Intern Protection Laws May Be Hurting Interns by third year law student at UCLA School of Law, Harrison Thorne.
Employees are entitled to many benefits, including minimum wage, overtime wage, social security tax contributions, insurance (disability, unemployment), Family and Medical Leave and workers’ compensation. Interns generally do not receive benefits, nor are they paid. Accordingly, some businesses have relied on interns as a source of free labor. The businesses exploiting interns typically claim that they are providing the interns with intangible benefits such as access to high-level professionals, practical experience and resume value. The interns respond that they are performing tasks for which they should receive compensation. Interns have generally lost this battle.
All that could change, based on the U.S. Court of Appeals for the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc., also known as the “intern case”. The plaintiffs were college graduates working as interns for Fox Searchlight. Several worked well over 40 hours per week, and all of them performed tasks typically associated with entry-level paid positions. They argued that they were “employees” under the Fair Labor and Standards Act (the “FLSA”), and must be compensated for the work they performed.
The FLSA itself was of little assistance in the case, as it defines employees as, “individual[s] employed by an employer”, and “employ” as “to suffer or permit to work.” 29 U.S.C. § 203. Rather, the plaintiffs relied on the Department of Labor’s six-factor test to determine whether a worker is an intern or employee. Applying the DOL’s six-factor test, the U.S. Court for the Southern District of New York ruled in favor of the plaintiffs’ motion for summary judgment, finding that they had been improperly classified as unpaid interns rather than employees. Fox Searchlight appealed, and the Second Circuit granted its petition for leave to file an interlocutory appeal from the district court’s order.
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