Lesson 15: Is Rafa’s unpaid internship really a job? Educator guide

Looking for the editing

The story: An internship with a catch

Rafa is 18. He is in his first year of college, commutes to class and helps at his family’s shop. In April, a studio posts a listing on the campus job board: “Summer Editing Intern (unpaid).” The listing says the intern will run the customer inbox all summer. Rafa reads it twice, looking for the editing.

On Tuesday at 11:20 a.m., the studio answers his message. “Since interns get college credit, it’s totally legal for us not to pay,” the email says. The studio wants him to start right after finals.

At lunch, Rafa talks it over with Gia. She asks a sharp question: didn’t the studio pay someone to run the inbox last year? Yes, Rafa says. Their assistant did. Taking the internship would also cost Rafa paid shifts at the shop.

Your role is to check each part of the test before Rafa says yes.

A test with seven parts

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee. It asks who mainly benefits from the internship, the intern or the company. An intern who counts as an employee must be paid under the Fair Labor Standards Act. That is a federal law that sets minimum wage and overtime rules for most workers.

The test has seven factors. They include training, links to coursework or academic credit, the school calendar and how long the learning lasts. Academic credit is credit toward a degree that a school gives for approved work, such as an internship. Another factor asks whether the intern’s work adds to paid workers’ work or replaces it. No single factor decides the test.

So the studio’s email does not settle anything. Rafa put it well: “Credit is one factor out of seven. So that’s one. What about the other six?”

In Lesson 12, you compared facts to a court case. Here, you compare facts to a test, one factor at a time. Some facts point one way. The main job is the inbox, and a paid assistant did it last year. Other facts are missing. Who trains Rafa? How many hours a week? In Lesson 11, you learned that compensation is all the pay and benefits a worker receives. Here, the offer includes none.

Gia almost told Rafa to take it because it would look good. Then she stopped. “Easy for me to say,” she admits. She is not the one giving up a summer. She leaves the decision to him.

Real interns who sued

Two unpaid interns on the 2010 film Black Swan sued Fox Searchlight. They said they should have been paid. In 2015, a federal appeals court said the question is who is the primary beneficiary of the internship (LAist, July 2, 2015). That is the test used today.

Key terms in this passage

Primary beneficiary test

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee.

Fair Labor Standards Act

The Fair Labor Standards Act is a federal law that sets minimum wage and overtime rules for most workers.

Academic credit

Academic credit is credit toward a degree that a school gives for approved work, such as an internship.

Compensation

Compensation is all the pay and benefits a worker receives, including hourly rates, bonuses and overtime.

Real sources cited

• LAist (AirTalk), “Appeals court reverses ‘Black Swan’ interns’ victory over Fox,” July 2, 2015. Open the source (opens in a new tab)

An internship or an unpaid job?

The story: The work behind the title

Rafa, 18, is a first-year commuter who helps at his family’s shop after class. In April, a listing goes up on the campus job board: “Summer Editing Intern (unpaid). Join our fast-paced studio! You’ll run the customer inbox all summer, help with client files and get great exposure to the industry. College credit available.” Rafa reads it twice. The title says editing. The duties say inbox.

He writes to the studio. On Tuesday at 11:20 a.m., the reply arrives: “Since interns get college credit, it’s totally legal for us not to pay. We’d love for you to start right after finals.” Rafa pastes it into the group chat. Gia asks whether that is how it works. Rafa says he does not know yet and starts looking it up on the train.

At lunch, Gia, who fits café shifts around her own classes, asks the question that changes the conversation. Didn’t the studio pay someone to run the inbox last year? Rafa says their assistant did it. Gia also counts what the summer would cost him: shifts at the shop, the commute and a whole summer with no pay. “Exposure,” she points out, does not cover the train fare.

Your role is to check each factor of the test before Rafa says yes.

Applying a test factor by factor

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee. It asks whether the intern or the employer mainly benefits from an unpaid internship. If the intern is really an employee, the Fair Labor Standards Act applies. That is a federal law that sets minimum wage and overtime rules for most workers.

The Labor Department lists seven factors. They include training, links to coursework or academic credit, the school calendar and how long the learning lasts. Academic credit is credit toward a degree that a school gives for approved work, such as an internship. Another factor asks whether the intern’s work adds to paid employees’ work or replaces it. The test is flexible, and no single factor decides it. Calling a position an internship does not decide it. Neither does college credit, or an intern agreeing to no pay.

The new skill is applying a written test one factor at a time. It builds on Lesson 12, where you set fact patterns beside a precedent. Match each factor to a fact, and mark what is missing. On replacing paid work, the evidence is strong: a paid assistant ran the inbox last year. On academic credit, the listing says credit is “available,” but nobody knows yet whether Rafa’s school will grant it. On training and supervision, there are no facts at all. Rafa’s own summary is exact: credit is one factor out of seven, so what about the other six?

Lesson 11 gave you the word compensation, all the pay and benefits a worker receives. Here, the compensation is zero, and the cost to Rafa is real. His email to the studio can ask for the missing facts in writing: who trains him, what a normal week looks like, how many hours and whether this is the job the assistant did last year.

The case that set the test

Two unpaid interns on the 2010 film Black Swan sued Fox Searchlight, arguing that they should have been paid as employees. In 2015, a federal appeals court adopted the question of who is the primary beneficiary (LAist, July 2, 2015). The Department of Labor’s Fact Sheet #71 now lists the seven factors (U.S. Department of Labor, updated January 2018).

Unpaid internships are still common. PBS NewsHour reported that nearly half of U.S. interns were unpaid in 2022 and asked who can afford to take those jobs (PBS NewsHour, August 26, 2023).

Key terms in this passage

Primary beneficiary test

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee.

Fair Labor Standards Act

The Fair Labor Standards Act is a federal law that sets minimum wage and overtime rules for most workers.

Academic credit

Academic credit is credit toward a degree that a school gives for approved work, such as an internship.

Compensation

Compensation is all the pay and benefits a worker receives, including hourly rates, bonuses and overtime.

Real sources cited

• LAist (AirTalk), “Appeals court reverses ‘Black Swan’ interns’ victory over Fox,” July 2, 2015. Open the source (opens in a new tab)
• U.S. Department of Labor, Wage and Hour Division, “Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act,” January 2018. Open the source (opens in a new tab)
• PBS NewsHour (YouTube), “Why unpaid internships still exist despite hardships for young workers,” August 26, 2023. Open the source (opens in a new tab)

Seven factors and a summer

The story: Totally legal?

Rafa is 18, a first-year college student who commutes and helps at his family’s shop. In April, a studio lists a “Summer Editing Intern (unpaid)” position on the campus job board. The copy is upbeat: a fast-paced studio, great exposure to the industry, college credit available. The duties are narrower. The intern will run the customer inbox all summer and help with client files. Rafa reads the listing twice, looking for the editing, and does not find it.

When he writes to ask, the studio’s reply on Tuesday at 11:20 a.m. offers a legal conclusion. Since interns get college credit, it says, it is “totally legal” not to pay him. It also asks him to start right after finals.

Rafa does what the crew has learned to do. He checks. On the train, he finds that college credit is one factor among seven. At lunch with Gia, the facts get sharper. Gia asks whether the studio paid someone to do the inbox last year, and Rafa confirms that its assistant did. Gia counts the cost: shifts at the shop, the commute and a summer without pay. She also catches herself. She almost told him to take it because it would look good, and she realizes that is easy to say when she is not the one giving up the summer. When Rafa asks whether she can tell him it is illegal, she says no. She does not know that. She can tell him which questions the studio has not answered yet.

Your role is to check each factor of the test before Rafa says yes.

Reasoning with a multi-factor test

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee. It asks whether the intern or the employer mainly benefits from an unpaid internship. An intern who is an employee must be paid under the Fair Labor Standards Act, a federal law that sets minimum wage and overtime rules for most workers. The seven factors include training, links to coursework or academic credit, the academic calendar and the length of the learning period. Academic credit is credit toward a degree that a school gives for approved work, such as an internship. Another factor is whether the intern’s work complements paid employees’ work or displaces it.

The new skill is applying a legal test factor by factor. It extends Lesson 12, where you compared fact patterns to a precedent, and Lesson 11, where you compared two situations on the same terms. Gia’s question about last year is a Lesson 11 comparison. The inbox used to be a paid job. That fact bears directly on displacement.

Laid out factor by factor, the evidence is uneven. Displacement: a paid assistant did this work last year. Academic credit: listed as available, but Rafa’s school has not confirmed it. Training and supervision: no information. Calendar and duration: the studio wants him to start after finals and stay all summer, but gives no hours. A careful reader concludes that the studio’s claim is unsupported, not that the internship is illegal. The test is flexible, no single factor decides it and the facts that would decide it are missing. The test also has limits. It applies to for-profit employers, and state rules may differ.

Lesson 11’s term compensation, all the pay and benefits a worker receives, completes the picture. The offer pays nothing and costs Rafa paid shifts. His email will ask for the missing facts in writing, politely: who trains him, what a normal week looks like, the weekly hours and whether this is the assistant’s old job.

The courts, the data and the profession

The primary beneficiary test grew out of litigation. Two unpaid interns on the 2010 film Black Swan sued Fox Searchlight. The appeals court opinion lists their tasks, which included answering phones, taking lunch orders, making coffee, photocopying and filing (U.S. Court of Appeals for the Second Circuit, 2016). In 2015, the court held that the question is who is the primary beneficiary, and that is the test the Labor Department uses now (LAist, July 2, 2015; U.S. Department of Labor, Fact Sheet #71, updated January 2018).

The stakes are about access as well as law. PBS NewsHour reported that nearly half of U.S. interns were unpaid in 2022 (PBS NewsHour, August 26, 2023). NACE survey data show inequity in who gets paid internships (National Association of Colleges and Employers, August 8, 2023). NACE’s own ethics principles ask members to comply with “local, state, and federal” laws (NACE Principles for Ethical Professional Practice, 2025).

Key terms in this passage

Primary beneficiary test

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee.

Fair Labor Standards Act

The Fair Labor Standards Act is a federal law that sets minimum wage and overtime rules for most workers.

Academic credit

Academic credit is credit toward a degree that a school gives for approved work, such as an internship.

Compensation

Compensation is all the pay and benefits a worker receives, including hourly rates, bonuses and overtime.

Real sources cited

• U.S. Court of Appeals for the Second Circuit, via Justia, “Glatt v. Fox Searchlight Pictures,” 2016. Open the source (opens in a new tab)
• LAist (AirTalk), “Appeals court reverses ‘Black Swan’ interns’ victory over Fox,” July 2, 2015. Open the source (opens in a new tab)
• U.S. Department of Labor, Wage and Hour Division, “Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act,” January 2018. Open the source (opens in a new tab)
• PBS NewsHour (YouTube), “Why unpaid internships still exist despite hardships for young workers,” August 26, 2023. Open the source (opens in a new tab)
• National Association of Colleges and Employers, “The Class of 2023: Inequity Continues to Underpin Internship Participation and Pay Status,” August 8, 2023. Open the source (opens in a new tab)
• National Association of Colleges and Employers (NACE), “NACE Principles for Ethical Professional Practice,” 2025. Open the source (opens in a new tab)

Unpaid internships and the primary beneficiary test

The story: A legal conclusion in a recruiting email

A studio posts a “Summer Editing Intern (unpaid)” listing on a campus job board. The advertised benefits are exposure to the industry and available college credit. The listed duties are running the customer inbox all summer and helping with client files. Rafa, 18, a first-year commuter who works at his family’s shop, reads it twice and cannot find the editing.

The studio’s reply to his inquiry contains a legal conclusion: because interns receive college credit, it is “totally legal” not to pay. The case invites students to treat that sentence the way a lawyer or a careful journalist would. It is a claim, offered by an interested party, about a test the studio does not name.

Rafa’s research on the train reveals that credit is one factor among seven. A conversation with Gia adds a decisive fact. The inbox was run last year by a paid assistant. Gia also models two useful disciplines. She counts the costs of the offer, lost shifts, commuting and a summer without income. And she declines to overstate. She cannot say the internship is illegal. She can say which questions remain unanswered.

Your role is to check each factor of the test before Rafa says yes.

Applying a flexible standard

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee. It asks whether the intern or the employer is the primary beneficiary of the relationship. An intern who is an employee must be paid under the Fair Labor Standards Act, a federal law that sets minimum wage and overtime rules for most workers. The Department’s seven factors include educational training and ties to coursework or academic credit. They also include accommodation of the academic calendar, a limited duration tied to learning and whether the work complements or displaces paid employees. Academic credit is credit toward a degree that a school gives for approved work, such as an internship.

The new skill is applying a multi-factor test one factor at a time. It extends Lesson 12’s analogical reasoning from precedent and Lesson 11’s discipline of comparing like with like. Applied here, the analysis separates evidence from gaps. On displacement, the assistant’s paid role last year is strong evidence. On academic credit, availability is asserted but unconfirmed. On training and supervision, the record is silent. On duration and calendar, the start date is known, but hours are not. Because the test is holistic and no factor controls, the defensible conclusion is limited. The studio’s claim that credit makes nonpayment “totally legal” is unsupported. Whether Rafa would be an employee cannot be decided without more facts. The framework applies to for-profit employers, and state rules may differ.

Lesson 11’s concept of compensation, all the pay and benefits a worker receives, frames the economics. The offer’s compensation is zero, and Rafa would give up paid shifts. His written request for facts, covering training, a typical week, weekly hours and whether he would be doing the assistant’s former job, is both prudent and the only way to apply the test.

Litigation, inequity and professional ethics

The Second Circuit’s decision in Glatt v. Fox Searchlight Pictures anchors the modern test. Interns on the 2010 film Black Swan performed tasks the opinion lists, including answering phones, taking lunch orders, making coffee, photocopying and filing (U.S. Court of Appeals for the Second Circuit, 2016). The court’s 2015 ruling adopted the primary beneficiary question (LAist, July 2, 2015), and the Department of Labor now uses that test (U.S. Department of Labor, Fact Sheet #71, updated January 2018). Legal scholars have analyzed the test in detail (Harvard Law Review, February 9, 2016).

The policy stakes include access. Nearly half of U.S. interns were unpaid in 2022 (PBS NewsHour, August 26, 2023). NACE reports persistent inequity in who receives paid internships (National Association of Colleges and Employers, August 8, 2023). Earlier NACE data found that paid interns received more job offers than unpaid classmates (National Association of Colleges and Employers, March 23, 2016). On Capitol Hill, most summer interns have gone unpaid, which limits who can pursue those careers (NPR, July 25, 2017).

Professional standards apply to the studio’s email. NACE asks employers to comply with laws “associated with local, state, and federal entities” (NACE Principles for Ethical Professional Practice, 2025). The ABA’s model rules bar lawyers from knowingly making a false statement of material fact or law to a third person (ABA Model Rules of Professional Conduct, 1983, as amended). A recruiting email is not legal advice, and Rafa is right to treat it as a claim.

Key terms in this passage

Primary beneficiary test

The primary beneficiary test is how the U.S. Department of Labor decides whether an intern at a for-profit company is an employee.

Fair Labor Standards Act

The Fair Labor Standards Act is a federal law that sets minimum wage and overtime rules for most workers.

Academic credit

Academic credit is credit toward a degree that a school gives for approved work, such as an internship.

Compensation

Compensation is all the pay and benefits a worker receives, including hourly rates, bonuses and overtime.

Real sources cited

• U.S. Court of Appeals for the Second Circuit, via Justia, “Glatt v. Fox Searchlight Pictures,” 2016. Open the source (opens in a new tab)
• LAist (AirTalk), “Appeals court reverses ‘Black Swan’ interns’ victory over Fox,” July 2, 2015. Open the source (opens in a new tab)
• U.S. Department of Labor, Wage and Hour Division, “Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act,” January 2018. Open the source (opens in a new tab)
• Harvard Law Review, “Glatt v. Fox Searchlight Pictures, Inc.,” February 9, 2016. Open the source (opens in a new tab)
• PBS NewsHour (YouTube), “Why unpaid internships still exist despite hardships for young workers,” August 26, 2023. Open the source (opens in a new tab)
• National Association of Colleges and Employers, “The Class of 2023: Inequity Continues to Underpin Internship Participation and Pay Status,” August 8, 2023. Open the source (opens in a new tab)
• National Association of Colleges and Employers, “Paid Interns/Co-ops See Greater Offer Rates and Salary Offers Than Their Unpaid Classmates,” March 23, 2016. Open the source (opens in a new tab)
• NPR, “On Capitol Hill, Most Summer Interns Still Go Unpaid,” July 25, 2017. Open the source (opens in a new tab)
• National Association of Colleges and Employers (NACE), “NACE Principles for Ethical Professional Practice,” 2025. Open the source (opens in a new tab)
• American Bar Association (ABA), Center for Professional Responsibility, “ABA Model Rules of Professional Conduct,” No date listed. Open the source (opens in a new tab)