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Different courts can differ widely in how they apply the seven factors of the “primary beneficiary test”, explained in Question 1. This text is a flexible test, with no single factor deciding the case. Thus, whether an intern is an employee under the FLSA is decided based on the details of each specific case. Additionally, the factors listed apply to for-profit employers, and governmental and nonprofit organizations have more leeway to hire unpaid interns.
If you do not meet the criteria to be an intern based on the “primary beneficiary test”, explained above, you are actually an employee. This means that you are entitled to both minimum wage and overtime pay, as well as other employeee rights and benefits.
If you are a paid intern, or an employee who is called an intern, you should be subject to overtime laws. If you are an unpaid intern, you have fewer protections from the law, and may be legally asked to work long hours. If you are an unpaid intern and are working long hours, you should assess the criteria for unpaid internships, explained in Question 1 above, to determine whether you should be classified as an employee. If you are not an employee, you could consider whether the long hours are worth the learning experience you are receiving.
"If the intern performs work that benefits the employer and that would otherwise be performed by a regular employee, it is unlikely to be an internship. If the intern performs work that primarily benefits the intern and does not do work that would otherwise be performed by an employee, it is more likely to be an internship. Interns are not a way to get free labor."
–Brandon Ruiz | Hennig, Ruiz & Singh
from Drug and Alcohol Dependence Journal