lawful Internship!

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Unfortunately, it may be too late for some employers that have already begun their summer internship programs, but for-profit, private sector employers should be aware that they face a steep barrier when trying to establish lawful, unpaid internships. Although not-for-profit organizations have relaxed requirements when accepting the unpaid services of volunteers and interns, it is a very different story for private sector companies. The most recent decision on this topic, Glatt v. Fox Searchlight Pictures, Inc. (S.D.N.Y. June 11, 2013), definitively ruled in favor of the unpaid interns and indicated that six key criteria should be applied when determining whether an internship can be unpaid.

In April of 2010, the U.S. Department of Labor (DOL) issued Fact Sheet #71 entitled “Internship Programs Under the Fair Labor Standards Act.” Although various state laws impose even stricter requirements on employers, these minimum federal guidelines apply in every state. Unless all six of these factors are present, an employment relationship exists under the Fair Labor Standards Act (FLSA) between the worker and the employer—meaning also that the Act’s minimum wage and overtime provisions would apply to the “intern.”

While some courts have previously applied a more flexible “primary beneficiary” test (in which the issue of whether the intern or the employer obtains most of the benefits of the internship is dispositive), the court in Glatt believed that such a test is too “subjective and unpredictable.” Moreover, an employer could not know whether the internship meets the test until after the program is completed. The six factors—each of which must be present for the worker to be considered an unpaid intern—outlined by the DOL and used in Glatt are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment.
  2. The internship experience is for the benefit of the intern.
  3. The intern does not displace regular employees, but works under close supervision of existing staff.
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded.
  5. The intern is not necessarily entitled to a job at the conclusion of the internship.
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Neither the DOL nor the court in the Glatt decision allowed these factors to be weighed or considered “on balance.” It is an all-or-nothing proposition, and every one of the six factors must be demonstrated to escape application of the FLSA.

Although the internship must be similar to training provided in an educational setting pursuant to the first factor, it is important to understand that “college credit” is not one of the factors. Accordingly, the Glatt decision bluntly dispelled the idea that using the internship to obtain college credit will help save an otherwise unlawful internship program by stating: 

Receipt of academic credit is of little moment. A university’s decision to grant academic credit is not a determination that an unpaid internship complies with the [law]. Universities may add additional requirements or coursework for students receiving internship credit, but the focus of the [law] is on the requirements and training provided by the alleged employer.

Importantly, the last factor does not mean that the intern can merely agree to, or waive, the pay to which he or she might be entitled. The long-established rule under the FLSA and related state laws is that an employee cannot voluntarily waive minimum wage and overtime requirements. Yes, the intern needs to understand and know that he or she is not being paid, but the job still has to be a lawful unpaid internship in the first place.

So, companies that want to offer attractive opportunities to students (or unemployed graduates) and to provide those individuals with experience and “something to add to their resume” are forewarned: you may have to pay at least the minimum wage as well as any overtime pay to those interns. 

An intern would probably jump at the chance—with or without any compensation—to fetch coffee, answer phones, or make copies on a Hollywood movie set, at a New York publishing firm, or at any company with exposure to successful professionals who may later serve as good job references. After all, who wouldn’t want the opportunity to perhaps bump into Natalie Portman or Joseph Gordon-Levitt? Nonetheless, employers need to carefully analyze their unpaid internships to make sure that their programs comply with the law. Before it is too late, take this opportunity to audit your company’s internships to ensure that unpaid interns have a meaningful learning experience and that all six of the DOL’s factors are being met throughout the entire summer.

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, 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.
Custom Email Digest
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.