Date: 07-02-2015

Case Style: Eric Glatt v. Fox Searchlight Pictures, Inc.

Case Number: 13‐4478‐cv (L)

Judge: John M. Walker

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: RACHEL BIEN, Outten & Golden LLP, New York, NY,
(Adam T. Klein, Juno Turner, Outten & Golden LLP,
New York, NY, on the brief), for Plaintiffs‐Appellees.

Defendant's Attorney: NEAL KUMAR KATYAL, Hogan Lovells US LLP,
Washington, DC, (Mary Helen Wimberly, Frederick
Liu, Hogan Lovells US LLP, Washington, DC, and Elise
M. Bloom, Mark D. Harris, Chantel L. Febus, Amy F.
Melican, Joshua S. Fox, Proskauer Rose LLP, New York,
NY, on the brief), for Defendants‐Appellants.

MARIA VAN‐BUREN, U.S. Department of Labor,
Washington, DC, (Jennifer S. Brand, Paul L. Frieden, on
the brief), for M. Patricia Smith, Solicitor of Labor, U.S.
Department of Labor, Washington, DC, as Amicus
Curiae.

Description: Plaintiffs, who were hired as unpaid interns, claim compensation as
employees under the Fair Labor Standards Act and New York Labor Law.
Plaintiffs Eric Glatt and Alexander Footman moved for partial summary
judgment on their employment status. Plaintiff Eden Antalik moved to
certify a class of all New York interns working at certain of defendants’
divisions between 2005 and 2010 and to conditionally certify a nationwide
collective of all interns working at those same divisions between 2008 and
2010. The district court (William H. Pauley III, J.) granted Glatt and
Footman’s motion for partial summary judgment, certified Antalik’s New
York class, and conditionally certified Antalik’s nationwide collective. On
defendants’ interlocutory appeal, we VACATE the district court’s order
granting partial summary judgment to Glatt and Footman, VACATE its
order certifying Antalik’s New York class, VACATE its order conditionally
certifying Antalik’s nationwide collective, and REMAND for further
proceedings.
________
NEAL KUMAR KATYAL, Hogan Lovells US LLP,
Washington, DC, (Mary Helen Wimberly, Frederick
Liu, Hogan Lovells US LLP, Washington, DC, and Elise
M. Bloom, Mark D. Harris, Chantel L. Febus, Amy F.
Melican, Joshua S. Fox, Proskauer Rose LLP, New York,
NY, on the brief), for Defendants‐Appellants.
RACHEL BIEN, Outten & Golden LLP, New York, NY,
(Adam T. Klein, Juno Turner, Outten & Golden LLP,
New York, NY, on the brief), for Plaintiffs‐Appellees.
3 Nos. 13‐4478‐cv, 13‐4481‐cv
MARIA VAN‐BUREN, U.S. Department of Labor,
Washington, DC, (Jennifer S. Brand, Paul L. Frieden, on
the brief), for M. Patricia Smith, Solicitor of Labor, U.S.
Department of Labor, Washington, DC, as Amicus
Curiae.
________
JOHN M. WALKER, JR., Circuit Judge:
Plaintiffs, who were hired as unpaid interns, claim compensation as
employees under the Fair Labor Standards Act and New York Labor Law.
Plaintiffs Eric Glatt and Alexander Footman moved for partial summary
judgment on their employment status. Plaintiff Eden Antalik moved to
certify a class of all New York interns working at certain of defendants’
divisions between 2005 and 2010 and to conditionally certify a nationwide
collective of all interns working at those same divisions between 2008 and
2010. The district court (William H. Pauley III, J.) granted Glatt and
Footman’s motion for partial summary judgment, certified Antalik’s New
York class, and conditionally certified Antalik’s nationwide collective. On
defendants’ interlocutory appeal, we VACATE the district court’s order
granting partial summary judgment to Glatt and Footman, VACATE its
order certifying Antalik’s New York class, VACATE its order conditionally
certifying Antalik’s nationwide collective, and REMAND for further
proceedings.
4 Nos. 13‐4478‐cv, 13‐4481‐cv
BACKGROUND
Plaintiffs worked as unpaid interns either on the Fox Searchlight‐
distributed film Black Swan or at the Fox corporate offices in New York
City. They contend that the defendants, Fox Searchlight and Fox
Entertainment Group, violated the Fair Labor Standards Act (FLSA), 29
U.S.C. §§ 206‐07, and New York Labor (NYLL), N.Y. Labor Law § 652, by
failing to pay them as employees during their internships as required by
the FLSA’s and NYLL’s minimum wage and overtime provisions. The
following background facts are undisputed except where noted.
Eric Glatt
Eric Glatt graduated with a degree in multimedia instructional
design from New York University. Glatt was enrolled in a non‐
matriculated (non‐degree) graduate program at NYU’s School of
Education when he started working on Black Swan. His graduate program
did not offer him credit for his internship.
From December 2, 2009, through the end of February 2010, Glatt
interned in Black Swan’s accounting department under the supervision of
Production Accountant Theodore Au. He worked from approximately 9:00
a.m. to 7:00 p.m. five days a week. As an accounting intern, Glatt’s
responsibilities included copying, scanning, and filing documents; tracking
purchase orders; transporting paperwork and items to and from the Black
Swan set; maintaining employee personnel files; and answering questions
about the accounting department.
5 Nos. 13‐4478‐cv, 13‐4481‐cv
Glatt interned a second time in Black Swan’s post‐production
department from March 2010 to August 2010, under the supervision of
Post Production Supervisor Jeff Robinson. Glatt worked two days a week
from approximately 11:00 a.m. until 6:00 or 7:00 p.m. His post‐production
responsibilities included drafting cover letters for mailings; organizing
filing cabinets; filing paperwork; making photocopies; keeping the take‐
out menus up‐to‐date and organized; bringing documents to the payroll
company; and running errands, one of which required him to purchase a
non‐allergenic pillow for Director Darren Aronofsky.
Alexander Footman
Alexander Footman graduated from Wesleyan University with a
degree in film studies. He was not enrolled in a degree program at the time
of his Black Swan internship. From September 29, 2009, through late
February or early March 2010, Footman interned in the production
department under the supervision of Production Office Coordinator
Lindsay Feldman and Assistant Production Office Coordinator Jodi
Arneson. Footman worked approximately ten‐hour days. At first, Footman
worked five days a week, but, beginning in November 2009, he worked
only three days a week. After this schedule change, Black Swan replaced
Footman with another unpaid intern in the production department.
Footman’s responsibilities included picking up and setting up office
furniture; arranging lodging for cast and crew; taking out the trash; taking
lunch orders; answering phone calls; watermarking scripts; drafting daily
6 Nos. 13‐4478‐cv, 13‐4481‐cv
call sheets; photocopying; making coffee; making deliveries to and from
the film production set, rental houses, and the payroll office; accepting
deliveries; admitting guests to the office; compiling lists of local vendors;
breaking down, removing, and selling office furniture and supplies at the
end of production; internet research; sending invitations to the wrap party;
and other similar tasks and errands, including bringing tea to Aronofsky
and dropping off a DVD of Black Swan footage at Aronofsky’s apartment.
Eden Antalik
Eden Antalik worked as an unpaid publicity intern in Fox
Searchlight’s corporate office in New York from the beginning of May 2009
until the second week of August 2009. During her internship, Antalik was
enrolled in a degree program at Duquesne University that required her to
have an internship in order to graduate. Antalik was supposed to receive
credit for her internship at Fox Searchlight, but, for reasons that are
unclear from the record, she never actually received the credit.
Antalik began work each morning around 8:00 a.m. by assembling a
brief, referred to as “the breaks,” summarizing mentions of various Fox
Searchlight films in the media. She also made travel arrangements,
organized catering, shipped documents, and set up rooms for press events.
Prior Proceedings
On October 19, 2012, plaintiffs filed their first amended class
complaint seeking unpaid minimum wages and overtime for themselves
and all others similarly situated. Thereafter, Glatt and Footman abandoned
7 Nos. 13‐4478‐cv, 13‐4481‐cv
their class claims and proceeded as individuals. After discovery, Glatt and
Footman moved for partial summary judgment, contending that they were
employees under the FLSA and NYLL. The defendants cross‐moved for
summary judgment claiming that Glatt and Footman were not employees
under either statute. At about the same time, Antalik moved to certify a
class of New York State interns working at certain Fox divisions and a
nationwide FLSA collective of interns working at those same divisions.
On June 11, 2013, the district court concluded that Glatt and
Footman had been improperly classified as unpaid interns rather than
employees and granted their partial motion for summary judgment. The
district court also granted Antalik’s motions to certify the class of New
York interns and to conditionally certify the nationwide FLSA collective.
On September 17, 2013, the district court, acting on defendants’
motion, certified its order for immediate appeal under 28 U.S.C. § 1292(b).
On November 26, 2013, we granted defendants’ petition for leave to file an
interlocutory appeal from the district court’s orders. For the reasons that
follow, we vacate the district court’s orders and remand.
DISCUSSION
At its core, this interlocutory appeal raises the broad question of
under what circumstances an unpaid intern must be deemed an
“employee” under the FLSA and therefore compensated for his work. That
broad question underlies our answers to the three specific questions on
appeal. First, did the district court apply the correct standard in evaluating
8 Nos. 13‐4478‐cv, 13‐4481‐cv
whether Glatt and Footman were employees, and, if so, did it reach the
correct result? Second, did the district court err by certifying Antalik’s
class of New York interns? Third, did the district court err by conditionally
certifying Antalik’s nationwide collective?
I. Glatt’s and Footman’s Employment Status
We review the district court’s order granting partial summary
judgment to Glatt and Footman de novo. See Velez v. Sanchez, 693 F.3d 308,
313‐14 (2d Cir. 2012). Summary judgment is appropriate only if, drawing
all reasonable inferences in favor of the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Id. at 314.
With certain exceptions not relevant here, the FLSA requires
employers to pay all employees a specified minimum wage, and overtime
of time and one‐half for hours worked in excess of forty hours per week.
29 U.S.C. §§ 206‐07. NYLL requires the same, except that it specifies a
higher wage rate than the federal minimum. See N.Y. Labor Law § 652. An
employee cannot waive his right to the minimum wage and overtime pay
because waiver “would nullify the purposes of the [FLSA] and thwart the
legislative policies it was designed to effectuate.” Barrentine v. Arkansas‐
Best Freight Sys., Inc., 450 U.S. 728, 740 (1981) (internal quotation marks
omitted); see also Tony & Susan Alamo Found. v. Secʹy of Labor, 471 U.S. 290,
302 (1985) (exceptions to coverage under the FLSA affect more people than
9 Nos. 13‐4478‐cv, 13‐4481‐cv
those workers directly at issue because exceptions are “likely to exert a
general downward pressure on wages in competing businesses”).
The strictures of both the FLSA and NYLL apply only to employees.
The FLSA unhelpfully defines “employee” as an “individual employed by
an employer.” 29 U.S.C. § 203(e)(1). “Employ” is defined as “to suffer or
permit to work.” Id. § 203(g). New York likewise defines “employee” as
“any individual employed, suffered or permitted to work by an
employer.” 12 N.Y.C.R.R. § 142‐2.14(a). Because the statutes define
“employee” in nearly identical terms, we construe the NYLL definition as
the same in substance as the definition in the FLSA. See Zheng v. Liberty
Apparel Co., 355 F.3d 61, 78 (2d Cir. 2003).
The Supreme Court has yet to address the difference between
unpaid interns and paid employees under the FLSA. In 1947, however, the
Court recognized that unpaid railroad brakemen trainees should not be
treated as employees, and thus that they were beyond the reach of the
FLSA’s minimum wage provision. See Walling v. Portland Terminal Co., 330
U.S. 148 (1947). The Court adduced several facts. First, the brakemen‐
trainees at issue did not displace any regular employees, and their work
did not expedite the employer’s business. Id. at 149‐50. Second, the
brakemen‐trainees did not expect to receive any compensation and would
not necessarily be hired upon successful completion of the course. See id. at
150. Third, the training course was similar to one offered by a vocational
10 Nos. 13‐4478‐cv, 13‐4481‐cv
school. Id. at 152. Finally, the employer received no immediate advantage
from the work done by the trainees. Id. at 153.
In 1967, the Department of Labor (“DOL”) issued informal guidance
on trainees as part of its Field Operations Handbook. The guidance
enumerated six criteria and stated that the trainee is not an employee only
if all of the criteria were met. See DOL, Wage & Hour Div., Field
Operations Handbook, Ch. 10, ¶ 10b11 (Oct. 20, 1993), available at
http://www.dol.gov/whd/FOH/FOH_Ch10.pdf. In 2010, the DOL
published similar guidance for unpaid interns working in the for‐profit
private sector. This Intern Fact Sheet provides that an employment
relationship does not exist if all of the following factors apply:
1. The internship, even though it includes actual operation
of the facilities of the employer, is similar to training which
would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but
works under close supervision of existing staff;
4. The employer that provides the training derives no
immediate advantage from the activities of the intern; and on
occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the
conclusion of the internship; and
6. The employer and the intern understand that the intern
is not entitled to wages for the time spent in the internship.
DOL, Wage & Hour Div., Fact Sheet #71, Internship Programs Under The
Fair Labor Standards Act (April 2010), available at
http://www.dol.gov/whd/regs/compliance/whdfs71.pdf.
11 Nos. 13‐4478‐cv, 13‐4481‐cv
The district court evaluated Glatt’s and Footman’s employment
using a version of the DOL’s six‐factor test. However, the district court,
unlike the DOL, did not explicitly require that all six factors be present to
establish that the intern is not an employee and instead balanced the
factors. The district court found that the first four factors weighed in favor
of finding that Glatt and Footman were employees and the last two factors
favored finding them to be trainees. As a result, the district court
concluded that Glatt and Footman had been improperly classified as
unpaid interns and granted their motion for partial summary judgment.
The specific issue we face—when is an unpaid intern entitled to
compensation as an employee under the FLSA?—is a matter of first
impression in this Circuit. When properly designed, unpaid internship
programs can greatly benefit interns. For this reason, internships are
widely supported by educators and by employers looking to hire well‐
trained recent graduates.1 However, employers can also exploit unpaid
interns by using their free labor without providing them with an
appreciable benefit in education or experience. Recognizing this concern,
all parties agree that there are circumstances in which someone who is
labeled an unpaid intern is actually an employee entitled to compensation
under the FLSA. All parties also agree that there are circumstances in

1 See, e.g., Nat’l Ass’n of Colleges & Emp’rs, Position Statement: U.S.
Internships (July 2011), available at http://www.naceweb.org /advocacy/position‐
statements/united‐states‐internships.aspx (“NACE, Position Statement”).
12 Nos. 13‐4478‐cv, 13‐4481‐cv
which unpaid interns are not employees under the FLSA. They do not
agree on what those circumstances are or what standard we should use to
identify them.  
The plaintiffs urge us to adopt a test whereby interns will be
considered employees whenever the employer receives an immediate
advantage from the interns’ work. Plaintiffs argue that focusing on any
immediate advantage that accrues to the employer is appropriate because,
in their view, the Supreme Court in Portland Terminal rested its holding on
the finding that the brakemen trainees provided no immediate advantage
to the employer.
The defendants urge us to adopt a more nuanced primary
beneficiary test. Under this standard, an employment relationship is
created when the tangible and intangible benefits provided to the intern
are greater than the intern’s contribution to the employer’s operation. They
argue that the primary beneficiary test best reflects the economic realities
of the relationship between intern and employer. They further contend
that a primary beneficiary test that considers the totality of the
circumstances is in accordance with how we decide whether individuals
are employees in other circumstances.
DOL, appearing as amicus curiae in support of the plaintiffs,
defends the six factors enumerated in its Intern Fact Sheet and its
requirement that every factor be present before the employer can escape its
obligation to pay the worker. DOL argues (1) that its views on employee
13 Nos. 13‐4478‐cv, 13‐4481‐cv
status are entitled to deference because it is the agency charged with
administering the FLSA and (2) that we should use the six factors because
they come directly from Portland Terminal.
We decline DOL’s invitation to defer to the test laid out in the Intern
Fact Sheet. As DOL makes clear in its brief, its six‐part test is essentially a
distillation of the facts discussed in Portland Terminal.  DOL Br. at 11‐12, 21.
Unlike an agency’s interpretation of ambiguous statutory terms or its own
regulations, “an agency has no special competence or role in interpreting a
judicial decision.” State of N.Y. v. Shalala, 119 F.3d 175, 180 (2d Cir. 1997).
And as DOL concedes, DOL Br. at 21, this interpretation is entitled, at
most, to Skidmore deference to the extent we find it persuasive. See Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944) (the weight given to the
Administrator’s judgment depends on “all those factors which give it
power to persuade”). Because the DOL test attempts to fit Portland
Terminal’s particular facts to all workplaces, and because the test is too
rigid for our precedent to withstand, see, e.g., Velez, 693 F.3d at 326, we do
not find it persuasive, and we will not defer to it.
Instead, we agree with defendants that the proper question is
whether the intern or the employer is the primary beneficiary of the
relationship. The primary beneficiary test has two salient features. First, it
focuses on what the intern receives in exchange for his work. See Portland
Terminal, 330 U.S. at 152 (focusing on the trainee’s interests). Second, it also
accords courts the flexibility to examine the economic reality as it exists
14 Nos. 13‐4478‐cv, 13‐4481‐cv
between the intern and the employer. See Barfield v. N.Y.C. Health & Hosps.
Corp., 537 F.3d 132, 141‐42 (2d Cir. 2008) (employment for FLSA purposes
is “a flexible concept to be determined on a case‐by‐case basis by review of
the totality of the circumstances”).
Although the flexibility of the primary beneficiary test is primarily a
virtue, this virtue is not unalloyed. The defendants’ conception of the
primary beneficiary test requires courts to weigh a diverse set of benefits
to the intern against an equally diverse set of benefits received by the
employer without specifying the relevance of particular facts. Cf. Brown v.
N.Y.C. Dep’t of Educ., 755 F.3d 154, 163 (2d Cir. 2014) (“While our ultimate
determination [of employment status] is based on the totality of
circumstances, our discussion necessarily focuses on discrete facts relevant
to particular statutory and regulatory criteria.” (internal citation omitted)).  
In somewhat analogous contexts, we have articulated a set of non‐
exhaustive factors to aid courts in determining whether a worker is an
employee for purposes of the FLSA. See, e.g., Velez, 693 F.3d at 330
(domestic workers); Brock v. Superior Care, Inc., 840 F.2d 1054, 1058‐59 (2d
Cir. 1988) (independent contractors). In the context of unpaid internships,2
we think a non‐exhaustive set of considerations should include:
1. The extent to which the intern and the employer clearly
understand that there is no expectation of compensation. Any

2 Like the parties and amici, we limit our discussion to internships at for‐
profit employers.
15 Nos. 13‐4478‐cv, 13‐4481‐cv
promise of compensation, express or implied, suggests that
the intern is an employee—and vice versa.
2. The extent to which the internship provides training
that would be similar to that which would be given in an
educational environment, including the clinical and other
hands‐on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s
formal education program by integrated coursework or the
receipt of academic credit.
4. The extent to which the internship accommodates the
intern’s academic commitments by corresponding to the
academic calendar.
5.   The extent to which the internship’s duration is limited
to the period in which the internship provides the intern with
beneficial learning.
6. The extent to which the intern’s work complements,
rather than displaces, the work of paid employees while
providing significant educational benefits to the intern.
7. The extent to which the intern and the employer
understand that the internship is conducted without
entitlement to a paid job at the conclusion of the internship.
Applying these considerations requires weighing and balancing all
of the circumstances. No one factor is dispositive and every factor need not
point in the same direction for the court to conclude that the intern is not
an employee entitled to the minimum wage. In addition, the factors we
specify are non‐exhaustive—courts may consider relevant evidence
beyond the specified factors in appropriate cases.
This flexible approach is faithful to Portland Terminal. Nothing in the
Supreme Court’s decision suggests that any particular fact was essential to
its conclusion or that the facts on which it relied would have the same
relevance in every workplace. See Portland Terminal, 330 U.S. at 150‐53; see
16 Nos. 13‐4478‐cv, 13‐4481‐cv
also Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 526 n.2 (6th Cir.
2011) (“While the Court’s recitation of the facts [in Portland Terminal]
included those that resemble the Secretary’s six factors, the Court gave no
indication that such facts must be present in future cases to foreclose an
employment relationship.” (internal citation omitted)).
The approach we adopt also reflects a central feature of the modern
internship—the relationship between the internship and the intern’s
formal education. The purpose of a bona‐fide internship is to integrate
classroom learning with practical skill development in a real‐world
setting,3 and, unlike the brakemen at issue in Portland Terminal, all of the
plaintiffs were enrolled in or had recently completed a formal course of
post‐secondary education. By focusing on the educational aspects of the
internship, our approach better reflects the role of internships in today’s
economy than the DOL factors, which were derived from a 68‐year old
Supreme Court decision that dealt with a single training course offered to
prospective railroad brakemen.
In sum, we agree with the defendants that the proper question is
whether the intern or the employer is the primary beneficiary of the
relationship, and we propose the above list of non‐exhaustive factors to aid
courts in answering that question. The district court limited its review to

3 See, e.g., NACE, Position Statement (defining the internship as “form
of experiential learning that integrates knowledge and theory learned in
the classroom with practical application and skills development in a
professional setting”).
17 Nos. 13‐4478‐cv, 13‐4481‐cv
the six factors in DOL’s Intern Fact Sheet. Therefore, we vacate the district
court’s order granting partial summary judgment to Glatt and Footman
and remand for further proceedings. On remand, the district court may, in
its discretion, permit the parties to submit additional evidence relevant to
the plaintiffs’ employment status, such as evidence on Glatt’s and
Footman’s formal education. Of course, we express no opinion with
respect to the outcome of any renewed motions for summary judgment the
parties might make based on the primary beneficiary test we have set
forth.
II. Antalik’s Motion to Certify the New York Class
We turn now to the defendants’ appeal of the district court’s order
certifying Antalik’s proposed class. We review the district court’s class
certification ruling for abuse of discretion and the conclusions of law that
informed its decision to grant certification de novo. See Parker v. Time
Warner Entmʹt Co., 331 F.3d 13, 18 (2d Cir. 2003).
Antalik moved to certify the following class:
All individuals who had unpaid internships between
September 28, 2005 and September 1, 2010 with one or more of
the following divisions of FEG [Fox Entertainment Group]:
Fox Filmed Entertainment, Fox Group, Fox Networks Group,
and Fox Interactive Media (renamed News Corp. Digital
Media).
Pls.’ Mot. For Class Cert. 19, Doc. No. 104.
Antalik bore the burden of showing that her proposed class satisfied
Rule 23’s requirements of: (1) numerosity; (2) commonality; (3) typicality;
18 Nos. 13‐4478‐cv, 13‐4481‐cv
and (4) adequacy of representation. See Fed. R. Civ. P. 23(a)(1‐4). Because
Antalik moved to certify the class pursuant to Rule 23(b)(3), she was also
required to show that “questions of law or fact common to class members
predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” See Fed R. Civ. P. 23(b)(3). “The
predominance requirement is satisfied if resolution of some of the legal or
factual questions that qualify each class member’s case as a genuine
controversy can be achieved through generalized proof, and if these
particular issues are more substantial than the issues subject only to
individualized proof.” In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108,
118 (2d Cir. 2013) (internal quotation marks omitted).
The district court found that common questions pertaining to
liability could be answered by evidence tending to show that interns were
recruited to help with busy periods, that they displaced paid employees,
and that Fox employees overseeing internships did not believe they
complied with the law. Because “common questions of liability
predominate over individual calculations of damages,” the district court
concluded that Antalik had satisfied her burden to establish
predominance. S.A. 33‐34.
On appeal, the defendants argue the district court erred by
concluding that Antalik demonstrated predominance because it
misconstrued our standards for determining when common questions
19 Nos. 13‐4478‐cv, 13‐4481‐cv
predominate over individual ones. We agree and therefore vacate the
district court’s order certifying Antalik’s class.4
Antalik points to evidence, relied on by the district court, suggesting
that the defendants sometimes used unpaid interns in place of paid
employees. Such evidence is relevant but not sufficient to answer the
question of whether each intern was an employee entitled to compensation
under the FLSA. As our previous discussion of the proper test indicates,
the question of an intern’s employment status is a highly individualized
inquiry. Antalik’s common evidence will not help to answer whether a
given internship was tied to an education program, whether and what
type of training the intern received, whether the intern continued to work
beyond the primary period of learning, or the many other questions that
are relevant to each class member’s case. Moreover, defendants’
undisputed evidence demonstrated that the various internship programs it
offered differed substantially across the many departments and four Fox
divisions included in the proposed class.
In sum, even if Antalik established that Fox had a policy of replacing
paid employees with unpaid interns, it would not necessarily mean that
every Fox intern was likely to prevail on her claim that she was an FLSA
employee under the primary beneficiary test, the most important issue in

4 In light of this disposition, we need not consider defendants’ arguments
related to commonality. See Myers v. Hertz Corp., 624 F.3d 537, 548 (2d Cir.
2010).
20 Nos. 13‐4478‐cv, 13‐4481‐cv
each case. Thus, assuming some questions may be answered with
generalized proof, they are not more substantial than the questions
requiring individualized proof. See, e.g., Myers v. Hertz Corp., 624 F.3d 537,
548 (2d Cir. 2010) (district court did not abuse its discretion by denying
certification of a class of store managers where determination of whether
managers were exempt under the FLSA would be resolved only “by
examining the employees’ actual job characteristics and duties”); In re
Wells Fargo Home Mortgage Overtime Pay Litig., 571 F.3d 953, 958‐59 (9th Cir.
2009) (district court abused its discretion by certifying a class of mortgage
consultants because employer’s centralized policy of exempting
consultants did not predominate over individual variation in job
responsibilities).
Because the most important question in this litigation cannot be
answered with generalized proof, we vacate the district court’s order
certifying Antalik’s proposed class and remand for further proceedings
consistent with this opinion.5
III. Antalik’s Motion to Conditionally Certify the Nationwide
FLSA Collective
Finally, we turn to the defendants’ appeal of the district court’s
order conditionally certifying Antalik’s proposed nationwide FLSA

5 Nevertheless, although the district court’s certification order was erroneous
in light of the new legal standard we have announced today, we cannot foreclose
the possibility that a renewed motion for class certification might succeed on
remand under our revised standard.
21 Nos. 13‐4478‐cv, 13‐4481‐cv
collective. Like the district court’s certification determination pursuant to
Rule 23, we review its decision to conditionally certify an FLSA collective
for abuse of discretion. See Myers, 624 F.3d at 554; Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008).
The FLSA permits employees to create a collective by opting‐in to a
backpay claim brought by a similarly situated employee. 29 U.S.C.
§ 216(b). The unique FLSA collective differs from a Rule 23 class because
plaintiffs become members of the collective only after they affirmatively
consent to join it. See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523,
1530 (2013). As a result, unlike a Rule 23 class, a conditionally certified
FLSA collective does not acquire an independent legal status. Id.
In Myers, we endorsed a two‐step process for certifying FLSA
collective actions. At step one, the district court permits a notice to be sent
to potential opt‐in plaintiffs if the named plaintiffs make a modest factual
showing that they and others together were victims of a common policy or
plan that violated the law. 624 F.2d at 555. At step two, with the benefit of
additional factual development, the district court determines whether the
collective action may go forward by determining whether the opt‐in
plaintiffs are in fact similarly situated to the named plaintiffs. Id.
Antalik moved, at step one, to conditionally certify the following
nationwide collective:
All individuals who had unpaid internships between
September 28, 2008 and September 1, 2010 with one or more of
the following divisions of FEG: Fox Filmed Entertainment,
22 Nos. 13‐4478‐cv, 13‐4481‐cv
Fox Group, Fox Networks Group, and Fox Interactive Media
(renamed News Corp. Digital Media).
Pls.’ Mot. For Class Cert. 28, Doc. No. 104.
After some discovery had been completed, the district court, relying
primarily on its analysis of commonality with respect to Antalik’s Rule 23
motion, authorized plaintiffs to send the opt‐in notice because Antalik put
forth generalized proof that interns were victims of a common policy to
replace paid workers with unpaid interns. On defendants’ motion for
reconsideration, the district court narrowed the opt‐in notice to include
only those individuals who held unpaid internships between January 18,
2010, and September 1, 2010, because the statute of limitations precluded
claims by earlier Fox interns.
We certified for immediate review the question of whether a higher
standard, urged by defendants, applies to motions to conditionally certify
an FLSA collective made after discovery. We do not need to decide that
question, however, because the plaintiffs in Antalik’s proposed collective
are not similarly situated even under the minimal pre‐discovery standard.6
Under the primary beneficiary test we have set forth, courts must consider
individual aspects of the intern’s experience. None of the common proof
identified by Antalik, and relied on by the district court, will address these

6 “We are not necessarily limited to the certified issue, as we have the
discretion to consider any aspect of the order from which the appeal is taken.”
J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 115 (2d Cir. 2004); accord Grayson
v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (same applied to order
conditionally certifying a collective).  
23 Nos. 13‐4478‐cv, 13‐4481‐cv
questions, and all of the issues with respect to the proposed class’s range
of experience will also be issues for the proposed collective. If anything,
Antalik’s proposed collective presents an even wider range of experience
than her proposed class because it is nationwide in scope, rather than
limited to just New York interns.
Accordingly, for substantially the same reasons as with respect to
Antalik’s Rule 23 motion, we vacate the district court’s order conditionally
certifying Antalik’s proposed nationwide collective action and remand for
further proceedings.7

* * *

7 Again, we do not foreclose the possibility that a renewed motion for
conditional collective certification might succeed on remand under the revised
standard. See supra n.5.

Outcome: For the foregoing reasons, the district court’s orders are VACATED
and the case REMANDED for further proceedings consistent with this
opinion.

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