Part I of this comment provides an overview of prevailing agency and judicial interpretations of unpaid internships. Part II describes recent internship litigation and the trend towards courts abandoning the Wage and Hour Division's six-factor test in favor of a more expansive primary beneficiary test. Part III suggests that Fact Sheet #71 is an outdated model that is inapplicable to contemporary internships. The Wage and Hour Division's six-factor test lacks the "force of law" and should not warrant undue judicial deference. Alternatively, the primary beneficiary test, articulated in the Second Circuit's holding in Glatt v. Fox Searchlight Pictures, Inc. and the Eleventh Circuit's holding in Schumann v. Collier Anesthesia, P.A., encompasses a more contemporary and flexible approach that protects employee interests while promoting the existence of post-graduate and academic internships in the modern, competitive job market. Consistent with its authority under the Administrative Procedure Act ("APA") the Department of Labor ("DOL'') should revoke Fact Sheet #71 and promulgate a binding legislative rule, after notice and comment, incorporating employer and employee interests. The Agency action would remedy the circuit split and provide employers interested in offering internship programs greater predictability regarding compliance with the FLSA.
Response or Comment
Rachel P. Willer, Waging the War Against Unpaid Labor: A Call to Revoke Fact Sheet #71 in Light of Recent Unpaid Internship Litigation, 50 U. Rich. L. Rev. 1361 (2016).