In New York, after prevailing in trial court, unpaid interns for Fox Entertainment Group were able to receive class credit and minimum wage for their work on the set of the film “Black Swan.” Their win made the Second Circuit Court of Appeals adopt a test to be used in determining whether an unpaid intern should be classified as an employee. Here are the factors that should be applied in determining whether they are actually an employee:
- The parties’ understanding regarding expectation of compensation
- The similarity of the internship training to that available in an educational environment
- Whether the internship is tied to the intern’s education and accommodates the intern’s academic commitments
- The duration of the relationship
- Whether the intern’s work complements, rather than displaces, paid employees
- The parties expectation about a permanent job offer at the end of the internship.
These factors only apply in the Second Circuit (Connecticut, New York & Vermont), but they do provide some guidance when evaluating and setting up internship programs to comply with the Fair Labor Standards Act.
For more information see Laura Lawless Robertson’s post on The National Law Review online.