Most unpaid internships are illegal. 

Most unpaid internships are illegal. So if you are working for free, you might be entitled to considerably compensation. Below is an article describing the test set forth by the Second Circuit (federal court of appeals for NY, CT and VT). If you are working an unpaid internship, and you think that it meets the standard described below, call us – we can help!

In Glatt v. Fox Searchlight, the Second Circuit considered the question of whether an unpaid intern qualifies as an employee entitled to compensation under the FLSA. The Court held that, in assessing the nature of the relationship between an intern and his employer, “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” This “primary beneficiary test,” the Court explained, has “three salient features: “(1) its “focus[] on what the intern receives in exchange for his work,” (2) its “flexibility to examine the economic reality” of the relationship, and (3) its acknowledgement that the intern-employer relationship is subject to unique considerations in light of the intern’s expected “educational or vocational benefits that are not necessarily expected with all forms of employment.”

The Second Circuit has advised courts, “[i]n the context of unpaid internships,” to weigh a “non-exhaustive set of considerations” when evaluating whether an unpaid intern qualifies as an employee for the purposes of the FLSA. These considerations include:

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.

Were you promised a job when the internship was over?

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.

Was the real purpose of the internship to teach you skills, or just to make you do work?

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

Do you get academic credit? Or something like that?

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

Does the internship accommodate your school schedule?

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

Is the internship never-ending, or is there a term?

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.

Are you doing work that displaces other, paid employees?

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.

Does the employer hang the job in front of you like a carrot?

The Glatt Court explained that “every factor need not point in the same direction for the court to conclude that the intern is not an employee entitled to the minimum wage.” Id. Rather, applying these factors “requires weighing and balancing all of the circumstances,” with the “economic reality of the relationship” as the “touchstone of [the] analysis.”

Most unpaid internships are illegal. If you are working for free – call or email us. If we can, we will get you paid!