Massage School Students Aren’t FLSA Employees, Appeals Court Finds

by Doug Chartier

Had a federal appeals court decided Nesbitt v. FCNH differently, it might have upended the business models of numerous vocational schools and training programs.

But despite the plaintiffs’ claims that a group of massage therapy schools should have paid them for clinical work they performed as students for the school’s paying clients, the 10th Circuit Court of Appeals found they weren’t employees under federal law. To reach that conclusion, the appellate panel — and the lower federal court — used the 10th Circuit’s 25-year-old test to determine whether trainees are entitled to minimum wage under the Fair Labor Standards Act.

The Nov. 9 decision shows employers that the 10th Circuit is wont to stick to its precedent in determining whether students or interns should be paid, even as other circuits and the U.S. Department of Labor have recently offered different tests.

To read this story and other complete articles featured in the November 19, 2018 print edition of Law Week Colorado, copies are available for purchase online.