13

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‐ cv

Glatt et al. v. Fox Searchlight Pictures, Inc. et al.



## In the



# United States Court of Appeals

**For the Second Circuit**

________

A UGUST T ERM

, 2014

A RGUED : J ANUARY 30, 2015

D ECIDED : J ULY 2, 2015

A MENDED : J ANUARY 25, 2016

Nos. 13

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‐ cv, 13

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‐ cv

E RIC G LATT

, A LEXANDER F OOTMAN

, E DEN M. A NTALIK

, ON BEHALF OF

HERSELF AND ALL OTHERS SIMILARLY SITUATED

, Plaintiffs

‐ Appellees

,

v.

F OX S EARCHLIGHT P ICTURES

, I NC

., F OX E NTERTAINMENT G ROUP

, I NC

., Defendants

‐ Appellants

. 

________

Appeal from the United States District Court for the Southern District of

New York.

No. 1:11

‐ CV

‐ 6784

– William H. Pauley III, Judge

.

________

Before: W ALKER

, J ACOBS

, and W ESLEY

, Circuit Judges

.

________

 The clerk of the court is directed to amend the caption as set forth above.2 Nos. 13

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‐ cv, 13

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‐ cv

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.

________

N EAL K UMAR K ATYAL

, 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

.

R ACHEL B IEN

, 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

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‐ cv, 13

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‐ cv

M ARIA V AN

‐ B UREN

, 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.

________

J OHN M. W ALKER

, J R

., 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

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‐ cv, 13

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‐ 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

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‐ cv, 13

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‐ 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 daily6 Nos. 13

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‐ 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 abandoned7 Nos. 13

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‐ 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 evaluating8 Nos. 13

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‐ 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. Sec ʹ y of Labor

, 471 U.S. 290,

302 (1985) (exceptions to coverage under the FLSA affect more people than9 Nos. 13

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‐ 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 vocational10 Nos. 13

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‐ cv, 13

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‐ 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/reg s/compliance/whdfs71.pdf.11 Nos. 13

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‐ 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

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‐ 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 not

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 employee13 Nos. 13

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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 three 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 exists14 Nos. 13

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‐ cv, 13

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‐ 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”). Third, it acknowledges that the intern

‐

employer relationship should not be analyzed in the same manner as the

standard employer

‐ employee relationship because the intern enters into

the relationship with the expectation of receiving educational or vocational

benefits that are not necessarily expected with all forms of employment

(though such benefits may be a product of experience on the job).

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 (2d15 Nos. 13

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‐ cv

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

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

2 Like the parties and amici, we limit our discussion to internships at for

‐ profit employers.16 Nos. 13

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specify are non

‐ exhaustive—courts may consider relevant evidence

beyond the specified factors in appropriate cases. And because the

touchstone of this analysis is the “economic reality” of the relationship,

Barfield

, 537 F.3d at 141, a court may elect in certain cases, including cases

that can proceed as collective actions, to consider evidence about an

internship program as a whole rather than the experience of a specific

intern.

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

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—and is confined to internships and does not apply to

training programs in other contexts. The purpose of a bona

‐ fide internship

is to integrate classroom learning with practical skill development in a17 Nos. 13

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‐ cv, 13

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‐ cv

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

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.

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”).18 Nos. 13

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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 Entm ʹ t 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;

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 these19 Nos. 13

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‐ cv, 13

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‐ cv

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

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

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

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‐ cv, 13

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‐ cv

under the FLSA. As our previous discussion of the proper test indicates,

the question of an intern’s employment status is a highly context

‐ specific

inquiry. Antalik’s evidence that the defendants received an immediate

advantage from the internship program will not help to answer whether

the internship program could be tied to an education program, whether

and what type of training the internship program provided, whether the

internship program continued beyond the primary period of learning, or

the many other questions that are relevant in this 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 suffice to show that

Fox’s internship program created employment relationships, the most

important issue in 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 mortgage21 Nos. 13

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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 on this record in light of the new legal

standard, 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

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,

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.22 Nos. 13

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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,

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 18,23 Nos. 13

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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 in light of the new test for when an internship

program creates an employment relationship, we cannot, on the record

before us, conclude that the plaintiffs in Antalik’s proposed collective are

similarly situated, even under the minimal pre

‐ discovery standard. 6 The

common proof identified by Antalik, and relied on by the district court,

addresses only some of the relevant factor outlined above. 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

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).24 Nos. 13

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certifying Antalik’s proposed nationwide collective action and remand for

further proceedings. 7

CONCLUSION

For the foregoing reasons, the district court’s orders are VACATED

and the case REMANDED for further proceedings consistent with this

opinion.

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.