Hitting the Unpaid Intern Trifecta: Litigation, Certification, and Settlement

With the Kentucky Derby less than a month away, we have a trifecta of unpaid internship developments for you:

• First, On April 4th, the U.S. Department of Labor filed an amicus brief with the Second Circuit Court of Appeals, arguing in support of the Hearst unpaid interns, who are appealing the Southern District of New York’s May 2013 denial of class certification for their minimum wage and overtime allegations. 

In its brief, the DOL told the Second Circuit that the District Court in Hearst used the wrong test for determining whether an intern is an employee under wage and hour law. The DOL urged the Court to apply its own 6-part test rather than the “totality of the circumstances” or “primary benefit” test when evaluating whether or not interns should be paid.  The brief stated that the “subjective” totality of the circumstances test would make it “more difficult for both employers and interns, as well as courts, to determine whether interns are employees entitled to the protections of the FLSA.” 

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