Glatt v. Fox Searchlight Pictures, Inc.: Moving Towards a More Flexible Approach to the Classification of Unpaid Interns Under the Fair Labor Standards Act

Michael Pardoe

Internships have become an integral component of the modern hiring process in the United States. Between 1981 and 1991, the amount of college graduates who participated in an internship during their time in school rose from three percent to thirty-three percent. Recent numbers from a 2015 survey of college graduates indicate that this number has risen to around sixty percent of college students. What could have caused this massive spike in internships? The short answer to this question is that modern internships are increasingly being used as a major hiring tool for both students and employers. College students who participate in an internship or co-op are much more likely to receive job offers right out of college than those who do not. Unfortunately, no internship is created equal. While some indeed pay quite well, around forty percent of internships in the United States are reportedly unpaid. Many view unpaid internships as problematic, however, based on a belief that interns should be considered to be “employees” owed minimum wages under the Fair Labor Standard Act (“FLSA”). A number of current and former unpaid interns argue that they are due wages as employees under the FLSA. The Department of Labor Wage and Hour Division (“WHD”) has failed to provide a formal agency rule dealing with interns and the FLSA, leading to a circuit split regarding the appropriate test to use to determine whether an intern should be considered an employee for FLSA minimum wage provisions.8 Needless to say, the increasingly contentious nature of this debate necessitates a universal framework for analyzing unpaid interns under the FLSA. Unpaid interns must not be exploited, and employers should understand what constitutes a permissible unpaid internship scenario.