Co-authored by Robert S. Whitman, Nadia S. Bandukda, Adam J. Smiley, and Jade Wallace

The Super Bowl isn’t the only major showdown coming this weekend.

On Friday morning, a three-judge Second Circuit panel will hear argument in two cases raising critical issues for the fate of internships in for-profit businesses:  (1) Fox Searchlight’s appeal of the decision granting summary judgment and class certification to interns who worked on film productions and (2) the appeal by former Hearst Corporation interns whose motion for class certification was denied.

At issue in both cases is the test to be used to evaluate whether interns are “employees” under the FLSA or “trainees” who are exempt from minimum wage and overtime requirements.  Under the common law “primary benefit” test, if the internship primarily benefits the intern rather than the employer, the intern is properly deemed a trainee and not entitled to compensation.  The Department of Labor (“DOL”) has declared that internship status should instead be determined by a strict 6-factor test and that if each factor is not satisfied, the intern is entitled to compensation.  The lower courts have applied modified versions of these tests and reached differing results.

We have written frequently on this topic (in May 2013, November 2013, and April 2014), but to tide you over until kickoff, we break down the matchup by looking at what the many friends of the Court have to say about the issue.

Five groups have filed amicus curiae briefs in the two appeals: the Secretary of Labor, the U.S. Chamber of Commerce, the Economic Policy Institute, Organized Labor (AFSCME, SEIU, CWA, UFCW), and the American Council on Education.  Here is where each group stands on the key issues before the Court:

	DOL	Chamber of Commerce	EPI	Organized Labor	ACE
What test does group support?	DOL 6-Factor Test	Primary Benefit Test	Brief does not urge the court to adopt any specific test	DOL 6-Factor Test	Functional standard similar to Primary Benefit Test:  leaves the determination of intern status with educational institutions rather than DOL
Key arguments	DOL test is based on Supreme Court’s Portland Terminal decision.DOL test provides a consistent, objective standard for analyzing internship programs.	Focuses on the benefits to interns and businesses from internship programsDOL test: 1) impedes students’ ability to develop skills in meaningful internship experiences; 2) will reduce available internship opportunities; and 3) places an onerous burden on employers to ensure interns are not engaging in productive work	FLSA must be expansively construed to cover internships where “workers are suffered or permitted to work.”“Many… non-traditional jobs come under the broad FLSA definitions of employment, and when scrutinized do not pass muster.”	The Primary Benefit test could deny traditional common-law employees from FLSA protection	Primary Benefit analysis allows courts to develop a standard that prevents abuse but also permits varied and flexible learning experiences without fear of liabilityThe approval of an internship by a college or university should provide a presumption of compliance with the FLSA
Notable Quotes:	“In an internship context, a primary benefit test could be applied to exclude from the protections of the FLSA interns who are receiving very basic training on the employer’s operation while performing productive work for the employer on the theory that because interns are new entrants to the workforce, even the most rudimentary instruction or general exposure to a particular industry inures to their benefit.”	“Prohibiting interns from performing any productive work is antithetical to a meaningful internship.”	“Unpaid interns are likely to receive jobs with lower median wages than paid interns and applicants with no internship experience.”	Applying the Primary Benefit test would “strip [workers] of a slew of other statutory workplace rights – concerning sexual harassment, discrimination on the basis of race and gender, workplace safety, and collective bargaining – that apply only to wage earners.”“Unpaid internships are a hallmark example of the race to the bottom in wages that result when, in the perceived absence of FLSA coverage, workers at the lowest rung of the labor market are forced to compete against one another to offer their services at the cheapest possible rate.”	The DOL 6-factor test would be insufficient to address experiential learning and “cannot be used to evaluate the educational value of a particular internship.”“The uncertain and chilling prospect of employer FLSA liability for a legitimate educational internship restricts, if not altogether eliminates, opportunities which college students need in the public sector, in the non-profit sector, and in the business world.”The business concern about employing the 6-factor test and about civil liability under the FLSA has brought a “profound negative impact on the availability of internships” and allowing businesses to feel that such programs are “too risky.”

 

It is of course too soon to know whether the Second Circuit panel will be swayed by any of this.  Given the DOL’s primary enforcement role under the FLSA, its views will surely be given respectful consideration and perhaps strong deference.  But the amicus briefs come from a range of interested parties and reflect the importance of the internship issue to the various constituencies.  As of this post, only the DOL has been allowed any argument time in addition to the parties.

We will report on the arguments shortly after they close on Friday, and update readers as soon as possible thereafter.