The Super Bowl isn’t the only major showdown coming this weekend.
On Friday morning, a three-judge Second Circuit panel will hear argument in two cases raising critical issues for the fate of internships in for-profit businesses: (1) Fox Searchlight’s appeal of the decision granting summary judgment and class certification to interns who worked on film productions and (2) the appeal by former Hearst Corporation interns whose motion for class certification was denied.
At issue in both cases is the test to be used to evaluate whether interns are “employees” under the FLSA or “trainees” who are exempt from minimum wage and overtime requirements. Under the common law “primary benefit” test, if the internship primarily benefits the intern rather than the employer, the intern is properly deemed a trainee and not entitled to compensation. The Department of Labor (“DOL”) has declared that internship status should instead be determined by a strict 6-factor test and that if each factor is not satisfied, the intern is entitled to compensation. The lower courts have applied modified versions of these tests and reached differing results.
We have written frequently on this topic (in May 2013, November 2013, and April 2014), but to tide you over until kickoff, we break down the matchup by looking at what the many friends of the Court have to say about the issue.
Five groups have filed amicus curiae briefs in the two appeals: the Secretary of Labor, the U.S. Chamber of Commerce, the Economic Policy Institute, Organized Labor (AFSCME, SEIU, CWA, UFCW), and the American Council on Education. Here is where each group stands on the key issues before the Court:
Click here to view table.
It is of course too soon to know whether the Second Circuit panel will be swayed by any of this. Given the DOL’s primary enforcement role under the FLSA, its views will surely be given respectful consideration and perhaps strong deference. But the amicus briefs come from a range of interested parties and reflect the importance of the internship issue to the various constituencies. As of this post, only the DOL has been allowed any argument time in addition to the parties.