Glatt v. Fox Searchlight Pictures, Inc., No. 11-CV-6784 (S.D.N.Y. Sept. 17, 2013) (Pauley, J.): Intern misclassification lawsuits remain on the rise in New York and elsewhere, and they continue to create thorny questions of law. In the Southern District of New York, a second decision regarding intern classification was certified for immediate appeal to the Second Circuit Court of Appeals. The plaintiffs in Glatt, unpaid interns with respect to the film “Black Swan,” alleged that they were “employees” under the Fair Labor Standards Act and New York Labor Law, and thus subject to minimum wage and overtime laws. As we covered in the June 2013 issue of the New York eAuthority, Judge Pauley granted the interns’ motions for class certification and partial summary judgment, thereby reaching a conclusion opposite to that of Judge Baer in Wang v. Hearst Corp. In light of the conflicting decisions, the Wang court certified for immediate appeal its decision to the Second Circuit. Now, the Glatt court has done the same. The disagreement centers upon Judge Pauley having adopted the U.S. Department of Labor’s six-factor test for determining whether interns were employees or exempt trainees; whereas the Wang court concluded that the determination should be based on a “totality of the circumstances,” including who is the primary beneficiary of the relationship.

The Second Circuit has yet to decide whether to take either appeal, but it will likely to do so given the conflicting opinions and the number of similar cases brought in New York. Absent regulatory guidance or case law to the contrary, employers should ensure that their unpaid internship programs meet the criteria set forth by the New York State Department of Labor in its December 21, 2010 opinion letter and the six factors set forth by the U.S. Department of Labor in its Fact Sheet. We will continue to monitor this issue as it develops.