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Is Your Internship Truly an Internship?

By Jacob Aronauer, Esq.

If you are a non-paid intern at a company but don’t believe you are truly getting the experience that an unpaid intern should receive then keep reading!  The Second Circuit Court of Appeals, in Glatt v. Fox Searchlight Pictures, recently issued a decision that sets forth the standard as to how New York Courts will determine what constitutes an internship.  This is a significant decision that can potentially have large reprecusions for both large and small businesses.  This is because if a business incorrectly decides to classify a true employee as just an intern (and not pay this intern) then that company is now potentially liable for significant damages under both the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).

In Glatt, three unpaid interns for Fox Searchlight Pictures filed a lawsuit against Fox saying that, based upon the work they performed, they should have been compensated as an “employee” under the FLSA and NYLL.  Like many interns, Plaintiffs were required to perform menial tasks such as keeping takeout menus up-to-date and running errands (this included one intern having to purchase a non-allergenic pillow for a well known movie director).  The lower court granted the interns motion for partial summary judgment based upon the United States Department of Labor’s six factor test.   In reversing the trial court, the Second Circuit stated it was ultimately more significant as to whether “the intern or the employer is the primary beneficiary of the relationship.”  While the Second Circuit listed a variety of factors  (which were not exhaustive), three key factors that weigh heavily are:

1.  whether the internship is tied to a formal education program;
2.  whether the internship’s work helps, as oppose to replace, the work of a paid employee; 
3.  whether the intern understands that they are not going to be paid or whether an intern expects to be hired at the conclusion of his or her internship.

If you are working an unpaid internship but this “internship” only benefits your employer–you may have been incorrectly classified as an intern.    And if you are working more than 40 hours a week, you may be the victim of overtime theft.  If you believe that you have been misclassified as an intern, please contact our office at 929-223-4195.   

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