Member Article

Last week, the Second Circuit delivered a highly anticipated ruling on whether companies may continue to use unpaid interns. In what represents a clear victory for companies, the Court adopted a flexible “primary beneficiary” test to determine whether workers should be properly classified as interns or employees. The Second Circuit also made clear that the question of an intern’s employment status is a highly individualized inquiry, signaling that intern litigants will find it very difficult to obtain class or collective certification.

The interns in Glatt v. Fox Searchlight Pictures, Inc. had worked for the movie “Black Swan,” performing such tasks as copying documents, assembling furniture and taking out trash. In 2013, the Southern District of New York determined that the two named interns had performed compensable work and held that the company violated federal and state labor laws by treating them as unpaid interns instead of employees. That court also held that a third intern could prosecute her claims as a class and collective action.

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