Another Blow to Intern Test
The DOL’s six-factor test for determining “employee” status for interns or trainees under the FLSA took another blow last Friday, this time from the Eleventh Circuit in Schumann v. Collier Anesthesia, PA (11th Cir. Sept. 11, 2015). The Court, following the lead of the Second Circuit, tossed the DOL’s six-factor test, finding it too outdated for today’s economy. Plaintiffs, a group of RNs studying to become nurse anesthetists, were required (by the college and by state law) to participate in a clinical experience before receiving their master’s degree and license. Plaintiffs filed suit alleging that they were defendant’s “employees” and were entitled to wages and overtime for their clinical efforts. The court held that whether defendant derived an advantage from the interns—a key factor under the DOL test—cannot, without more, render the interns “employees” under the FLSA. Courts must evaluate the benefits to the intern while ensuring programs do not take unfair advantage of or abuse interns.
The court did not decide whether the Schumann interns were employees, but instead remanded the case to the district court for analysis under the Second Circuit’s non-exhaustive considerations from Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376, 384 (2nd Cir. 2015), which include the extent to which: (1) the intern and the employer clearly understand that there is no expectation of compensation; (2) the internship provides training that would be similar to that which would be given in an educational environment; (3) the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit; (4) the internship accommodates the intern’s academic commitments by corresponding to the academic calendar; the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning; (5) the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and, (6) the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
One can only hope that this development is a sign of things to come and signals the eventual demise of the DOL’s six-factor test.