DOL Replaces Obama-era Intern Test with Standard Favored by Courts

January 12, 2018

The Department of Labor has replaced its 2010 test for determining whether interns qualify as employees under the Fair Labor Standards Act with the so-called "primary beneficiary" standard that several appellate courts have adopted.  In its announcement, DOL noted that four federal appellate courts have expressly rejected its 2010 test and that it would now align its standard with recent case law.  According to the new DOL Fact Sheet, going forward Wage and Hour will use the seven-factor test that was laid out by the Second Circuit Court in 2015, including whether there's a clear understanding that no expectation of compensation exists, whether interns receive training similar to what they would get in an educational environment, and to what extent the internship is tied to a formal education program.