By Scott R. Flick
Back in 2015, I wrote a post on CommLawCenter discussing the prevalence of interns in the communications industry, and the Department of Labor’s crackdown on businesses illegally failing to pay their interns. That crackdown began in 2010, with the DOL applying a rigid six-part test to determine whether an intern must be paid at least minimum wage for time spent working. This caused a lot of consternation in media companies, with many electing to just drop internship programs rather than risk a violation of the Fair Labor Standards Act. For those media companies, and the students that faced a suddenly diminished number of available internships, an announcement this past week from the Department of Labor will be welcome news.
When the Department of Labor stepped up enforcement against for-profit businesses illegally using unpaid interns, it released a Fact Sheet on whether an individual could be classified as a trainee or intern exempt from the Fair Labor Standard Act’s requirement that employees be paid at least the federal minimum wage and receive overtime pay. The Fact Sheet laid out the six-part test that the DOL adopted in the 1960s, noting that “[i]nternships in the ‘for-profit’ private sector will most often be viewed as employment” unless all six of the criteria are met. The six criteria were:
- 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;
- the internship experience is for the benefit of the intern;
- the intern does not displace regular employees, but works under close supervision of existing staff;
- 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;
- the intern is not necessarily entitled to a job at the conclusion of the internship; and
- the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
From the DOL’s perspective, if an employer couldn’t demonstrate that all six factors were met, the intern was an employee, and the employer would be liable for paying the intern wages and overtime.
The reason I wrote about the crackdown in 2015, however, was because of a then-recent ruling by the U.S. Court of Appeals for the Second Circuit which found the Department of Labor’s test too rigid, and instead applied a more flexible standard that assessed whether the business or the intern was the “primary beneficiary” of the arrangement. Specifically, the court examined whether the internship was primarily for the economic benefit of the employer or primarily for the educational benefit of the intern.
As I noted at the time, that was good news for businesses in New York, Connecticut, and Vermont, which are within the Second Circuit’s jurisdiction, and potentially for businesses elsewhere, as the U.S. Court of Appeals for the Second Circuit is influential. The logic of its ruling might well persuade courts in other circuits to follow suit.
That did in fact happen, with the California-based Ninth Circuit court recently becoming the fourth circuit to adopt the “Primary Beneficiary” test. Recognizing this judicial tide, the Department of Labor announced on January 5, 2018 that it is also adopting the Primary Beneficiary test. It indicated it was doing so both to comply with these court rulings and to eliminate the confusion of dueling tests that depend on what part of the country a business is located.
While I have had to learn a lot about employment law in handling mergers, sales, and other media transactions, I am not an employment lawyer, have not played one on TV, and did not stay at a Holiday Inn Express last night. I would therefore encourage those interested in getting the full details of the DOL’s announcement to take a look at a new Employment Advisory on the subject by Pillsbury’s own Julia Judish and Andrew Lauria. In particular, you should note their admonition that this only changes the federal standard, and if your state has a more restrictive standard, you will need to take that into consideration.
Among other things you will learn is that the DOL, in classic government fashion, replaced the rigid six-factor test with a seven-factor test. The big difference, however, is that the old test required every factor to be met, whereas the new test has seven factors for consideration (along with any other factors that might be relevant to a particular intern), with no single factor being determinative of the outcome. For example, if your internship program met five of the six old factors, but you couldn’t prove that the internship yielded no “immediate advantage” to the business and that the intern might actually impede your operations, the new test may be more to your liking.
So if you discontinued your internship program because you couldn’t show all six factors favored a finding that the position was correctly categorized as an unpaid internship or, as was often the case, you just didn’t want to risk having to defend yourself against a lawsuit for unpaid wages, you may want to revisit that decision. If an objective review would find that the business is the primary beneficiary of the internship, you’ll still need to pay wages and overtime to your interns. But if you are comfortable (after checking with counsel of course) that the primary beneficiary is the intern, then it is time to relaunch your internship program and introduce a whole new generation to the wonders of the media workplace. Maybe, just maybe, they will then become your ambassadors to a new generation that doesn’t really know what to make of any media that doesn’t have the word “social” in front of it.