29th Jul 2015

In a prior blog post, I wrote about the case of Brown v. New York City Department of Education. In Brown, the United States Court of Appeals for the Second Circuit determined that a volunteer intern for a public school was exempt from coverage under the Fair Labor Standards Act (“FLSA”). In that blog post, I noted that unpaid internships have come under heavy scrutiny in recent years and that very same appellate court (the United States Court of Appeals for the Second Circuit) recently had occasion to take up yet another such case.

In Glatt v. Fox Searchlight Pictures, Inc., the court tackled the question of whether unpaid interns for movie and television production companies are covered by the FLSA. The district court, utilizing a six-factor test set forth by the United States Department of Labor in its Intern Fact Sheet, determined they were. The factors suggested by the Department of Labor are

1.  The internship, even though it includes actual operation of the facilities of the employer, is similar to training which 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; and

6.  The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Second Circuit rejected the district court’s use of the Department of Labor’s six-factor test,