Anyone who has ever worked in the entertainment industry knows that to make it to the top, you have to start at the bottom. And starting at the bottom means jumping at any internship you are offered in the hope of getting your foot in the door. However, the government seems to have a different view on internship expectations than the persons being “employed,” and even the employers themselves. In 2010, the U.S. Department of Labor (“DOL”) issued a fact sheet containing a six-factor test to help courts determine the difference between a paid employee and an unpaid intern.
However, there is currently no federally regulated definition of “intern.” The test determines whether a worker legally falls into the unpaid intern category, or whether their job description better categorizes them as an employee, thereby entitling the worker to minimum wage and other protections under the Fair Labor Standards Act of 1938 (“FLSA”). Unfortunately (or fortunately for the unpaid interns’ argument), the DOL test is not enforceable as law, and many courts thus use parts of the test as a way to determine liability. Coupled with the lack of enforcement by the DOL’s Wage and Hour Division (“WHD”), the test suggested by the DOL has little effect in helping interns seek justice.