Interns not entitled to salary under FLSA

Lindy Korn, BridgeTower Media Newswires

The Court of Appeals has clarified rules governing when interns are entitled to salary under the Fair Labor Standards Act.

The case is Wang v. Hearst Corporation, decided on Dec. 8, 2017(16-3302-cv). The following factors are controlling when interns are really employees and are entitled to payment for their services:

• 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.

This test stems from Glatt v. Fox Searchlight Pictures, 811 F.3d 528(2nd Cir., 2016), which is the controlling case in the Second Circuit. The multiple plaintiffs in this particular case worked for Hearst Publications and were interested in careers in fashion. One interned for Cosmopolitan. They did perform tasks relating to their professional pursuits and gained valuable knowledge and skills. But they also complained that many of their duties were menial and repetitive, they did not receive close supervision or guidance and there was little formal training. They mastered most of their tasks within a few weeks, but did the same work for the rest of their internships.

The issue here was, are they interns or employees under FLSA?

The Court analyzes the factors as follows:

As for factor 2 (Training), the Court says plaintiffs “would... limit the discussion of beneficial education that resembles university pedagogy to the exclusion of tasks that apply specific skills to the professional environment.” The Court does not see it that way. “Training under the Glatt test “clearly contemplates that training responsibilities offered to the intern include products of experiences on the job.” While plaintiffs tacitly assume that professions, trades, and arts are or should be just like school, many useful internships are designed to correct that impression.”

Factors 3 and 4, dealing with academic integration and the academic calendar, favors Hearst because for most of the interns the internship was a graduation requirement and for another, the internship meshed with her academic major.

Factor 5 also favors Hearst because “practical skill may entail practice and an intern gains familiarity with an industry by day to day professional experience.” As for factor 6, which considers the extent to which an intern’s work complements the work of paid employees or displaces it — the Court notes that “An intern’s work is complementary if it requires some level of oversight or involvement by an employee, who may still bear primary responsibility.” This favor is not dispositive.

The Court held that status as an “employee” for the purposes of FLSA is a matter of law, and under summary judgment standard, a district court can strike the balance on the totality of the circumstances to rule for one side or the other. There are contested issues that bear on the quality of each intern’s experience. The crucial point is that a district court may rule on summary judgment if it can weigh the Glatt factors on the basis of facts that are not in dispute.

Since many law offices employ interns during the summer months, this case may provide useful guidance on the issue of employee or intern for FLSA purposes.


Lindy Korn practices at The Law Office of Lindy Korn and can be reached at, (716) 856-KORN (5676) or