Will New York Adopt the DOL’s New Intern Test?

We wrote recently on the Second Circuit’s holding against former Hearst interns who claimed that the corporation violated federal and state wage and hour laws by not paying them. Shortly following the decision, the Department of Labor (DOL) issued “Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act,” a set of guidelines which outlines seven factors to help courts determine whether students working for “for-profit” employers are entitled to minimum wages and overtime pay.

For now, it is uncertain whether the New York State Department of Labor (NYSDOL) will adopt the seven-standard “primary beneficiary” test outlined by the DOL. The NYSDOL currently incorporates the DOL’s former six-part test for determining whether an individual is an intern or an employee. In applying the test, New York courts have focused on whether an internship reflects the kind of instruction received in a classroom and whether the employer benefitted economically from the intern’s work. The NYSDOL also requires the following six additional factors to be met in order for a position to be classified as an internship:

(1) the trainees or students are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes;

(2) any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity;

(3) the trainees or students do not receive employee benefits;

(4) the training is general, and qualifies trainees or students to work in any similar business—it is not designed specifically for a job with the employer that offers the program;

(5) the screening process for the internship program is not the same as for employment, and does not appear to be for that purpose—the screening only uses criteria relevant for admission to an independent educational program; and

(6) advertisements, postings or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.

The inconsistency between the DOL standards and New York’s state standards may well remain unchanged, or the NYSDOL could update its test to reflect federal guidance.

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