Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

58 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP 2. Interns/Trainees a. The Federal Exemption for Interns The position of the DOL has changed as to when an intern or trainee is entitled to the minimum wage under the FLSA. From 2010 until January 2018, the DOL had followed a six-factor test set out in a 2010 Fact Sheet for determining whether an individual performing services for a for- profit entity is exempt from the federal minimum wage requirements as an intern or trainee. The six factors were: 1. The training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in an educational environment. 2. The internship is for the benefit of the trainees or students. 3. The trainees or interns do not displace regular employees, but work under their close supervision. 4. The employer derives no immediate advantage from the activities of the interns, and the employer’s operations may be actually impeded. 5. The interns are not necessarily entitled to a job at the conclusion of the internship. 6. The employer and the interns understand that the interns are not entitled to wages for time spent in the internship. 327 The position of the DOL in the 2010 Fact Sheet was that all six elements must be present for a worker to qualify as a trainee or intern. 328 Several courts of appeals rejected this six-factor test and instead analyzed whether the individual or the putative employer is the “primary beneficiary” of the relationship. 329 In response to these decisions, the DOL revised the Fact Sheet in January 2018 to abandon the six-factor test in favor of the primary beneficiary test. 330 This test analyzes the economic realities of the relationship based on the following factors: 327 Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 534-35 (2dCir. 2016) (describing then Fact Sheet No. 71). 328 Id. 329 See Glatt , 811 F.3d at 536-37; Solis v. Laurelbrook Sanitarium & Sch., Inc. , 642 F.3d 518 (6th Cir. 2011); Benjamin v. B & H Education, Inc. , 877 F.3d 1139 (9th Cir. 2017); S chumann v. Collier Anesthesia, P.A. , 803 F.3d 1199 (11th Cir. 2015). 330 U.S. Department of Labor, News Release, U.S. Department of Labor Clarifies When Interns Working At For-Profit Employers Are Subject to the Fair Labor Standards Act (Jan. 5, 2018) , ht tps://www.dol.gov/newsroom/releases/whd/whd20180105 ( last visited Sept . 24, 2021).