Eleventh Circuit forensic photography interns not eligible for FLSA salaries | Ogletree, Deakins, Nash, Smoak & Stewart, CP
On June 9, 2022, a split panel of the United States Court of Appeals for the Eleventh Circuit ruled that an unpaid intern participating in a forensic photography training program was not entitled to pay. under the Fair Labor Standards Act (FLSA). In a 2-1 opinion, the Eleventh Circuit panel of McKay vs. Miami-Dade County agreed that the intern photographer was an intern—not an employee—under the FLSA and that the county was not obligated to pay her as she was the primary beneficiary of her participation in the program.
Brandi McKay is a college graduate who enrolled in Miami-Dade County’s free forensic imaging preceptorship program specifically to avoid the cost and time commitment of pursuing an additional college degree in forensic photography. The program lasted six months and required weekend work. The first two weeks of the program consisted of workbooks, followed by two weeks shadowing county staff photographers. For weeks five through eight, McKay worked in the morgue taking autopsy photos, “sometimes with staff supervision and sometimes without”. McKay left the program about a month before completing it. Prior to his departure, McKay spent the remaining weeks alternating between taking pictures at the morgue under little supervision and performing assignments at the program office.
McKay sued Miami-Dade County, seeking minimum wage and overtime pay under the FLSA, claiming she was an employee. The county advanced two primary defenses: (1) McKay was an intern under the internship exception established by United States Supreme Court and Eleventh Circuit case law and (2) she was a volunteer under the volunteering exception for public agencies found in § 203(4)(A) of the FLSA.
Eleventh Circuit Majority Opinion
The Eleventh Circuit majority first addressed the interplay between the internship exception, which is a court-created exception that can apply to all employers, and the statutory volunteer exception, which does not apply. than to public bodies. The court reviewed the legislative history and relevant case law and concluded that the statutory exception for volunteering did not replace the internship exception created by the court. In so finding, the court ruled that the internship and volunteer exceptions are available to public bodies.
The court then determined that McKay’s participation in the program met the statutory exception for volunteerism under the FLSA. Section 203(e)(4)(A) of the FLSA provides that a person is not an “employee” if the person: volunteers to provide services to a public body; does not receive a salary, but may receive expenses, reasonable benefits or nominal fees; and, renders services different from the services the person renders as an employee of the agency. The law does not define “volunteer,” but the United States Department of Labor has defined the term in regulations regarding the exception of volunteers, who the Eleventh Circuit has ruled are entitled to substantial deference. DOL regulations define a “volunteer” as follows:
A person who performs hours of service for a public body for civic, charitable or humanitarian reasons, without the promise, expectation or receipt of compensation for services rendered, is considered a volunteer during those hours.
Under this standard, the court held that McKay was not a volunteer within the meaning of the statutory exception because she and the county had stipulated that McKay “was not motivated in any way by civic, charitable or humanitarian”.
Finding the voluntary exception inapplicable, the court considered the trainee exception. Under this exception, a trainee learning with an employer is not considered an “employee” within the meaning of the FLSA if the trainee is the primary beneficiary of the trainee-employer relationship. The majority of the Eleventh Circuit applied the primary beneficiary test, considering the following seven non-exhaustive factors:
- “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.
- “The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including clinical training and other practical training provided by educational institutions.”
- “The extent to which the internship is linked to the intern’s formal education program through integrated courses or the receipt of academic credits.”
- “The extent to which the internship adapts to the academic commitments of the intern by corresponding to the academic calendar. »
- “The extent to which the duration of the internship is limited to the period during which the internship provides the intern with beneficial learning.”
- “The extent to which the intern’s work complements, rather than replaces, the work of paid employees while providing significant educational benefits to the intern.”
- “The extent to which the intern and the employer understand that the internship is carried out without the right to gainful employment at the end of the internship.”
None of these factors is determinative, and not all factors “need to point in the same direction” for the court to decide that an intern is not an employee. Additionally, the court said it weighs and balances all circumstances, including those outside the seven listed factors if warranted.
The court found the facts in favor of applying the probationary exception with respect to the first two factors. Regarding the third and fourth factors, the majority concluded that not offering academic credit or professional certification or licensing did not preclude the county from using the internship exception. Instead, the majority pointed to McKay’s replacement of the internship for “another four years of study.” The majority concluded that the county’s program operated as a “free six-month vocational school in all but name.” Therefore, the majority concluded that the third and fourth factors were essentially inapplicable to the analysis.
With respect to the fifth factor, the majority ruled that the definitive six-month length of the internship weighed in favor of the county, particularly when compared to a four-year degree in this discipline.
With respect to the sixth factor, the majority, citing a previous Eleventh Circuit case, concluded that even if McKay’s work displaced the work of regular employees, “‘there is nothing inherently wrong with what an employer benefits from an internship that also clearly benefits the interns.” Accordingly, the majority gave this factor little weight. Finally, the Eleventh Circuit determined that the seventh factor weighed in favor of the county, as McKay did not expect a job in the county after his internship.
In a partially dissenting opinion, Judge Adelberto Jordan disagreed with the majority on factors three and four. He also rejected the majority’s application of the seven-factor test and advocated a more “holistic” totality of circumstances test that focuses on the “economic realities” of each particular case.
Key points to remember
This opinion illustrates that whether a learner/worker combination is an employee entitled to wages under the FLSA is a highly factual decision. Institutions of higher learning that sponsor internship programs and companies that provide learning experiences might consider focusing their attention on the facts and circumstances of each particular internship position when determining employee status. an individual, with the seven factors discussed in the majority opinion being guiding, in addition to other case-specific factors that indicate whether the primary beneficiary is the learner or the business.