DOL Adopts "Primary Beneficiary" Test For Internship Programs

The U.S. Department of Labor announced in a January 5, 2017 press release that it was scrapping the six-factor test it had used for years to determine whether interns are employees for purposes of the Fair Labor Standards Act and adopting the "primary beneficiary" test favored by a number of U.S. Courts of Appeals.

Under the DOL's old test, two of the factors suggesting a bona fide internship were "[t]he internship experience is for the benefit of the intern" and "[t]he employer ... derives no immediate advantage from the activities of the intern[.]" A number of federal courts (including the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2016), and the Ninth Circuit in Benjamin v. B & H Educ., Inc., — F.3d —, 2017 WL 6460087, at *4-5 (9th Cir. Dec. 19, 2017)) have rejected the six-factor test in favor of the "primary beneficiary" test, which focuses more on the economic realities of the relationship and examines, among other