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David E. Schwartz and Risa M. Salins

On Jan. 5, 2018, the U.S. Department of Labor (DOL) announced it would replace its six-part test for determining when an intern is entitled to minimum wages and overtime pay as an employee under the Fair Labor Standards Act (FLSA), and adopt instead a flexible “primary beneficiary” test which has been applied by four federal courts of appeals. In short, the DOL’s new test allows courts to examine the economic realities of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship.

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