The U.S. Department of Labor announced Friday that it was abandoning the six-factor test it had previously used for determining whether interns are employees for purposes of the Fair Labor Standards Act, and that it was now adopting the “primary beneficiary” test favored by several U.S. Courts of Appeals.
As we discussed recently, the Second Circuit in Wang v. The Hearst Corporation, No. 16‐3302 (2d Cir. Dec. 8, 2017), and the Ninth Circuit in Benjamin v. B&H Education, No. 15-17147 (9th Cir. Dec. 19, 2017), had recently rejected the DOL’s six-factor test in favor of the “primary beneficiary” test, which focuses more on the economic realities of the relationship and examines, among other factors, whether the intern or the employer is the primary beneficiary of the relationship.
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