Employee Relations Law Journal
"Intern or Employee? The Circuits Are Split"
Are student interns employees entitled to minimum wage and overtime under the Fair Labor Standards Act of 1938 (FLSA)? The answer to what would seem to be a straightforward question depends upon multiple factors, and those factors vary from circuit to circuit. In a case of first impression, Glatt v. Fox Searchlight Pictures, Inc., the U.S. Court of Appeals for the Second Circuit recently joined the U.S. Courts of Appeal for the Fourth, Fifth, and Sixth Circuits in adopting the “Primary Beneficiary” test for determining when student interns are covered by the FLSA. Shortly thereafter, the U.S. Court of Appeals for the Eleventh Circuit adopted the test propounded by the Second Circuit. The U.S. Court of Appeals for the Tenth Circuit, on the other hand, applies the “Totality of the Circumstances” test.