As the Court of Appeals for the Second Circuit prepares to hear argument and ultimately rule in the consolidated appeal involving former interns for Hearst Publishing and Fox Searchlight seeking minimum wage under the FLSA, the Court received amicus submissions from several organizations, including the U.S. Chamber of Commerce, the largest employer association.

The Chamber’s brief, available here, does not cite extensively to legal authority (in part due to a paucity of authority on the issue), though it does cite a recent leading case from the Court of Appeals for the Sixth Circuit which found vocational students were not “employees” under the Act.  Rather, the Chamber’s brief focuses on a series of articles from various publications attesting to the benefits of internships for the businesses who utilize them, the candidates who fill the positions, and the economy at large.  These articles provide substantial support for the position that internships are: one of a business’ best recruiting tools to ensure access to talent and continuity in retaining that talent; an intern’s best tool in finding lasting, meaningful employment; and, there is no evidence to support the intern Plaintiffs’ position that intern programs are used to displace paid labor.  The Chamber urges the Court to adopt the “primary benefit” test utilized by Judge Harold Baer in Wang v. Hearst, and disregard the conjunctive (and impractical) six-factor test used by the DOL and adopted by Judge William Pauley in Glatt v. Fox.

While the Second Circuit’s decision will go a long way towards shaping intern programs within its jurisdiction (i.e., in the states of New York, Connecticut and Vermont), the intern question remains unsettled in many jurisdiction, especially since the Supreme Court declined to hear an appeal from unsuccessful Florida-based interns.  Businesses must analyze any internship program and potential new group of interns in light of prevailing law at federal and state level.