One of These Interns Is Not like the Others: How the Eleventh Circuit Misapplied the “Tweaked Primary Beneficiary” Test to Required Clinical Internships

Today’s ever-changing business environment continues to challenge the traditional educational model, further blurring the line between learning and labor. This has resulted in great uncertainty as to the proper legal treatment of the student intern, specifically the unpaid student intern. This Note is intended to introduce a new perspective to the unpaid internship debate and highlight the need for courts to focus on the specific type of internship at issue before formulating an approach to best assess whether the intern should be classified as an employee entitled to wages. Part I of the Article will discuss the Fair Labor Standards Act (“FLSA”) and the development of the “trainee” exception formulated by Walling v. Portland Terminal Co. The key question in any unpaid internship scenario is whether the intern should be deemed an employee under the FLSA and thus entitled to wages and overtime. Part II explores the varying and inconsistent tests put forth by the Department of Labor (“DOL”) and/or used by courts o determine whether a person should be deemed an employee under the FLSA and therefore entitled to wages. Part III then addresses the most recent test formulated by the Second Circuit and adopted by the Eleventh Circuit and suggests that neither court considered key differences between internship scenarios in deciding upon the proper test. Part IV expands on this suggestion by identifying several reasons why the test adopted by the Eleventh Circuit is not appropriate to address the narrow, but prevalent clinical internship scenario in which the internship is both a required component of the academic program and mandated for professional certification and licensure. Part V ultimately concludes that the clinical intern is a student engaged in required experiential learning as a component of an overall academic curriculum and professional certification. Because a student is not a worker, the courts should find that the clinical intern does not qualify as an employee under the FLSA and is not entitled to wages