United States: Eleventh Circuit Adopts And Clarifies "Primary Beneficiary" Test For Unpaid Interns Under The FLSA

On September 11, 2015, the US Court of Appeals for the Eleventh Circuit handed down a landmark decision clarifying the circumstances under which unpaid interns are entitled to receive compensation under the Fair Labor Standards Act (FLSA). The Eleventh Circuit endorsed the Second Circuit's "primary beneficiary" test, which was the subject of our client alert in July. Although these two decisions are not binding precedent throughout the United States, any business in this country with an internship program needs to be aware of them and should monitor this rapidly evolving area of the law.

In Glatt v. Fox Searchlight Pictures, the US Court of Appeals for the Second Circuit rejected the FLSA overtime claim of a pair of unpaid interns who had worked for Fox on the 2010 film "Black Swan."  The Second Circuit rejected the lower court's reliance on the US Department of Labor's (DOL) six-factor test for determining when an intern is an "employee" under the FLSA,1 adopting instead the "primary beneficiary" test that looks at whether "the intern or the employer is the primary beneficiary of the relationship."  The Second Circuit then set out seven non-exclusive factors for courts and employers to consider when determining to whose benefit the internship inures:

  1. The extent to which the intern and the employer understand that there is no expectation of compensation.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment.
  3. The extent to which the internship is tied to the intern's formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern's academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship's duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern's work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

On September 11, 2015, the US Court of Appeals for the Eleventh Circuit became the first court since Glatt to endorse this framework in Schumann et al. v. Collier Anesthesia, P.A. et al.2   In Schumann, 25 former student registered-nurse anesthetists brought a claim under the FLSA for unpaid minimum wages and overtime incurred in connection with a clinical curriculum that was required by law before the students could acquire their degrees.  The lower court granted the defendants summary judgment on the grounds that the plaintiffs could not satisfy each element of the DOL's six-part test.  Endorsing the Second Circuit's Glatt reasoning in whole, the Eleventh Circuit reversed, rejecting the DOL's six-part test as "too rigid" for today's modern internship, and instead adopting the "primary beneficiary" test set out by the Second Circuit.

In so doing, the Eleventh Circuit particularly fleshed out the fourth and fifth Glatt factors.  With regard to the fourth factor, the court noted that, where "the clinical training and the academic commitment are one and the same," one must "account for whether a legitimate reason exists for clinical training to occur on days when school is out of session."  As to the fifth factor relating to the length of the internship, the Eleventh Circuit recognized that "designing an internship is not an exact science," and recommended that courts focus their attention on "whether the duration of the internship is grossly excessive in comparison to the period of beneficial learning."  The court therefore rejected a quantitative approach of looking at whether the internship is longer than "absolutely necessary" to accomplish the educational and experiential goals, adopting instead a qualitative approach of looking at the nature of the intern's daily schedule.

The court also rejected an "all-or-nothing" approach and envisioned a scenario where a portion of the student's efforts could constitute a bona fide internship, whereas another portion of the intern's work could be considered the work of an "employee" if the putative employer takes unfair advantage of the intern.  In the context of an internship required for an academic degree and professional licensure and certification in a medical field, for example, the court said a putative employer "who requires an intern to paint the [putative] employer's house in order for the student to complete an internship of which the student was otherwise the primary beneficiary" would be transforming the work of the intern into that of an "employee."  In that scenario, the court said the student would not be considered an "employee" for work performed "within the legitimate confines of the internship but could qualify as an 'employee' for all hours expended in painting the house, a task so far beyond the pale of the contemplated internship that it clearly did not serve to further the goals of the internship."

In the end, the court did not take a position as to whether the nursing students were employees under the FLSA, and instead remanded the case back to the trial court for further proceedings consistent with the "primary beneficiary" approach.


  • Although there still remains a question as to whether the "primary beneficiary" test applies nationwide, there is clearly a trend in that direction.  Other circuits may choose to follow this trend, but are not required to do so.  More importantly, the DOL's six-factor test remains its official guidance and will likely be applied by the DOL in any administrative enforcement proceedings.
  • Employers should continue to audit their current unpaid internship programs to make certain the programs comply with both the "primary beneficiary" test, as articulated by the Second and Eleventh Circuits, and the DOL's six-factor test.  This includes not having unpaid interns displace regular employees, ensuring that the unpaid internship is tied to a formal educational program, and entering into a written agreement with the intern to memorialize the understanding that there is no expectation of remuneration during the course of the internship, nor is there a promise of permanent employment following the end of the internship.  Additionally, in light of the Eleventh Circuit's decision, employers should also examine the specific tasks interns are undertaking to ensure that all or part of their tasks are not "beyond the pale" of the contemplated internship.

The US employment and labor team at Dentons is ready to help you navigate this complicated area of the law, audit your current unpaid internship programs, and handle any dispute that may arise related to the same.


1. DOL Fact Sheet #71, available at http://www.dol.gov/whd/regs/compliance/whdfs71.htm.

2. A copy of the decision is available here: http://media.ca11.uscourts.gov/opinions/pub/files/201413169.pdf and at 2015 WL 5297260.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
24 Oct 2017, Seminar, Washington, DC, United States

The Dentons Forum for Women Executives invites you to join us for a luncheon featuring guest speaker Liza Mundy, journalist and author. Ms. Mundy recently released her latest book, Code Girls, the riveting untold story of more than 10,000 spirited young American women who cracked German and Japanese codes to help win World War II.

27 Oct 2017, Seminar, New York, United States

Please join us for a milestone event, our 10th annual CLE Seminar for In-House Counsel.

1 Nov 2017, Seminar, Washington, DC, United States

Celebrate the 58th anniversary of Dentons' Government Contracts practice

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.