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Volume XII, Number 180

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Forensic Photographer Trainee Takes Shot at Employee Status, But It Doesn’t Develop, 11th Circuit Rules

A forensic photographer who enrolled in a county training program was an intern and not an employee, a three-judge panel of the Eleventh Circuit Court of Appeals has held in a divided opinion. As a result, her minimum wage and overtime claims under the Fair Labor Standards Act (FLSA) were properly dismissed by the trial court. McKay v. Miami-Dade County, 2022 U.S. App. LEXIS 15910 (11th Cir. June 9, 2022). The Eleventh Circuit has jurisdiction over the federal courts in Alabama, Georgia, and Florida.

Plaintiff Brandi McKay was enrolled in a 6-month, unpaid program sponsored by Miami-Dade County, Florida to train photographers in forensic imaging (taking photos of deceased individuals during autopsies, at crime scenes, etc.). The plaintiff elected to enroll in this program rather than undertake the time and expense to obtain a four-year undergraduate degree that would have provided comparable training. She understood that she would work full-time, uncompensated, five days a week and sometimes on the weekend. After the first two months of the program, she and other trainees often would work unsupervised during their weekend assignments.

The plaintiff resigned from the program about a month before completing it and, a few months later, filed a lawsuit in federal court, asserting that during her time in the training program she was a county employee and therefore was due minimum wage and overtime pay. The County responded that the plaintiff was an intern, or alternatively that she was a volunteer, as those terms have been defined under the FLSA, and was not entitled to any pay. Both parties subsequently filed motions for summary judgment. Although it rejected the County’s assertion that the plaintiff was a volunteer, the trial court agreed that she was categorized correctly as an intern and dismissed her claims.

The plaintiff appealed and the Eleventh Circuit affirmed the lower court’s summary judgment ruling in favor of Miami-Dade County. First, the Court of Appeals agreed with the trial court that the plaintiff did not meet the definition of a volunteer of a public agency. The FLSA excludes from the definition of employee “any individual who volunteers to perform services for a public agency . . . if (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (ii) such services are not the same type of services which the individual is employed to perform for such public agency.” 29 U.S.C. § 203(e)(4)(A). However, the FLSA does not further define “volunteer,” leaving that determination instead to the U.S. Department of Labor (DOL). The DOL in turn has defined volunteer as “an individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.”

In this case, both parties had stipulated before the trial court that the plaintiff did not participate in the training program for civic, charitable, or humanitarian reasons, and the Eleventh Circuit rejected the County’s argument that the DOL’s definition was unreasonable and ambiguous. On the contrary, applying the Chevron standard, the Court of Appeals noted that they were bound to follow the DOL’s regulation unless it is “procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” The County had not demonstrated that any of these conditions existed, the Eleventh Circuit concluded.

However, the Court of Appeals agreed that the plaintiff was properly characterized as an intern. Under the law of the Eleventh Circuit (and all other courts of appeal), whether an individual is an intern or an employee depends on who the primary beneficiary is of the relationship, the individual or the employer. Although the courts and the DOL have developed somewhat differing tests to make this determination, all apply a number of similar factors. In the case of the Eleventh Circuit, those non-exclusive factors are:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation;

  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; and

  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.

No one factor is dispositive and, as was the case here given that the plaintiff was participating in a program that did not involve formal academic training, not all factors necessarily will apply.

Applying the factors, the Eleventh Circuit agreed with the trial court that the plaintiff was the primary beneficiary of her relationship with the County’s training program. First, the parties agreed that the plaintiff understood there was no promise or expectation of compensation for her participation in the program. Second, her participation in the program provided her with valuable training similar to what she would have received in a formal forensic degree program. The seventh factor also weighed heavily in the County’s favor, as the plaintiff did not expect a job with it following completion of the program.

The trial court properly excluded consideration of the third and fourth factors, the Court of Appeals noted, because the plaintiff was not participating in a formal academic program, and further properly determined that the fifth factor at most “very weakly” favored the plaintiff because, while the program arguably may have been longer than necessary, it was not so long as to be “ grossly excessive in comparison to the period of beneficial learning.” The trial court also correctly determined that the sixth factor “weakly” weighed in the plaintiff’s favor, given that the work she did on weekends sometimes displaced that of the County’s staff photographers, but noted that both parties benefited from this work. Thus, considering all of the relevant factors, the plaintiff was properly deemed to be an intern and her minimum wage and overtime claims were due to be dismissed.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 172
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About this Author

Justin R. Barnes, Jackson Lewis, Federal Employment Lawyer, Discrimination Allegations Attorney
Principal

Justin R. Barnes is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He represents employers in federal and state courts and before administrative agencies on a variety of labor and employment related issues, including collective and class action wage and hour disputes, labor arbitrations, allegations of discrimination, and employment-related contract disputes.

Mr. Barnes’ practice is focused primarily on defending complex wage and hour class and collective actions in state and federal courts across the...

404-586-1809
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