Brooklyn Journal of Corporate, Financial & Commercial Law


This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not to be an employee under the FLSA if the following three factors are met: (1) the training is similar to that of which the interns would receive at an educational institution, (2) the program is designed to benefit the intern, and (3) the intern does not displace regular employees. This test is congruent with Congress’s intent of only allowing for narrow exceptions to overtime and minimum wage compensation under the FLSA and provides both employers and employees with clearer guidelines for creating future internship programs.