Lauren Hand


Under the Fair Labor Standards Act (“FLSA”), individuals who qualify as employees are entitled to the federal minimum wage. Because the statute itself gives little guidance about who meets the FLSA definition of an employee, courts generally determine employee status by applying the economic reality test, which assesses the economic circumstances of the relationship and tends toward broad inclusivity. The Supreme Court, however, created a caveat in 1947 in Walling v. Portland Terminal, holding that trainees might be uniquely excluded from FLSA employee status and its attending benefits. The trainee exception, as it has since become known, has expanded in the last 76 years. In that time, the exception has been extrapolated to a growing cohort that scarcely existed at the time of Walling: interns. As the intern population has grown, so have the number of tests attempting to determine the employee status of interns under the FLSA. A few have gained traction, and one has risen to the top: the primary beneficiary test. This Comment reviews the trajectory of internships as engines of opportunity in the last several decades and the circuit split over the proper test for determining interns’ employee status. Ultimately, this Comment recommends that the Supreme Court take up the issue again and reject the primary beneficiary test. Instead, the Court should adopt a test backed by the tenets of Walling, the aspirations of the FLSA, and the realities of the modern-day intern economy: an objective, employer-focused cost-benefit approach.


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