Co-authored by Robert WhitmanAdam J. Smiley, and Meredith-Anne Berger

As this blog previously reported, a three-judge panel of the Second Circuit ruled against two separate groups of interns in early July, applying the “primary beneficiary” test—to evaluate whether unpaid interns are trainees not entitled to wages or employees who must be paid—and stating that conditional and class certification in internship lawsuits could be exceedingly difficult for plaintiffs to achieve.

On August 14, the interns in Glatt v. Fox Searchlight and Wang v. Hearst Corp. asked the Second Circuit for reconsideration of the July ruling or, alternatively, for review en banc by the full court. They argue that categorizing unpaid interns differently than other employees is contrary to Supreme Court and Second Circuit precedent and creates a category of “quasi work” that would allow private employers to receive free labor. They urge the court to adopt a test that allows unpaid internships only where employers receive no ‘immediate advantage’ from any work done by” the interns.

The plaintiffs also took issue with the panel’s ruling on their class certification motion. In addition to arguing that the interns’ claims in Glatt were substantially similar, they said the panel should not have commented on the likelihood of class certification more generally and should instead have simply remanded the issue to the trial court to have the panel’s new test applied.

If en banc review is granted, the entire roster of 13 active judges on the Second Circuit (i.e., those not on senior status) would rehear the case. Such requests are very rarely granted. In addition to the plaintiffs, a coalition of organizations such as the National Employment Law Project and Intern Worker Alliance also appear to be supporting the request for further review of the panel’s decision.

The Glatt decision is already being relied on at the District Court level. Pop culture website Gawker recently filed a motion for summary judgment in its case against several former interns and argued that, under Glatt, the interns’ claims could not survive because the interns had “precisely the sort of hands-on, educational internships that the Second Circuit endorsed in Glatt.”

While Glatt appeared to throw cold water on potential internship claims, the trend of new lawsuits continues. Most notable is the recently filed class action against Dualstar Entertainment Group, the entertainment company owned by twins Ashley and Mary-Kate Olsen of Full House fame, in which the plaintiff alleges that the company violated the New York Labor Law by failing to pay its interns.

There is no timetable for the Second Circuit’s decision on the en banc request, but watch this blog for further developments.