Centre partner David Warner was interviewed and quoted extensively in an October 26, 2015 Special Report published by Bloomberg BNA “U.S. Supreme Court May Ultimately Have the Final Word on the Future of Unpaid Internships in the Private Sector“. The FLSA Litigation Trackerarticle focused on the issue of unpaid internship programs that is currently moving through the federal appellate courts.
Regarding the Second Circuit’s recent decision in Glatt v. Fox Searchlight and that court’s rejection of the Department of Labor’s rigid seven-factor test for unpaid internships, Warner commented that the court was correct in focusing on the question of whether the intern or the employer was the primary beneficiary of the internship as the proper central inquiry of the case. He noted that, “This concept illuminates the distinction between an employee on the one hand and a trainee/intern on the other.” That said, Warner did express reservations about the Second Circuit’s reliance upon the connection between an internship and an individual’s formal educational endeavors. “I anticipate that other courts may not necessarily agree with the circuit court’s conclusion that … a central feature of the modern internship [is] the relationship between the internship and the intern’s formal education.” Warner noted that as more courts move away from the DOL’s seven-factor test, subsequent litigation around unpaid internships is likely, “‘The absence of a clear standard creates uncertainty, and uncertainty in the law tends to create opportunities for litigation, so I would ultimately anticipate an uptick in scrutiny and litigation over unpaid intern programs.’’
Reproduced with permission from FLSA Litigation Tracker, FLLTSR 2015:004 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>