In Schumann v. Collier Anesthesia, P.A., the Eleventh Circuit Court of Appeals (covering Florida, among other states), declined to following the federal Department of Labor's six-factor test for assessing whether a trainee or intern is an "employee" entitled to minimum wage and overtime under federal law. The court observed the test was too rigid and outdated, and failed to take into account the modern economy or the circumstances of the particular relationship. Instead, the court adopted the "primary beneficiary" test articulated in Glatt v. Fox Searchlight Pictures, which promoted consideration of the full circumstances of the work, identifying a non-exhaustive list of potentially relevant considerations (see July 2015 FEB). The Eleventh Circuit remanded the matter for consideration by the district court.
This is now the second circuit to adopt the "primary beneficiary" approach. However, it is important to remember that some states (including California) enforce more employee-friendly tests and it remains to be seen how this new approach may compare to analysis in those states. Thus, employers should continue to assess legal risk very carefully when considering an unpaid internship.
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