Once thought to be the next wave of wage-and-hour cases, suits involving interns and students have tended to founder because most training programs are intended to train rather than to provide employment. We've blogged about issues like this on several occasions in the past [ May 12, 2013; July 6, 2015; Sept. 24, 2015; Dec. 12, 2017], but they still arise in the hopes of finding the "next big thing." Most recently, in Nesbitt v. FCNH, Inc., Case No. 17-1084 (10th Cir. Nov. 9, 2018), the plaintiff was a former massage therapy student who received vocational training at a for-profit vocational school. She asserted that while designated a student, she and other students were actually employees receiving minimal instruction and, accordingly, they sought to be paid the minimum wage for their time. The district court granted summary judgment for the school, and the plaintiff appealed.
The Tenth Circuit noted that the plaintiff and her fellow students sought to become licensed massage therapists, a position that required approximately 100 hours of actual clinical experience. In this instance, the students provided patients with massage therapy in classrooms they could convert into booths to perform massages on individual patients. Although the parties differed on the quality and effectiveness of the supervision provided by the school, it was undisputed that supervisors were present and that the time spent counted toward the necessary licensure. Courts have applied different tests to determine whether students or interns are employees under the Fair Labor Standards Act. In this instance, the court, citing past Tenth Circuit precedent, relied upon the Department of Labor's six-factor test. We discussed the Second Circuit's use of a slightly different test here.
The Tenth Circuit had little difficulty affirming the district court's decision despite acknowledged disputes regarding the level and effectiveness of the supervision provided and whether the school profited financially from the students' work. It found that the students were, in fact, students receiving vocational training from a vocational school. They never functioned as employees and were supervised, at least in some fashion. Whether or not the school received some patient funds, the students, who needed the practical experience, were the primary beneficiaries of the training. The students received what they were told was "literally 'vocational school' training." Further, there was no promise of a job upon the program's completion. And, of course, the students had never been promised they would be paid for their time, and payment would arguably have been illegal under state law without the requisite license. Accordingly, the court held that they were students, not employees, of the school.
Litigation involving unpaid internships has already caused such opportunities to dry up for those seeking practical work experience. Challenging vocational educational programs seems even less fruitful, as the participants are plainly students.
The bottom line:
Genuine vocational programs should not be recharacterized as "employment" even if the students can quibble about the effectiveness of supervision.
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