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Intern or Employee?


In order to fall under the protection of laws applicable to employees, you must first be considered an employee. That may seem like an easy thing to establish, but in reality, the determination that someone is an employee can be very difficult to make. One common issue that arises is whether or not an individual is an independent contractor. Another, involves internships. Determining whether someone is an intern or an employee can be crucial to an employment rights case.

Who is receiving the primary benefit from the employment?

The 2nd Circuit has taken a look at this issue in a case against Fox Searchlight. Several interns who worked on the film "Black Swan," and in the corporate office as well, brought pay claims against the company. In determining whether these individuals were interns, the court needed to first decide whether they were "primary beneficiaries."

If the worker is the primary beneficiary, meaning she is receiving valuable training or academic credit, for example, then she is most likely an intern. That would mean she would not be entitled to compensation. However, when the primary beneficiary is the employer, in that the worker is performing work that would usually be done by an employee, then she may be considered an employee, for purposes of wages.

Seven factors to consider

In order to make this determination, the 2nd Circuit identified the following 7 factors to be considered:

● Whether there's an expectation of compensation

● If the training received is similar to that given in an educational setting or clinic

● How much the internship is tied to the intern's formal education program or coursework

● Whether the internship accommodates the intern's academic commitments

● The length of the internship and whether its duration is limited to a set learning period

● Whether the interns work displaces paid employees

● The understanding of both intern and employer concerning compensation

Clearly, the facts in each case would have to be analyzed in relation to these factors. This is not by any means an exhaustive list, but generally a guide to conducting the necessary analysis.

The 11th Circuit's analysis

In a case involving students working as registered nurse anesthetists, the 11th Circuit considered the amount of time the interns worked in the clinical program, noting that the duration of the internship was "grossly excessive in comparison to the period of beneficial" work. This fact, led to the understanding that a worker may be an intern for certain a period of the time and an employee for the rest.

Determining employment status can be a complicated task

Due to the complicated nature of determining employment status, especially with interns, it is important to contact an experienced Birmingham employment attorney. Every case must be determined based on the specific facts, the unique circumstances involved in the employment arrangement. An experienced employment attorney can help you in making that determination, and deciding whether you have a potential wage and hour claim.

If you feel your wage and hour rights have been violated, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Michel | King , either online or by calling us at (205) 265-1880.

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