The DOL started 2018 with a bang, adopting the primary beneficiary test in lieu of the previous six-part test for determining whether interns and students are employees for purposes of the FLSA. This is a pretty big deal for employers desiring to use unpaid internships. The decision to adopt the primary beneficiary test comes after numerous federal courts rejected the DOL’s six-part test that required an intern or student to meet all six factors in order to be exempt under the FLSA requirements. As a practical matter, most internship programs failed to meet at least one of the six factors resulting in the intern being consider an employee and subject to minimum wage and overtime requirements.
The new seven factor primary beneficiary test analyzes “the ‘economic reality’ of the intern-employer relationship to determine which party is the ‘primary beneficiary’ of the relationship”. Here are the seven factors:
- 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.
- 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.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- 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.
- 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.
Since no single factor is dispositive, the DOL now has greater flexibility to determine the relationship of the employer and intern or student on a holistic case-by-case basis.