What Is An Intern? Appeals Court Rejects DOL Test

The Second Circuit Court of Appeals has rejected the six-factor test used by the Labor Department to determine whether an intern is really an employee, adopting instead a primary-benefit test some consider more flexible and nuanced. The primary beneficiary test “focuses on what the intern receives in exchange for his work … [and] also accords the courts the flexibility to examine the economic reality as it exists between the intern and the employer,” the Court wrote. The test includes an examination of expectation of compensation, the extent of training, and whether or not the internship is tied to a formal education program. Daniel Schwartz, partner at Shipman & Goodwin LLP, examines how that complicates things for labor attorneys in Connecticut, where these rules mean someone may be an intern under federal law or state law, but not both.