For Intern Test, Appeals Court Recognizes “Economic Realities”

An Eleventh Circuit Court of Appeals decision appears to reject the Department of Labor’s six-factor test for determining whether an intern is functioning as an employee for purposes of the Fair Labor Standards Act. The appeals court instead, writes Ogletree Deakins attorney Kristy G. Offitt, “endorsed a  primary beneficiary test designed to account for the economic realities of modern-day internships for academic credit and professional certification.” This test looks at a number of factors. No one factor is determinative, and they don’t need to all point in the same direction. Importantly, the fact the employer derives some benefit from the arrangement does not necessarily mean that the employer is the “primary beneficiary,” and thus does not automatically render the intern an employee.