24 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP 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.138 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.139 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.140 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.141 This test analyzes the economic realities of the relationship based on the following factors: 1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa. 2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions. 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. 138 Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 534-35 (2d Cir. 2016) (describing then Fact Sheet No. 71). 139 Id. 140 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); Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199 (11th Cir. 2015). 141 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), https://www.dol.gov/newsroom/releases/whd/whd20180105 (last visited Mar. 5, 2025).
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