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Do Internships Fall Under the Fair Labor Standards Act?


The Fair Labor Standards Act (“FLSA”) generally provides protections for employees to ensure they are entitled to a minimum wage and overtime pay. However, one category where these protections become muddled is where someone is employed as an intern with a company.  On the broadest level, the FLSA defines the word “employ” as someone who is “suffered or permitted to work.” This means that any covered and non-exempt individual who is “suffered or permitted” to work must be compensated pursuant to the FLSA for their employment. Specifically, these individuals must be paid minimum wage and must be compensated for overtime hours worked.

The Six-Factor Test for Internships

In the seminal case of Walling v. Portland Terminal Company, the U.S. Supreme Court provided some general limitations to interns being considered employees. Specifically, the Supreme Court said that a person cannot be considered an employee under the FLSA if they only work for their own interest and benefit. In April 2010, the U.S. Department of Labor (“DOL”)  published a six-factor test that would need to be met if an employer wanted to argue an individual was not an “employee” under the FLSA:

  1. The internship is solely for the benefit of the intern;
  2. The intern’s work does not replace other employees’ work, he merely works under direct supervision of existing employees;
  3. The intern may not be guaranteed a job after they conclude their internship;
  4. The intern and the employer have a mutual understanding that the intern is not entitled to wages for time worked during the internship;
  5. The internship simulates training that would occur in an educational environment; and
  6. The employer does not get any immediate benefit or advantage from the intern’s activities.

Application of the Six-Factor Test

Since 2010, several Florida courts have evaluated the DOL’s six-factor test in makings its determinations about whether an intern is an employee. In the 2013 case of Demayo v. Palms West Hosp., Ltd. Partnership, the U.S. District Court for the Southern District of Florida examined the claim of an intern who, as a graduation requirement, needed to complete an unpaid externship completing 125 surgical procedures. The court found that under these circumstances, the intern was not an employee, noting that the direct benefits of the externship flowed to the intern. Similarly, in the 2014 case of Schumann v. Collier Anesthesia, the U.S. District Court for the Middle District of Florida found that the interns were not employees where they understood they would not be compensated, the internship was a requirement for their graduation, and the internship benefits flowed to the plaintiffs. These cases both illustrate the importance of looking at the factors enumerated in the DOL’s test to determine whether an intern should be classified as an employee.

Reach Out to Us For Assistance

It can be challenging to determine whether you fall under the protection and entitlements of the FLSA, particularly if you are working as an intern for a company. The experienced Clearwater employment law attorneys at Dilla Employment Law, P.A. can help look at your particular internship and ensure you are receiving the compensation you deserve. Contact us today for assistance.


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