WHEN IS AN INTERN AN EMPLOYEE?

“In Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015), we addressed the application of certain federal and state employment laws to activities performed in a commercial setting by temporary “interns.” We applied a “primary beneficiary” test: if, under certain enumerated circumstances, the intern is the “primary beneficiary” of the relationship, then the host entity is not the intern’s employer and has no legal obligation to pay compensation under those laws; if, on the other hand, the host entity is the “primary beneficiary” of the relationship, then the entity is an employer and federal and state employment laws—in particular, the Fair Labor Standards Employment Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), and Articles 6 and 19 of the New York Labor Law §§ 190, 650 et seq. (“NYLL”)—impose compensation obligations.

In the case at bar, we consider the applicability of this test to individuals enrolled in a for-profit vocational academy who are preparing to take a state licensure examination and who must first fulfill state minimum training requirements. These individuals fulfill those requirements by working under Academy supervision for a defined number of hours, without pay. We determine that the Glatt test governs in the for-profit vocational training context, and we further conclude that here, the plaintiff, former student of the Academy was the primary beneficiary of the relationship, thus excusing the latter from potential compensation obligations under FLSA or NYLL related to plaintiff’s limited work there as a trainee.”