The Court of Appeals for the Eleventh Circuit last week adopted the Second Circuit’s “primary beneficiary” test as the appropriate test for determining whether an unpaid clinical intern was truly an “employee” within the meaning of the FLSA. Schumann v. Collier Anesthesia, P.A., 2015 U.S. App. LEXIS 16194 (11th Cir. 2015).
In rejecting the test set forth in the Department of Labor’s “trainee” fact sheet, a test premised on the specific facts of a 1947 Supreme Court case, the Eleventh Circuit noted: “with all due respect to the Department of Labor, it has no more expertise in construing a Supreme Court case than does the Judiciary.” Adopting the Second Circuit’s articulation of a non-exhaustive set of considerations, the Eleventh Circuit observed that the best way to discern the primary beneficiary in a relationship where both the intern and the employer may obtain significant benefits is “to focus on the benefits to the student while still considering whether the manner in which the employer implements the internship program takes unfair advantage of or is otherwise abusive towards the student.” Notably, the Court observed that under such test “the mere fact that an employer obtains a benefit from a clinical internship does not mean that the employer is the ‘primary beneficiary’ of the relationship.”
Providers of internships should continue be vigilant in reviewing their classifications of individuals as employees or unpaid interns and in structuring their internship programs.