Washington Law Review

Comment

Employee, Volunteer, or Neither? Proposing a Tax-Based Exception to FLSA Wage Requirements for Nonprofit Interns After Glatt v. Fox Searchlight

June 19, 2017 | 92 Wash. L. Rev. 1071

Abstract: The Fair Labor Standards Act (FLSA) mandates compliance with various requirements, including minimum wages, for individuals classified as “employees.” But courts have grappled with the definition of “employee” for decades. They have struggled to determine whether individuals who are not classified as employees by their employer and are instead labeled “trainees,” “interns,” “externs,” or otherwise must be paid fair wages under the FLSA. This question became more pronounced amid the rise of unpaid internships for students and recent graduates in the post-2008 recession years. In Glatt v. Fox Searchlight, the Second Circuit became the first federal court of appeals to specifically address the unpaid intern issue in the context of for-profit employers, holding that interns were employees if the employer received the “primary benefit” from the relationship. The case did not touch on unpaid nonprofit internships, which some scholars believe are—and should be—exempt from employee tests under a broad nonprofit exception. However, recent scholarship exploring the Second Circuit’s logic in Fox Searchlight indicates that unpaid nonprofit internships may not be so safe for employers after all, and suggests that these internships should not be exempt from FLSA requirements for public policy reasons.

This Comment argues that some, but not all, nonprofits deserve differential treatment with regard to internships given their budgetary constraints and the important role they play in society. It attempts to balance the policy concerns on both sides of the issue by proposing three narrow exceptions which track the Internal Revenue Code’s treatment of nonprofit organizations: one for interns supporting exempt purpose activities; another for interns working at organizations classified as public charities; and the last for interns at small nonprofits, as determined by their annual tax filing. This tax-based approach would be easy for nonprofits to apply and current law supports it. Finally, this Comment calls for legislative action to amend and clarify the FLSA by adopting one of these three exceptions.

Download Full Comment