Are Interns Covered By The FLSA? Congress May Have Spoken To The Issue...

Sooner or later, the Supreme Court is going to decide whether interns are "employees" for purposes of the Fair Labor Standards Act's (FLSA) minimum wage and overtime provisions. Beginning last year, a number of plaintiffs filed suit against some major companies, including film studio Fox Searchlight. We'll likely have to wait until a circuit split develops, but the question is far too important for the Court to ignore forever. 

There are a number of great arguments on both sides. But I write today to discuss an argument favoring the interns that--to my knowledge--hasn't been discussed to date. Here it is:

In 1996, Congress passed the Congressional Accountability Act (CAA). Prior to the CAA, the terms of the FLSA didn't apply to Congress. Instead, Congress--as a public agency--was free to pay its employees whatever it wanted. But the CAA changed that. It effectively imported, wholesale, the provisions of the FLSA into the congressional setting. 

But, importantly for  present purposes, it did something that would have been unusual if it didn't think that interns were covered by the FLSA: It expressly exempted interns from the CAA. 

Here are the relevant provisions (2 U.S.C. 1313):

(a) Fair labor standards

(1) In general

The rights and protections established by subsections (a)(1) and (d) of section 6, section 7, and section 12(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (a)(1) and (d), 207, 212 (c)) shall apply to covered employees.

(2) Interns

For the purposes of this section, the term “covered employee” does not include an intern as defined in regulations under subsection (c) of this section.

(my emphasis).

I think this is pretty good evidence that (at least one) Congress believed that the FLSA covered interns. Otherwise, why would it have taken the affirmative step of exempting them? While this position has a lot of logical support, the Court's case law also indicates that a court should presume that a statutory exception is not superfluous. 

See EEOC v. Arab. Am. Co., 499 U.S. 244, 270 (1991) ("Thus, in order to credit respondents' interpretation of the alien-exemption provision, we must attribute to Congress a decision to enact a completely superfluous exemption solely as a means of signaling its intent that aliens be protected from employment discrimination in this Nation. In addition to being extremely improbable, such a legislative subterfuge would have been completely unnecessary, for as we indicated in Espinoza v. Farah Mfg. Co., 414 U. S. 86 (1973), Congress clearly communicated its intent to cover aliens working in this country by prohibiting discrimination against 'any individual.'"). 

This won't be the end of the story. The employers will argue that Congress created the exception--not because it was required, strictly speaking--but simply as a C.Y.A. measure. 

There is some additional fuzziness in Congress' reference to "regulations" in section 1313(a)(2). This may mean that DOL should decide who qualifies as an intern. It has since done so with Fact Sheet #71.

Either way, this is an argument that hasn't been raised, but that clearly should be. (Some commentators have complained about the inequity of Congress declining to pay its interns, but no one has marshalled it as a legal argument). Even if the CAA argument doesn't end the matter (it doesn't), it  should still be getting thrown into plaintiff's briefs on appeal.

In the traditional statutory interpretation brief (text-context-legislative history), this is obviously a context-based argument. I'll post again soon concerning some textual arguments that have thus far been ignored by the parties.