Permitted to Suffer for Experience: Second Circuit Uses “Primary Beneficiary” Test to Determine Whether Unpaid Interns are Employees Under the FLSA in Glatt v. Fox Searchlight Pictures, Inc.

On January 25, 2016, the U.S. Court of Appeals for the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc., vacated the U.S. District Court for the Southern District of New York’s order, which found that unpaid interns were “employees” under both the Fair Labor Standards Act (“FLSA”) and New York Labor Law. The Second Circuit also vacated the district court’s certification of a New York class and conditional certification of a nationwide FLSA collective. In so doing, the Second Circuit held that the proper inquiry for determining whether an intern is an “employee” under the FLSA is whether the intern rather than the employer is the “primary beneficiary” of the engagement. This Comment argues that the Second Circuit’s reasoning was based on a misunderstanding of the reali-ty of unpaid internships and thus failed to address the common attributes of the modern internship. This Comment then proposes a set of revised factors for courts to consider, which better represent internship realities.