Not Liking Your Internship ≠ Compensable Work

By Shelby S. Skeabeck - Shawe Rosenthal LLP

November 16, 2017

I was flabbergasted by a recent case in which an intern sued a nursing and rehabilitation center because she was unhappy with her internship!  That’s right, she was so displeased with what she did in her internship that she brought a federal case!

In Sandler v. Benden, et al., the plaintiff was a student at Long Island University in the Master of Social Work program. As part of the program, she was placed in an unpaid internship at a nursing and rehabilitation center. According to her Complaint, the student was dissatisfied with the internship because she performed “secretarial tasks” and “grunt work,” including filing, typing, photocopying, fetching food, wheeling patients and the like. (Unfortunately, there are no further details on other what other “grunt work” she had to perform. But I can only imagine….) All in all, she claimed that she did not receive any “educational value” from her internship.  She wrote a memo to the nursing center about her displeasure with the internship and having to perform “grunt work.” She was then dismissed from the nursing center and expelled from her university.

Under the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL), an employee must be paid for the work they perform, but an intern does not. So the student sued the nursing center, claiming that she was actually an employee, not an intern, and should have been paid for the “grunt work” that she had performed. The trial court dismissed her claims, and the student appealed the dismissal of her NYLL claim to the U.S. Court of Appeals for the Second Circuit.

The Second Circuit applies a “primary beneficiary test,” which looks at who is the primary beneficiary of the relationship (intern or employer), to determine whether an individual is an employee (who gets paid) or an intern (who does not). Under prior case law, there are generally seven factors (or more or less, depending on the circumstances) that should be examined by the court in making its determination. In the present case, the Second Circuit found that all but one of the factors weighed in favor of the finding that the student was, in fact, an intern:

• Expectation of compensation: There was no expectation of compensation for her work, and in any case, the university required that students complete an unpaid internship

• Training similar to that that would be received in an educational environment: The student received educational training during her internship. She was assigned one individual client and received one group assignment.  She also participated in a “field work class,” and her internship responsibilities included writing updates regarding her experiences as a social work intern.

• Integration of the internship with the formal education program: The student would have received academic credit towards her degree, if she had satisfactorily completed the internship.

• Whether the internship corresponds with the academic calendar: The duration of the student’s internship coincided with and was limited to the university’s academic calendar.

• The duration of the internship: The student only worked 16-17 hours per week.

• Entitlement to a paid position at the end of the internship: She was never promised a paid position.

The last factor is whether the work complements or displaces the work of current employees. The student argued that the work that she was required to perform replaced that of a secretary or assistant and failed to provide significant educational benefits to her. However, the Second Circuit found that this factor was “a wash” because the fact that an employer “merely passes drudge work on to interns” is not dispositive, and employers are permitted to receive some immediate advantage from unpaid interns.

So, just like the rest of us, interns are not immune from “grunt” or “drudge” work. And simply because someone doesn’t like what they did in an internship doesn’t mean that they are entitled to pay!