Netflix is (figuratively) on fire this summer, as it has released tons of new content clearly calculated to keep us indoors during the (literal) heatwave. Season two of Workin’ Moms was released on July 25, 2019 (see my Workin’ Moms post here), season three of Stranger Things was released on July 4, 2019 (see my Stranger Things post here), and season five of Black Mirror, which consisted of three new episodes, was released in June 2019.

Black Mirror, a dark and twisted Netflix gem, absolutely takes the cake, in my mind, as far as TV shows that haunt your dreams go—“White Bear” and “Crocodile” have certainly left a lasting impression. However, there are love stories like “Hang the DJ” and “San Junipero” that leave no dry eyes in the room. Although there are so many technological and sociological issues present in Black Mirror’s episodes, I struggled to find one to serve as the focus of my EntertainHR post. To my delight, season five’s “Smithereens” was released in early June 2019.

The Hostage Is an Intern

“Smithereens” is set in present-day London and follows a rideshare driver, Chris (played by Andrew Scott), who abducts his passenger Jaden (played by Skyfall’s Damson Idris), an employee of the social media company Smithereen, at gunpoint. The rationale of Jaden’s abduction—to hold an employee of Smithereen hostage in order to speak with its CEO, Billy Bauer (played by Topher Grace)—falls to pieces when Jaden discloses to Chris that he is merely an intern.

Chris is obviously disturbed by Jaden’s revelation and assumed that Jaden was more than an intern, partially because he was wearing a business suit. Jaden responded that it was his first week. After a tense standoff, it was determined that Jaden was “important enough” to get Bauer on the phone, although he was only 6 days into his 10-day silent retreat.

“Smithereens” got that part right. Interns are invaluable assets to companies—from both the interns’ and the companies’ perspectives. The intern gets work experience, and depending on the outcome of the “Primary Beneficiary Test,” the company can reap the benefit of the intern’s performance but won’t have to pay the intern to obtain this experience.

‘Primary Beneficiary Test’

As my colleagues David Kim and Priya Amin explained in this FordHarrison legal alert, the Fair Labor Standards Act (FLSA) requires for-profit employers to pay employees for their work. The U.S. Supreme Court has not yet addressed whether interns are employees under the FLSA. However, the Department of Labor (DOL) has endorsed the following nonexhaustive, seven-factor “Primary Beneficiary Test,” which was established by the 2nd Circuit in Glatt v. Fox Searchlight Pictures, Inc., and followed by the 9th and 11th Circuits:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The “Primary Beneficiary Test” focuses on what the intern receives in exchange for his or her work, and it gives the courts flexibility to examine the economic realities between the intern and the employer.

Was Jaden Truly an Intern?

Going back to “Smithereens,” Jaden was sent by a stylist to take outfits to an executive who was at the airport. If Jaden interned in the United States and his tasks consisted mostly of running errands, picking up dry cleaning, and fetching coffee, these tasks don’t appear to be tied to an educational benefit (and appear to be tasks of a paid personal assistant), and Jaden would likely be deemed an employee.

Conversely, however, maybe Jaden was a fashion major and helped the stylist select the executive’s outfits; maybe he was headed to the airport to deliver the outfits, help the executive select which outfit to wear, and select the executive’s jewelry. In that case, there may have been an educational benefit to Jaden’s services, and he would be deemed an intern.

Bottom Line

If employers use the services of unpaid interns, they should take care to prescribe the parameters of the intern’s role to ensure the maximum educational experience. Whether unpaid interns perform tasks that are primarily educational and that provide them with beneficial learning—rather than the intern’s clothing—will be the ultimate predictor of whether an intern is an employee for purposes of the FLSA.