On the tenth day of Christmas my true love gave to me ten lords-a-leaping. I truly am at a loss for words as to this gift, but appreciate the lords' energy and enthusiasm, similar to the appreciation I feel for interns on their first day in the position. The last year has been filled with a plethora of unpaid interns jumping at the chance to be class action plaintiffs in minimum wage lawsuits. Just last month, a federal district court in New York approved a $5.85 million settlement under the FLSA and New York state law as a result of failure to pay minimum wage to approximately 7,500 interns over the course of several years, Ballinger v. Advance Magazine Publishers, Inc. (S.D.N.Y. Nov. 13, 2014). The FLSA class was made up of individuals who held internships at Conde Nast between June 13, 2010, and November 13, 2014, while the New York state claim extended to interns employed after June 13, 2007. 

While Ballinger was a large case with much notarity—Plaintiff class members included interns fromW Magazine and The New Yorker—there are a multitude of other currently pending claims of a similar nature. The Second Circuit currently has two appeals—Glatt v. Fox Searchlight Pictures, Inc.and Wang v. Hearst Corporation—in which two different Southern District of New York judges adopted different tests to decide whether an intern had been properly classified as unpaid under state and federal law. 

Last year, following the Southern District of New York’s decision in Glatt v. Fox Searchlight, we discussed the test used under the FLSA to determine whether an internship may be unpaid. Because of the number of claims we are currently seeing in this arena, the test bears repeating:

  • The internship is similar to training that would be given in an educational environment;
  • The internship experience is for the intern’s benefit;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the intern’s activities;
  • The intern is not entitled to a job when the internship ends; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Thus, while your interns may be leaping, you should be just about tripping over them as you attempt to perform tasks that otherwise would be unencumbered—that is if you are not paying them.