In an announcement on January 5, citing the Ninth Circuit’s December 19, 2017, opinion in Benjamin v. B & H Education, Inc., expressly rejecting the DOL’s six-part test for determining whether interns and students are employees under the FLSA, the Labor Department clarified that going forward it would use the “primary beneficiary” test. The Ninth Circuit was the fourth federal appellate court to expressly reject the DOL’s six-part test.
In its announcement, the DOL said that the agency will conform to these appellate court rulings by using the same “primary beneficiary” test that these appellate courts use to determine whether interns are employees under the FLSA. The “primary beneficiary test” includes
1. 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.
2. 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.
3. The extent to which the internship is tied to the intern’s formal education program by integrated course work or the receipt of academic credit.
4. The extent to which the intern ship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. 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.
7. 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.
“The Wage and Hour Division will update its enforcement policies to align with recent case law, eliminate unnecessary confusion among the regulated community, and provide the Division’s investigators with increased flexibility to holistically analyze internships on a case-by-case basis.”
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