Petition for Writ of Certiorari — Douglas J. Holdings, Inc., et al., Petitioners v. Joy Eberline, et al.

Supreme Court briefMar 18, 2021

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NO. ___________

IN THE

Supreme Court of the United States

DOUGLAS J. HOLDINGS, INC., ET AL.,

Petitioners,

JOY EBERLINE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court Of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

WILLIAM M. JAY

GOODWIN PROCTER LLP

1900 N St., N.W.

Washington, DC 20036

GERARD J. CEDRONE

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

MATTHEW T. NELSON

Counsel of Record

AMANDA M. FIELDER

BRANDON J. CORY

WARNER NORCROSS +

JUDD LLP

150 Ottawa Avenue, NW

Suite 1500

Grand Rapids, MI 49503

(616) 752-2000

mnelson@wnj.com

Counsel for Petitioners

(Additional counsel listed on inside cover)

MICHAEL G. BRADY

ADAM T. RATLIFF

WARNER NORCROSS +

JUDD LLP

2715 Woodward Avenue

Suite 300

Detroit, MI 48201

QUESTION PRESENTED

The Fair Labor Standards Act requires an

employer to compensate “employees” for the

work they perform. 29 U.S.C. 206, 207. But

not all working relationships are characterized by employment. The question presented

is:

Whether the Fair Labor Standards Act

requires a court to consider all the circumstances of the parties’ relationship, or only

those discrete tasks identified by the plaintiff,

in assessing whether a student, intern, or

trainee is an employee under the Act.

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE

Petitioners are Douglas J. Holdings, Inc.; Douglas

J. AIC, Inc.; Douglas J. Exchange, Inc.; Douglas J.

Institute, Inc.; Scott A. Weaver; and TJ Weaver.

Petitioner Douglas J. Holdings, Inc. does not have

a parent corporation, and no publicly traded corporation owns a 10% or greater interest in the company.

Petitioners Douglas J. AIC, Inc., Douglas J.

Exchange, Inc., and Douglas J. Institute, Inc. are

wholly owned subsidiaries of Petitioner Douglas J.

Holdings, Inc.

Respondents are Joy Eberline, Tracy Poxson, and

Cindy Zimmermann.

iii

RELATED PROCEEDINGS

United States District Court (E.D. Mich.):

Eberline v. Douglas J. Holdings, Inc., 14-cv10887 (Oct. 1, 2018) (order granting partial

summary judgment to respondents)

Eberline v. Douglas J. Holdings, Inc., 14-cv10887 (Mar. 1, 2019) (order certifying

summary-judgment ruling for appeal)

United States Court of Appeals (6th Cir.):

In re Douglas J. Holdings, Inc., No. 19-0104

(Jul. 17, 2019)

Eberline v. Douglas J. Holdings, Inc., No. 191781 (Dec. 17, 2020)

TABLE OF CONTENTS

QUESTION PRESENTED.................................... i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE ....................... ii

PETITION APPENDIX TABLE OF

CONTENTS ................................................... v

TABLE OF AUTHORITIES ............................... vii

PETITION FOR A WRIT OF CERTIORARI ...... 1

OPINIONS BELOW ............................................. 1

JURISDICTION ................................................... 1

STATUTES INVOLVED ...................................... 1

INTRODUCTION ................................................. 2

STATEMENT ....................................................... 4

A. Employee status under the FLSA ........... 4

B. Factual Background ................................. 7

C. Proceedings in the district court .............. 9

D. Proceedings in the Sixth Circuit............ 11

REASONS FOR GRANTING THE

PETITION .................................................... 15

The decision below splits from other

circuits by assessing whether a student,

intern, or trainee is an employee on a

task-by-task basis .................................. 15

II. The Sixth Circuit’s holding is wrong .... 24

III. The question presented concerns an

important issue of federal law that

warrants review in this case ................. 27

CONCLUSION ................................................... 31

PETITION APPENDIX TABLE OF CONTENTS

Appendix A: United States Court of Appeals

for the Sixth Circuit, Opinion in 19-1781,

Issued December 17, 2020 ................................ 1a–43a

Appendix B: United States Court of Appeals

for the Sixth Circuit, Judgment in 19-1781,

Issued December 17, 2020 ...................................... 44a

Appendix C: United States District Court

for the Eastern District of Michigan, Opinion

and Order Granting Plaintiffs’ Motion for Partial

Summary Judgment [60] and Granting in Part and

Denying in Part Defendants’ Motion for Summary

Judgment [56] in 5:14-cv-10887-JEL-MJH,

Issued October 1, 2018 .................................... 45a–70a

Appendix D: United States District Court for the

Eastern District of Michigan, Opinion and Order

Granting Defendants’ Motion to Amend and

Certify Order for Interlocutory Appeal [81],

Denying Motions for Leave to File Amicus

Curiae Brief [90, 91], And Staying Case in

5:14-cv-10887-JEL-MJH,

Issued March 1, 2019 ...................................... 71a–81a

Appendix E: United States Court of Appeals

for the Sixth Circuit, Order Granting Petition

for Permission to Appeal in 19-104,

Issued July 17, 2019 ........................................ 82a–83a

Appendix F: United States Court of Appeals

for the Sixth Circuit, Order Denying Petition

for Rehearing En Banc in 19-1781,

Issued February 9, 2021.......................................... 84a

Appendix G:

29 U.S.C. §203. Definitions ...................... 85a–96a

29 U.S. Code § 206. Minimum

wage ......................................................... 97a–103a

29 U.S. Code § 207. Maximum

hours ...................................................... 104a–122a

vii

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Capri Training Center, Inc.,

2014 WL 4930906 (D.N.J. Oct. 1, 2014) ..............22

Benjamin v. B & H Education, Inc.,

877 F.3d 1139 (9th Cir. 2017) .............. 6, 18, 19, 22

Benshoff v. City of Virginia Beach,

80 F.3d 136 (4th Cir. 1999) ..................................23

Donovan v. Brandel,

736 F.2d 1114 (6th Cir. 1984) ..............................30

Ford v. Yasuda,

2017 WL 4676575 (C.D. Cal. June 20,

2017) .....................................................................22

Gerard v. John Paul Mitchell Systems,

2016 WL 4479987 (C.D. Cal. Aug. 22,

2016) .....................................................................22

Glatt v. Fox Searchlight Pictures, Inc.,

811 F.3d 528 (2d Cir. 2016) ......................... passim

Goldberg v. Whitaker House Co-op., Inc.,

366 U.S. 28 (1961) ................................ 5, 24, 27, 31

Guy v. Casal Institute of Nevada, LLC,

2019 WL 2192112 (D. Nev. May 21,

2019) .....................................................................22

Guzman v. Lincoln Technical Institute,

339 F. Supp. 3d 1048 (D. Nev. Sept.

10, 2018) ...............................................................21

Halferty v. Pulse Drug Co.,

821 F.2d 261 (5th Cir. 1987) ................................26

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Harbourt v. PPE Casino Resorts

Maryland, LLC,

830 F.3d 655 (4th Cir. 2016) ................................28

Hollins v. Regency Corp.,

867 F.3d 830 (7th Cir. 2017) ...................... 6, 18, 19

Integrity Staffing Solutions, Inc. v. Busk,

574 U.S. 27 (2014) ................................................26

Jochim v. Jean Madeline Educational

Center of Cosmetology, Inc.,

98 F. Supp. 3d 750 (E.D. Pa. 2015) .....................22

McLaughlin v. Ensley,

877 F.2d 1207 (4th Cir. 1989) ................................6

Nationwide Mutual Insurance Co. v.

Darden,

503 U.S. 318 (1992) ..............................................24

Nesbitt v. FCNH, Inc.,

908 F.3d 643 (10th Cir. 2018) ..............................19

Ortega v. Denver Institute LLC,

2015 WL 4576976 (D. Colo. July 30,

2015) .....................................................................22

Reich v. Parker Fire Protection District,

992 F.2d 1023 (10th Cir. 1993) .......................... 6, 7

Rutherford Food Corp. v. McComb,

331 U.S. 722 (1947) ...................................... passim

Sandler v. Benden,

715 F. App’x 40 (2d Cir. 2017) .............................28

Schumann v. Collier Anesthesia, P.A.,

803 F.3d 1199 (11th Cir. 2015) ............ 6, 20, 21, 28

TABLE OF AUTHORITIES—Continued

Page(s)

Solis v. Laurelbrook Sanitarium &

School, Inc.,

642 F.3d 518 (6th Cir. 2011) ........................ passim

Tony & Susan Alamo Foundation v.

Secretary of Labor,

471 U.S. 290 (1985) ................................ 2, 6, 24, 26

Vanskike v. Peters,

974 F.2d 806 (7th Cir. 1992) ................................24

Vaughn v. Phoenix House N.Y., Inc.,

957 F.3d 141 (2d Cir. 2020) .................................28

Velarde v. GW GJ, Inc.,

914 F.3d 779 (2d Cir. 2019) ............... 17, 18, 21, 29

Walling v. Portland Terminal Co.,

330 U.S. 148 (1947) .................................. 2, 4, 5, 27

Wang v. Hearst Corporation,

877 F.3d 69 (2d Cir. 2017) ...................................28

Winfield v. Civitano,

2018 WL 5298748 (E.D.N.Y. Mar. 14,

2018) .....................................................................21

Statutes

28 U.S.C. 1254 .............................................................1

29 U.S.C. 203 ............................................. 4, 12, 22, 24

29 U.S.C. 206 ......................................................i, 4, 24

29 U.S.C. 207 ......................................................i, 4, 24

Regulations

29 C.F.R. 553.103 ......................................................22

TABLE OF AUTHORITIES—Continued

Page(s)

Other Authorities

Douglas Belkin, Why an Honors Student

Wants to Skip College and Go to Trade

School,

Wall Street Journal (Mar. 5, 2018) .....................28

Meg St-Espirit, The Stigma of Choosing

Trade School Over College,

The Atlantic (Mar. 6, 2019) .................................27

Nathalie Saltikoff, The Positive

Implications of Internships on Early

Career Outcomes,

National Association of Colleges &

Employers J. (May 1, 2017) .................................29

PETITION FOR A WRIT OF CERTIORARI

Douglas J. Holdings, Inc.; Douglas J. AIC, Inc.;

Douglas J. Exchange, Inc.; Douglas J. Institute, Inc.;

Scott A. Weaver; and TJ Weaver respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The United States Court of Appeals for the Sixth

Circuit’s opinion, App. 1a–43a, is reported at 982 F.3d

1006. The United States District Court for the

Eastern District of Michigan’s opinion partially granting summary judgment, App. 45a–70a, is reported at

339 F. Supp. 3d 634. The district court’s opinion

certifying its summary-judgment opinion for appeal,

App. 71a–81a, is unreported but available at 2019 WL

989284. The Sixth Circuit’s order granting permission

to appeal, App. 82a–83a, is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on December 17, 2020. App. 44a. A petition for rehearing was denied on February 9, 2021. App. 84a. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTES INVOLVED

Sections 203, 206, and 207 of Title 29 of the United

States Code are set forth in an appendix to this

petition. App. 85a–122a.

INTRODUCTION

This case raises a significant issue concerning

when vocational training programs and internships

create employment relationships for purposes of the

Fair Labor Standards Act. The FLSA requires an

employer to pay employees for their work, but not all

working relationships are subject to the FLSA. The

FLSA “was obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their

own advantage on the premises of another.” Walling

v. Portland Terminal Co., 330 U.S. 148, 152 (1947).

In Portland Terminal, the Court concluded that

trainees in a company-run training program were not

employees. Since then, the regional circuits have

diverged over how to apply the Court’s decision to

internships and vocational schools. But the court of

appeals’ decision below greatly expanded the scope of

the conflict.

The Sixth Circuit held that courts should assess

whether an employment relationship exists based

solely on those segments of the parties’ overall

relationship challenged by the plaintiff. As Judge

Batchelder explained in her dissent, the panel

majority’s minute-by-minute approach to determining

whether students are employees—in which the

answer may shift back and forth multiple times over

the course of the workday—conflicts with the decisions of the other circuits. App. 37a–40a. The other

circuits have recognized that the question of whether

a student, intern, or trainee is an employee for purposes of the FLSA is resolved by the economic reality

of the parties’ whole relationship. See Tony & Susan

Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 301

(1985). And this analysis requires consideration of the

totality of the circumstances. See Rutherford Food

Corp. v. McComb, 331 U.S. 722, 730 (1947).

The decision below creates immense practical

problems. The court of appeals acknowledges that its

analysis may result in a student, intern, or trainee

being designated an employee when performing

certain tasks but not others. Here, for example,

cosmetology students spent time sanitizing the

training salon during their downtime. Under the

Sixth Circuit’s approach, a student who spends 15

minutes wiping down the hair-washing station and

changing a load of towels in the laundry between

cutting guests’ hair might be deemed an employee

because of those 15 minutes—but only during that

period. The practical complexities created by resolving

the threshold issue of whether an employment

relationship exists on a task-by-task basis are

burdensome for courts and a record-keeping

nightmare for schools, internship providers, and

training programs.

As the dissent points out, the Sixth Circuit’s

decision conflicts with the decisions of three other

circuits addressing cosmetology students who performed nearly identical activities. The other circuits

concluded that the cosmetology students in each case

were not employees of their school. More fundamentally, the other circuits assessed whether an employment relationship existed by considering the totality

of the parties’ relationship, not segments thereof.

The question presented affects any FLSA case

arising from an educational, internship, or training

relationship. The Court should grant certiorari and

restore the nationwide predictability and uniformity

to the application of the FLSA in the vocationaltraining context.

STATEMENT

A. Employee status under the FLSA

Enacted in 1938, the FLSA sought “to insure that

every person whose employment contemplated

compensation should not be compelled to sell his

services for less than the prescribed minimum wage.”

Walling v. Portland Terminal Co., 330 U.S. 148, 152

(1947). To that end, the FLSA requires an employer to

pay its employees a minimum wage for services performed. See 29 U.S.C. 206, 207. The Act unhelpfully

defines “employee” as “any individual employed by an

employer” and “employ” as “to suffer to permit to

work.” 29 U.S.C. 203(e)(1), (g).

It did not take long before this Court was called

upon to address the ambiguity of these definitions. In

1947, the Court decided two cases that would set the

stage for how courts are to answer the “employee”

question: one in the context of trainees, Portland

Terminal, 330 U.S. at 149; and the other concerning

whether workers were independent contractors,

Rutherford Food Corp. v. McComb, 331 U.S. 722, 730

(1947). In both cases, the Court assessed the relationships between the employers and workers as a whole

and identified the workers as either employees or not

employees.

Portland Terminal concerned whether the FLSA

compelled a railroad to pay wages to prospective railyard workers who participated in a training program

operated by the railroad. 330 U.S. at 149. The Court

observed that the trainees had no expectations of

compensation, were not guaranteed a job, and did not

displace regular employees. Id. at 150. To determine

whether the trainees were employees, the Court contrasted an employment relationship with an educational relationship. The Court noted that the FLSA

did not treat people who worked without any expectation of compensation, and for their own advantage, as

employees. “Otherwise, all students would be employees of the school or college they attended, and as such

entitled to receive minimum wages.” Id. at 152. The

Court also observed that if the trainees had “taken

courses in railroading in a public or private vocational

school, wholly disassociated from the railroad, it could

not reasonably be suggested that they were employees

of the school.” Id. at 152–153. The Court held that the

trainees were not employees. Id. at 153.

Later that same year, the Court held that workers

in a meat-packing plant, who had ostensibly entered

into independent contracts, were actually the plant’s

employees. Rutherford Food, 331 U.S. at 723–726,

730. The Court considered the workers’ relationship

with the plant and concluded that because the circumstances as a whole suggested that they worked “as a

part of the integrated unit of production” with the

plant, they were employees under the FLSA. Id. at

729. Addressing the district court’s observation that

certain aspects of the work contracts were inconsistent with an employee relationship, the Court

stressed that the “determination of the relationship

does not depend on such isolated factors but rather

upon the circumstances of the whole activity.” Id. at

730.

The Court has since applied this analysis to

determine that homeworkers for a cooperative were

employees under the FLSA, Goldberg v. Whitaker

House Co-op., Inc., 366 U.S. 28, 33 (1961), and that

volunteers who engaged in various commercial activities for a non-profit foundation were employees

because they did so in expectation of receiving in-kind

benefits, Tony & Susan Alamo Foundation v.

Secretary of Labor, 471 U.S. 290, 301–303 (1985). In

each instance, the Court assessed the economic relationship as a whole. In Alamo, the Court described its

approach as one that assesses the “economic reality”

of the relationship between the employer and

individual. Id.

In 1975, the Department of Labor adopted a

multi-requirement test, taking six factual aspects of

the training program observed by the Court in

Portland Terminal and making each of them a

requirement that had to be met for a trainee not to be

an employee. See Reich v. Parker Fire Protection Dist.,

992 F.2d 1023, 1025–1026 (10th Cir. 1993) (quoting

Wage & Hour Manual (BNA) 91:416 (1975)). The

Department contended that the same multi-requirement test should be applied to internships and

schools. See Glatt v. Fox Searchlight Pictures, Inc.,

811 F.3d 528, 534 (2d Cir. 2016); Solis v. Laurelbrook

Sanitarium & Sch., Inc., 642 F.3d 518, 524–525 (6th

Cir. 2011).

The Department’s test was not well received.

Most circuits rejected the test as too rigid. See, e.g.,

Glatt, 811 F.3d at 536; Laurelbrook, 642 F.3d at 524–

525.1 Courts noted that under Rutherford Food, the

question of whether an employment relationship

exists must consider the totality of the circumstances

so that no single factor in isolation is dispositive.

Seven circuits rejected the Department’s test. Benjamin v. B &

H Educ., Inc., 877 F.3d 1139, 1148 (9th Cir. 2017); Schumann v.

Collier Anesthesia, P.A., 803 F.3d 1199, 1209 (11th Cir. 2015);

Parker Fire, 992 F.2d at 1027; McLaughlin v. Ensley, 877 F.2d

1207, 1209–1210 & n.2 (4th Cir. 1989); see Hollins v. Regency

Corp., 867 F.3d 830, 834–836 (7th Cir. 2017).

Parker Fire, 992 F.2d at 1027; Laurelbrook, 642 F.3d

at 525.

Having rejected the Department’s multi-criterion

test, most circuits have coalesced around the concept

that Portland Terminal requires courts to assess the

totality of the parties’ relationship to determine

whether a student, intern, or trainee is the primary

beneficiary of the educational or vocational relationship. Yet the courts have fractured over how to make

that assessment.

After a number of circuits rejected its analysis,

the Department of Labor scuttled its previous test. In

its place the Department adopted a more flexible,

multifactor approach to “align with recent case law”

and “eliminate unnecessary confusion among the

regulated community.” (ECF No. 91-1, DOL Wage &

Hour Div. Field Assistance Bulletin 2018-2 (Jan.

2018).)

The decisions below were made against this

backdrop.

B. Factual Background

Douglas J. Institute, Inc. operates cosmetology

schools in Michigan and Tennessee. Douglas J. AIC,

Inc. operates a cosmetology school in Illinois.2 App.

47a. These two entities are referred to as “Douglas J.”

As in most states, cosmetology schools in

Michigan are heavily regulated. For example, individuals cannot render cosmetology services to the public

The other Petitioners, Douglas J. Holdings, Inc., Douglas J.

Exchange, Inc., Scott A. Weaver, and TJ Weaver, do not operate

cosmetology schools. Respondents included them as defendants

based on enterprise-liability and personal-liability theories not

at issue here.

without a license, and to obtain a cosmetology license,

one must first complete 1,500 hours of study at a

licensed cosmetology school. App. 4a. This includes at

least 425 hours of classroom instruction and 965

hours of practical instruction. Ibid. These hours are

divided among various skills, including sanitation.

Michigan inspects cosmetology schools bi-annually to

ensure compliance with these state laws, including

the content of the instruction. App. 25a.

Consistent with the applicable state requirements, Douglas J’s program offers both classroom

instruction and clinic-based instruction at clinic

salons. App. 4a–5a. The clinic salons emulate a true

salon setting and are open to the public. Ibid. Only

students provide services at the clinic salon, all under

the supervision of licensed instructors. Ibid. The

instructors assist and observe the students, and grade

the students based on their technical execution. App.

Ibid. Douglas J employs daytime staff to maintain the

cleanliness of its school, guest-services personnel to

assist clients, and a nighttime janitorial service to

clean the facilities six nights each week. App. 28a.

Opportunities to practice on a guest in the clinic

salon depend on members of the public coming in, so

students are not guaranteed to have a full number of

guests each day. App. 5a–6a. To ensure that students

continue to make progress toward their statemandated minimum hours, Douglas J provides

students with activities they can perform between

seeing guests. Ibid. The activity is the student’s

choice. App. 27a. At times, this includes cleaning,

restocking, and laundering the clinic towels. App. 4a–

6a, 8a. Douglas J applies all of these hours, including

time spent on sanitation activities between guests,

toward a student’s 1,500-hour requirement. App. 4a–

6a, 8a. This system works well for Douglas J’s

students, who graduate, pass the state cosmetology

licensing exam, and find cosmetology jobs at rates

that greatly exceed the benchmarks established by its

accreditors. (Accreditor’s Report, ECF No. 56-20,

PageID 1743.) Indeed, 85% of Douglas J students pass

the state licensing exam, which the district court

recognized was a “high rate.” App. 56a.

C. Proceedings in the district court

Respondents are former Douglas J students who

graduated from Douglas J’s Michigan schools between

2011 and 2013. App. 46a. Starting in 2013, cosmetology students throughout the country sued various

cosmetology and beauty schools alleging that students

were employees under the FLSA. In 2014, respondents joined this litigation wave, filing this case in the

United States District Court for the Eastern District

of Michigan. Like all of the preceding cases, respondents alleged that they were “employees” under the

FLSA and entitled to unpaid wages. Specifically,

respondents alleged that they were entitled to compensation for all time spent working in Douglas J’s

student clinics—time they had counted toward the

965-hour and 1500-hour education requirements.

App. 8a–9a.

Respondents made these allegations even though

they later testified that they did not expect to be paid

for the time in the student clinic. App. 5a. In addition,

respondents understood that they would be responsible for finding employment after they successfully

completed their education at Douglas J. App. 5a. Each

respondent received from Douglas J what they

requested—a cosmetology education that fulfilled the

state practical-learning requirements and prepared

them to pass the Michigan cosmetology exam and find

employment in the field. Indeed, each respondent

passed the exam and obtained employment in the cosmetology industry after graduating from Douglas J.

App. 46a.

Douglas J and respondents filed cross motions for

summary judgment on the question of whether

respondents could bring claims as “employees” under

the FLSA.

The district court granted partial summary judgment to the respondents, concluding that the primarybeneficiary analysis does not require an “all-ornothing determination of employee status.” App. 60a.

The court adopted the respondents’ argument that it

could “extract” certain tasks—cleaning, doing laundry, and restocking products—from the parties’ whole

relationship and examined whether those tasks were

outside the educational framework. App. 30a. Because

the court believed that the extracted tasks were outside the educational framework, the court determined

that respondents were employees while performing

those tasks. And it did so without even applying the

primary-beneficiary test to those tasks. See App. 13a.

After extracting the sanitation tasks, the district

court granted Douglas J partial summary judgment

as to the rest of the respondents’ time in the student

clinic. App. 9a–10a.

Acknowledging that its holding was inconsistent

with the decisions of various circuits on the same

issue, the district court certified its summaryjudgment ruling for appeal. App. 10a. The Sixth

Circuit granted Douglas J’s petition to appeal. App.

82a–83a.

D. Proceedings in the Sixth Circuit

The Sixth Circuit unanimously agreed that the

district court had erred by declining to apply the

primary-beneficiary test to the extracted tasks. App.

12a–13a. But the panel divided over whether courts

should apply the primary-beneficiary test to just the

activities that the district court had extracted or to the

parties’ relationship as a whole. App. 14a, 33a–37a. A

majority of the panel agreed with the respondents

that courts should “segment” each activity and

analyze it separately. App. 12a. In dissent, Judge

Batchelder rejected this “segmented” analysis and

noted that the panel majority’s decision was inconsistent with the rulings of three other circuits. App. 33a–

37a.

The court of appeals first concluded that the tasks

that the district court had extracted from the parties’

relationship arose in the educational context. App.

12a–13a. The respondents were in the student clinics

as part of the program; they alleged that they were

assigned tasks by instructors; and they received

academic credit for the tasks performed. Ibid. Thus,

the “tasks spring from the students’ relationship with

Douglas J.” App. 12a–13a. For that reason, the court

held that the district court should have applied the

primary-beneficiary test that the Sixth Circuit had

adopted in Laurelbrook. Ibid.

The panel majority then turned to whether the

primary-beneficiary test applies to the parties’

relationship as a whole or just to the extracted tasks.

App. 14a–20a. This is where things went awry.

Despite acknowledging that the “proper approach for

determining whether an employment relationship

exists in the context of a training or learning situation

is to ascertain which party derives the primary benefit

from the relationship,” App. 11a (citation omitted),

and highlighting factors discussed by other courts

“like whether the purported employee had an expectation of compensation, derives educational value

from the work, or displaces paid employees,” ibid., the

court nonetheless concluded that relationships can,

and should, be segmented for purposes of the FLSA

analysis. App. 14a–20a. Under the panel majority’s

“targeted” approach, the primary-beneficiary analysis

is only applied to the “segments” of the relationship

for which the plaintiffs seek compensation. Ibid.

Courts must not consider any benefits that flow to

students from the rest of the relationship, but must

decide whether students are employees for the

purposes of those tasks only. App. 14a–15a, 20a, 23a.

The panel majority asserted that its segmentation

approach is consistent with the one-of-a-kind

statutory exemption from the definition of employee

for individuals who perform volunteer work for the

same public agency that employs them so long as the

volunteer work is not the same type as the work

performed as an employee. App. 15a–16a (citing 29

U.S.C. 203(e)(4)(A)). The court remanded for the

district court to apply this approach. App. 24a.

Judge Batchelder dissented in part. App. 24a–

43a. She disagreed with the panel majority’s

“targeted” approach, which she recognized as

inconsistent with Sixth Circuit precedent and

creating a circuit split with the Second, Seventh, and

Ninth Circuits. App. 24a. In deciding that cosmetology

students were not employees, each of those courts of

appeals analyzed the totality of the circumstances of

the students’ relationship with the school—not

individualized tasks. App. 37a–39a. Judge Batchelder

would have followed the approach in those cases and

applied the primary-beneficiary test to the entire

relationship between Douglas J and the students to

categorize them as either students or employees. App.

31a.

The dissent recognized that this Court has

instructed that a determination of employee status

“depends on ‘the circumstances of the whole activity’

and the parties’ respective contributions ‘to the

accomplishment of a common objective.’” App. 31a

(citing Rutherford Food, 331 U.S. at 727, 730). With

this framework, the dissent considered how to apply

the Sixth Circuit’s version of the primary-beneficiary

test, as articulated in Laurelbrook. The dissent

observed there that the Sixth Circuit had considered

several relationship-level factors such as the benefits

to the students from the “hands-on” training; the

competitive advantage the students gained in the job

market from having attended the school; and the

intangible value of “receiv[ing] a ‘well-rounded

education’ that valued ‘responsibility and the dignity

of manual labor.’” App. 33a (quoting Laurelbrook, 642

F.3d at 531). The Laurelbrook court did not, “analyze

each challenged activity . . . in isolation from the

vocational-training context.” App. 33a.

The dissent pointed out several factors that the

district court could consider under a proper approach,

but could not consider under the majority’s segmentation approach. These factors include the benefits that

flowed to both parties from the students’ work at the

clinic salons—the hands-on experience and instruction the students receive and the income Douglas J

receives from paying customers—as well as the

burdens, such as the time and effort spent supervising

and training the students. App. 33a–37a. By disallowing trial courts from considering these relationshiplevel factors, the dissent recognized that the panel

majority split with the other circuits. App. 37a–40a.

The dissent also identified that the majority

“confus[ed] the issue of whether a student is an

employee with the issue of whether an employee is

owed compensation.” App. 40a. These issues require

separate inquiries: the working time question is

“narrowly focused on whether the employee is

working during a particular time period,” whereas the

employee question “makes a broader inquiry, focusing

on the benefits accrued to each party by virtue of the

educational and working relationship.” Ibid. By

“eradicat[ing] any distinction between these distinct

legal issues,” the majority had run afoul of the

purpose of the FLSA and this Court’s guidance in

Portland Terminal. Ibid. For these reasons, the

dissent would have directed the district court to apply

the primary-beneficiary test to the entirety of the

students’ relationship with Douglas J. App. 37a.

REASONS FOR GRANTING THE PETITION

The circuits are deeply divided about how to

determine whether a student, intern, or trainee is an

employee under the FLSA. The Sixth Circuit’s

decision below sharpens the division into a clear split

on a threshold methodological issue, by directing that

employee status should be assessed on a task-by-task

basis and not based on the parties’ overall relationship. Three other circuits confronting the same fact

pattern have reached the opposite result. And the

Sixth Circuit’s minority position also conflicts with

the decisions by this Court addressing how courts are

to determine whether an employment relationship

exists for purposes of the FLSA. The Court has not

addressed the issue since its seminal decision in

Portland Terminal. The Court should grant certiorari

to provide clarity to the lower courts and to schools,

internship providers, and employers.

The decision below splits from other circuits

by assessing whether a student, intern, or

trainee is an employee on a task-by-task

basis.

The court of appeals’ decision creates a circuit

split. As the dissent observed, three circuits have held

that cosmetology students who work in their schools’

clinic salons are not employees under the FLSA. App.

37a. More fundamentally, the Sixth Circuit has split

from the other circuits on how to assess whether and

to what extent a student, intern, or trainee is an

employee. The Sixth Circuit’s segmentation approach

sets it apart from the decisions of all the other circuits.

No other circuit separates a learner’s relationship into

constituent tasks—sometimes just minutes in

length—and assesses whether the plaintiff or the

school is the primary beneficiary of each task.

1. The other circuits evaluate the entirety of the

working relationship between the student, intern, or

trainee and the school, internship provider, or trainer.

Indeed, as Judge Batchelder pointed out, three

circuits have confronted materially identical facts—

cosmetology training that entailed some cleanup and

similar tasks—and have come to the opposite

conclusion from the Sixth Circuit’s.

The Second Circuit has adopted the most widely

followed analysis. In Glatt v. Fox Searchlight Pictures,

Inc., 811 F.3d 528 (2d Cir. 2016), the court determined that the proper inquiry is “whether the intern

or the employer is the primary beneficiary of the

relationship.” Id. at 536 (emphasis added). The court

identified three features of the primary-beneficiary

test: “it focuses on what the intern receives in

exchange for the work”; it allows courts to consider the

economic reality of the parties’ relationship; and it

recognizes that the intern-internship provider

relationship differs from an employer-employee

relationship because of the intern’s “expectation of

receiving educational or vocational benefits.” Ibid.

The Second Circuit then identified a nonexhaustive list of factors to consider when determining if an intern is an employee. Id. at 536–537. As

the dissent below points out, these factors assess “the

entirety of the working relationship.” App. 38a. The

Glatt factors are:

•

The extent to which there is no express or

implied expectation of compensation.

•

“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.”

•

Whether there is a connection between the

internship and a formal education program.

•

“The extent to which the internship accommodates the intern’s academic commitments by

corresponding to the academic calendar.”

•

“The extent to which the internship’s duration

is limited to the period in which the internship

provides the intern with beneficial learning.”

•

The extent to which the intern’s activities

complement or displace the work of paid

employees.

•

The extent to which the intern and employer

understand that the intern is not entitled to a

paid job at the end of the internship.

811 F.3d at 537. The Second Circuit explained that the

breadth of the analysis may include “evidence about

an internship program as a whole rather than the

experience of particular interns.” Ibid.

Glatt addressed internships, but the Second

Circuit applied the same primary-beneficiary analysis

to cosmetology students in Velarde v. GW GJ, Inc., 914

F.3d 779 (2d Cir. 2019). There, the court explained

that the primary-beneficiary test distinguishes students from employees by “disentangling the threads of

a complex economic fabric and teasing out the

respective benefits garnered by students and their

commercial training programs . . . .” Id. at 785. The

court explained that this analysis is “key to determining whether, for FLSA purposes, a trainee is

serving primarily as an employee of that school or

training program—or is primarily a student.” Ibid. In

so doing, the court recognized that a cosmetology

student may be required to engage in some activities

that lack an educational benefit but still be a student

because their activities of chief importance are

educational in nature.

Applying the primary-beneficiary test “to balance

flexibly the benefits received by the student and the

economic realities of the student-entity relationship,” the court had no trouble concluding that the

plaintiff was the primary beneficiary of the relationship. Id. at 786. The court did so even though the

plaintiff complained that he was required to perform

clerical and janitorial tasks that he perceived to have

no educational value. Id. at 786–787.

The Ninth Circuit adopted the primary-beneficiary test as set forth in Glatt and applied it to a

cosmetology program as a whole without segmentation. Benjamin v. B & H Educ., Inc., 877 F.3d 1139,

1146–1148 (9th Cir. 2017).3 The court did so because

it believed the primary-beneficiary test “best

captures” this Court’s economic-realities test in the

educational context. Id. at 1147. The court assessed

various relationship-level factors including the

students’ lack of expectation of compensation or

employment, the students’ receipt of academic credit,

and that the students’ participation ended when they

3 The plaintiffs in Benjamin, Hollins v. Regency Corp., 867 F.3d

830 (7th Cir. 2017) discussed below, and this case filed nearly

identical complaints. (Compare Compl., ECF No. 1, PageID 1;

with Hollins v. Regency Corp., 13 C 07686 (N.D. Ill.) Compl., ECF

No. 1; Benjamin v. B & H Educ., Inc., 13-cv-4993 (N.D. Cal.)

Compl. ECF No. 1.) Despite the common allegations in the three

complaints, the district court below reached the opposite result

by segmenting the parties’ relationship.

had accumulated the state-required number of

training hours. Id. at 1147–1148. The Ninth Circuit

ruled that the cosmetology students were not

employees even though they were required to spend

time laundering linens, sanitizing work stations, and

selling products. Id. at 1142, 1147–1148.

The Seventh Circuit also assesses whether

students are employees without segmenting the

student-school relationship. Hollins v. Regency Corp.,

867 F.3d 830, 836–837 (7th Cir. 2017). In another case

involving a cosmetology student claiming to be an

employee of his cosmetology school because he was

required to sanitize the salon floor and restock

products, the court determined that the student was

not an employee because he was paying the school for

instructional time including practical-training time,

and the purportedly menial tasks were also part of the

job of the cosmetologist. Ibid. The Seventh Circuit

considered the full scope of the parties’ relationship to

conclude that no employment relationship existed.

Ibid. The purportedly menial tasks, it concluded, were

“incidental”—“not enough to tip the balance over to

the ‘employee’ side of the line.” Id. at 837. The Seventh

Circuit thus agreed that either the plaintiffs were

employees or they were not, and that there was a

“line” between them—as opposed to the Sixth Circuit’s

zigzag.4

4 The Tenth Circuit has explicitly rejected Glatt, but it also

applies its test to the relationship as a whole. Nesbitt v. FCNH,

Inc., 908 F.3d 643, 646–647 (10th Cir. 2018). The court explained

that its test “relies on the totality of the circumstances and

accounts for the economic reality of the situation.” Id. at 647. The

court reiterated the district court’s assessment, “‘[p]ut another

way, I look at the forest, not just the trees.’” Ibid.

2. It is noteworthy that there is a 3-1 split just on

the cosmetology student fact pattern. But the significance of the issue extends to numerous other internship and training scenarios. Even after adding the

circuit decisions from these other contexts to the mix,

the Sixth Circuit’s segmented approach is still distinct. The closest any other circuit has come to

endorsing a segmentation approach is a hypothetical

example from the Eleventh Circuit.

The Eleventh Circuit adopted the primarybeneficiary analysis from Glatt, including the seven

factors that, as discussed above, assess the parties’

overall relationship. Schumann v. Collier Anesthesia,

P.A., 803 F.3d 1199, 1211–1212 (11th Cir. 2015). The

court applied the primary-beneficiary analysis and

the Glatt factors to assess whether students seeking

to become certified registered nurse anesthetists were

employees of the anesthesiology practice where they

performed clinical internships. Ibid. However, despite

adopting the Glatt factors, the Eleventh Circuit

suggested that the application of the primarybeneficiary test may not result in “an all-or-nothing

determination.” Id. at 1214–1215. The court said it

could “envision a scenario” where a plaintiff primarily

benefited from an internship but “the employer also

takes unfair advantage of the student.” Ibid. The

court then posited a hypothetical example of a person

engaged in a medical-related internship who is

required “to paint the employer’s house in order for

the student to complete [the] internship.” Id. at 1215.

The court believed that in that situation, the student

would be an employee for the time spent house

painting and a student within the “legitimate confines

of the internship.”5 Ibid.

3. In contrast, the Sixth Circuit has taken a

different approach, departing significantly from the

analysis applied by all of the other circuits. Here, the

court applied the primary-beneficiary test to particular tasks within the parties’ relationship instead of

the relationship as a whole. App. 14a. The panel

majority identified the fact that its analysis allows a

person to transition from employee to student and

back from minute to minute as a “feature” of its

approach. App. 22a. As the dissenting judge noted,

this approach is at odds with the primary-beneficiary

analysis adopted by the Second, Seventh, and Ninth

Circuits. App. 37a–40a. Indeed, the Second Circuit

had expressly noted that the primary-beneficiary

analysis is not intended to require that vocational

school students receive the “optimal learning

experience.” Velarde, 914 F.3d at 787.

The panel majority’s contention that its application of the primary-beneficiary test is no different

than that of the other circuits is belied by the result

here. As the dissent explained, in every other case in

which a cosmetology student has claimed to be a

cosmetology-school employee, the circuit courts have

5 The dissent distinguishes the Eleventh Circuit’s hypothetical

by noting that it involves two distinct relationships, “clearly

demarcated by both time and place,” unlike the activities at issue

here. App. 36a.

held that the students are not employees.6 App. 37a–

40a (citing Velarde, Benjamin, and Hollins). And, as

noted above, in Benjamin and Hollins, the plaintiffs

filed complaints that are nearly identical to the

respondents’ complaint here, challenging the same

activities that the respondents challenged here—the

entire time spent in the clinic salon.

The panel majority’s assertion that its application

of the primary-beneficiary analysis is part of the mine

run of cases is further undermined by the absence of

any court adopting a segmentation or “targeted”

approach to determine whether an employment relationship exists in any context. The closest the panel

majority comes to identifying support for segmentation is its discussion of 29 U.S.C. 203(e)(4)(A). App.

16a. But that statute merely creates a narrow

exemption to the rule that a person’s employment

status is considered based on the entire relationship

between a person and their putative employer, limited

to government employees who also volunteer in some

different capacity (e.g., a police officer who volunteers

6 The district courts have reached the same result. Guzman v.

Lincoln Tech. Inst., 339 F. Supp. 3d 1048, 1057 (D. Nev. Sept. 10,

2018); Winfield v. Civitano, 2018 WL 5298748, at *7 (E.D.N.Y.

Mar. 14, 2018); Ford v. Yasuda, 2017 WL 4676575, at *5 (C.D.

Cal. June 20, 2017); Gerard v. John Paul Mitchell Sys., 2016 WL

4479987, at *8 (C.D. Cal. Aug. 22, 2016); Jochim v. Jean

Madeline Educ. Ctr. of Cosmetology, Inc., 98 F. Supp. 3d 750,

758–760 (E.D. Pa. 2015); Ortega v. Denver Inst. LLC, 2015 WL

4576976, at *17 (D. Colo. July 30, 2015); Atkins v. Capri Training

Ctr., Inc., 2014 WL 4930906, at *10 (D.N.J. Oct. 1, 2014). In the

one other case where a district court ruled that a cosmetology

student was an employee, the court later reversed itself because

of the Ninth Circuit’s decision in Benjamin. Guy v. Casal Inst. of

Nev., LLC, 2019 WL 2192112, at *5 (D. Nev. May 21, 2019).

as a sports referee). Ibid.; 29 C.F.R. 553.103(c). The

fact that the statutory exemption is necessary

evidences the FLSA’s general rule that a person is

either an employee or not an employee with regard to

a particular employer.

Contrary to the panel majority’s assertion,

Benshoff v. City of Virginia Beach, 180 F.3d 136 (4th

Cir. 1999), is not “an example of how courts have

routinely segmented working relationships for the

analysis of FLSA claims.” App. 16a. There, the court

determined that the plaintiffs, city firefighters, were

not working for the city when they volunteered for

private rescue squads. Benshoff, 180 F.3d at 147.

What mattered was that the rescue squads were not

the city; thus, the plaintiffs had two working relationships, not a single “segmented working relationship[].” Ibid.; App. 16a. The Sixth Circuit’s analysis,

by contrast, breaks a single working relationship with

a single entity into employee and not-employee segments. Nothing in Benshoff supports that approach.

Nearly 75 years after Portland Terminal, the

circuits are in disarray over how to determine

whether a student, intern, or trainee is an employee

for their school, internship provider, or trainer. The

Sixth Circuit’s approach creates a stark circuit split at

the threshold of the analysis: even the circuits that

disagree over what factors make up the “primary

beneficiary” analysis agree that those factors must be

applied to the working relationship as a whole. By

contrast, in the Sixth Circuit, the analysis applies

only to the specific activities challenged by the

plaintiff. Indeed, the Sixth Circuit considers it a

feature of its “targeted” application of the primarybeneficiary analysis that it allows a person to be both

a student and an employee for work performed during

the same shift at the same location. This Court’s

intervention is necessary to provide a uniform

national standard.

II. The Sixth Circuit’s holding is wrong.

The question of whether an employment relationship exists under the FLSA is always determined by

the economic realities of the relationship. The

primary-beneficiary test simply tailors the economicrealities assessment to the educational, internship,

and training context. The Sixth Circuit’s decision

misdirects the analysis to specific tasks and away

from the economic reality of the parties’ relationship.

First, the Sixth Circuit’s “segmentation” analysis

is contrary to this Court’s determination that the

existence of an employment relationship is based on

the economic realities of the parties’ relationship.

The FLSA applies only to employment

relationships. See 29 U.S.C. 206, 207. The FLSA

defines “employee” as “any individual employed by an

employer,” and “employ” as “suffer or permit to work.”

29 U.S.C. 203(e)(1), (g). These definitions have been

criticized, including by this Court, as “completely

circular and explain[ing] nothing.” Nationwide Mut.

Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (applying

the identical definition under ERISA). Accord

Laurelbrook, 642 F.3d at 522 (“exceedingly broad and

generally unhelpful”); Glatt, 811 F.3d at 534

(“unhelpful[]”); Vanskike v. Peters, 974 F.2d 806, 807

(7th Cir. 1992) (“circular”).

In the absence of useful statutory definitions, the

Court has directed that employment is assessed based

on the “economic reality” of the relationship between

the parties. Alamo, 471 U.S. at 301 (citing Goldberg,

366 U.S. at 33). And that assessment requires

consideration of “the circumstances of the whole

activity.” Rutherford, 331 U.S. at 730.

The Sixth Circuit acknowledged these requirements, App. 11a, but concluded that the determination of whether a student is an employee should not

be based on “the broader relationship as a whole,”

App. 14a. Instead, the court concluded that the

primary-beneficiary analysis, and thus the assessment of whether a student is an employee, should be

applied “only to that part of the relation-ship” for

which the plaintiff seeks compensation. App. 14a.

The dissent correctly explains that the “economic

reality” of the parties’ relationship cannot be

understood by assessing the relationship piecemeal.

App. 35a. “The economic reality of the parties’

relationship—the very reason for their affiliation—

cannot be appreciated” without considering all of the

circumstances. App. 35a.

Second, the Sixth Circuit conflated whether an

employment relationship exists with questions of

whether various tasks are compensable. App. 40a.

The Sixth Circuit defended its “targeted”

approach for the “segmented” work by citing to several

cases where courts had occasion to divide an

employee’s time between compensable and noncompensable activities, arguing that its new approach

was no different. App. 21a–22a. But as the dissent

pointed out, by conflating the primary-beneficiary test

with this separate question, the court “confus[ed] the

issue of whether a student is an employee with the

issue of whether an employee is owed compensation.”

App. 40a.

The FLSA only applies if there is an employment

relationship. Thus, the decision about whether time

spent on call, donning and doffing work-related garments, and on lunchbreaks is compensable follows the

threshold question of whether an employment relationship exists at all. See, e.g., Halferty v. Pulse Drug

Co., 821 F.2d 261, 264 (5th Cir. 1987), modified on

reh’g on other grounds, 826 F.2d 2 (5th Cir. 1987)

(acknowledging that when a plaintiff brings an FLSA

claim seeking compensation for certain tasks, “[t]he

first issue we address is whether, under the FLSA,

[plaintiff] is an . . . employee”). There is a good reason

for this. People do not stop being employees while they

are eating lunch. The term “employment” describes a

relationship, but the compensable-time inquiry

focuses on discrete tasks to determine whether an employee is working during a particular time. Compare

Alamo, 471 U.S. at 301 (weighing factors like the

length of the relationship between the parties and the

parties’ expectations to determine whether an

employment relationship exists), with Integrity

Staffing Sols., Inc. v. Busk, 574 U.S. 27 (2014) (considering whether time spent on security screenings fell

within the undisputed employment relationship such

that it was compensable time under the FLSA).

By prohibiting lower courts from considering

these factors and instead focusing solely on the

benefits that flow from the particular tasks at issue,

the Sixth Circuit has converted the employment

question into another version of the compensable-time

question—essentially reading the threshold employee

requirement out of the FLSA.

III. The question presented concerns an

important issue of federal law that warrants

review in this case.

The question presented raises a critical threshold

issue under an important federal statute.7 It warrants

this Court’s review because allowing the Sixth

Circuit’s approach to stand will have significant

practical consequences for vocational schools and

internship providers. Schools and internship providers must now ensure that every moment of a

vocational program or internship primarily benefits

the student over the school or risk a collective action

for minimum wages under the FLSA for some portion

of the program—at least if there is any chance they

can be sued in the Sixth Circuit. Balkanizing a single

relationship in this fashion creates uncertainty to

which schools are sure to respond by restricting the

activities for which students can obtain credit, and

lengthening the time necessary for them to meet

state-hours requirements.

This comes at a time when enrollment in

vocational education is increasing as an alternative to

traditional college. See Meg St-Espirit, The Stigma of

Choosing Trade School Over College, The Atlantic

(Mar. 6, 2019), https://tinyurl.com/4tjf2xfz (noting

that from 1999 to 2014 trade-school enrollment in the

7 This Court has explicitly acknowledged the importance of the

employee question under the FLSA before. Goldberg, 366 U.S. at

29 (granting cert. “because of the importance of the problem in

the administration of the [FLSA]”); Rutherford Food, 331 U.S. at

723 (reviewing “because of the importance of the issues presented by the petition for certiorari to the administration of the

[FLSA].”); Portland Terminal, 330 U.S. at 149 (“Certiorari was

granted because of the importance of the questions involved to

the administration of the [FLSA].”).

country rose about 67% compared to a 28% increase in

traditional college enrollment). Indeed, as traditional

college is perceived as increasingly less affordable,

vocational schools are becoming more important for

training the nation’s high school graduates. Douglas

Belkin, Why an Honors Student Wants to Skip College

and Go to Trade School, Wall St. J. (Mar. 5, 2018),

https://tinyurl.com/56zmyyfn (reporting that in light

of increasing affordability concerns over traditional

college, “U.S. high schools . . . are beginning to reemphasize vocational education”).

All of these programs are potentially implicated

by the issue presented because it applies far beyond

cosmetology schools. It affects the myriad forms of

vocational training provided by schools and

employers. Recent cases have applied the primarybeneficiary analysis to relationships ranging from

attendees at a casino’s “dealer school” to participants

in residential rehabilitation programs who are

required to perform work. Vaughn v. Phoenix House

N.Y., Inc., 957 F.3d 141 (2d Cir. 2020) (rehabilitation

program participants); Harbourt v. PPE Casino

Resorts Maryland, LLC, 830 F.3d 655 (4th Cir. 2016)

(casino dealers). In the traditional education setting,

the issue presented here arises at every level of

vocational training from high school through graduate

school. See, e.g., Laurelbrook, 642 F.3d 518 (boarding

school students); Sandler v. Benden, 715 F. App’x 40

(2d Cir. 2017) (students pursuing a master’s degree in

social work). The circuit split applies to unpaid internships too, including internships that are required to

obtain the necessary practical experience to sit for

state-licensing exams. Wang v. Hearst Corporation,

877 F.3d 69 (2d Cir. 2017) (fashion magazine interns);

Glatt, 811 F.3d 528 (film company interns);

Schumann, 803 F.3d 1199 (nurse anesthetist students

working at an internship to fulfill state-required

training requirements).

In all of these contexts, the students and interns

will likely be able to identify tasks that, in isolation,

are either so mundane or repeated so often as to have

little educational value. For every moment that an

intern shadows a senior employee, participates in

trainings, and observes meetings, the intern may

spend twice as much time making photocopies,

opening mail, and cleaning up after meetings. And for

students in vocational programs, some days “may

include relatively menial or repetitive tasks,” but this

does not mean that students do not still benefit from

gaining familiarity with the “day to day professional

experience” of a particular career. Velarde, 914 F.2d

at 787 (quotation omitted). The Sixth Circuit’s

approach subjects internship providers and

vocational-training programs to claims that an intern

who resets conference rooms after observing a

meeting, or the culinary-school student who washes

the dishes, is actually an employee when those tasks

are performed. This unworkable and uncertain segmentation will deter employers from offering internships altogether, even though internship experience

remains one of the most important factors to potential

employers.8 And it will reduce the real-world nature

of vocational training by deterring expectations that

students keep busy while accruing hours for

professional licensure.

8 See Nathalie Saltikoff, The Positive Implications of Internships

on Early Career Outcomes, Nat’l Ass’n of Colls. & Emp’rs J. (May

1, 2017) (“[S]tudents graduating with internship experiences, in

general, are more likely than students without those experiences

find

employment

upon

graduation.”),

https://tinyurl.com/y2f76me9.

The Sixth Circuit’s new test logically applies in

other contexts too, with surely unintended consequences. If students can “segment” their time between

students and employees, then employers can

“segment” a worker’s time between being an

independent contractor and employee. Indeed, in

crafting its new test, the Sixth Circuit relied, in part,

on its precedent guiding whether workers are

employees or independent contractors. App. 10a–11a

(citing Donovan v. Brandel, 736 F.2d 1114, 1116 (6th

Cir. 1984)). Employers that follow the Sixth Circuit’s

lead could eliminate worker benefits for any portion of

an employee’s work that might more closely resemble

that of an independent contractor than an employee.

In an era where work-from-home has become the

norm for many workers, this could mean a massive

loss in worker benefits.

The Court has not addressed the application of the

FLSA in the educational context since its Portland

Terminal decision. And that case was about unpaid

trainees in a company-run training program, a context that does not mirror many training relationships

today. During the Court’s nearly 75-year silence,

other courts have developed divergent approaches,

none more at odds with this Court’s authority than the

decision below.

Nor have courts been guided by the Department

of Labor. Courts are generating differing multi-factor

analyses in part because the Department of Labor has

not adopted an applicable regulation and its guidance

has been confined to summarizing judicial decisions.

After courts widely rejected the Department’s first

approach, the Department reduced the scope of its

guidance to internships only. And the Department’s

guidance is simply to adopt the factors devised by the

Second Circuit in Glatt. Administrative action is not

going to resolve the split caused by the Sixth Circuit’s

decision.

This case raises a clean, purely legal question:

does employee status on the entire working

relationship vary based on what a student does each

minute? There is nothing left to percolate below—the

federal judiciary has gone from the “economic reality”

test in Goldberg, 366 U.S. at 33, to the Sixth Circuit’s

new “targeted” approach assessing only the “segment

of work at issue.” The Sixth Circuit articulated its new

test at length, and the dissent explained in detail why

there is now a clear circuit split. The Court should

grant certiorari to resolve the circuit split and reject

the Sixth Circuit’s segmentation approach to preserve

stability for vocational schools and internships.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

WILLIAM M. JAY

GOODWIN PROCTER LLP

1900 N St., N.W.

Washington, DC 20036

GERARD J. CEDRONE

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

MATTHEW T. NELSON

Counsel of Record

AMANDA M. FIELDER

BRANDON J. CORY

WARNER NORCROSS +

JUDD LLP

150 Ottawa Avenue, NW

Suite 1500

Grand Rapids, MI 49503

(616) 752-2000

mnelson@wnj.com

MICHAEL G. BRADY

ADAM T. RATLIFF

WARNER NORCROSS +

JUDD LLP

2715 Woodward Avenue

Suite 300

Detroit, MI 48201

MARCH 17, 2021

Counsel for Petitioners

Appendix A: United States Court of Appeals

for the Sixth Circuit, Opinion in 19-1781,

Issued December 17, 2020 ................................ 1a–43a

Appendix B: United States Court of Appeals

for the Sixth Circuit, Judgment in 19-1781,

Issued December 17, 2020 ...................................... 44a

Appendix C: United States District Court

for the Eastern District of Michigan, Opinion

and Order Granting Plaintiffs’ Motion for Partial

Summary Judgment [60] and Granting in Part and

Denying in Part Defendants’ Motion for Summary

Judgment [56] in 5:14-cv-10887-JEL-MJH,

Issued October 1, 2018 .................................... 45a–70a

Appendix D: United States District Court for the

Eastern District of Michigan, Opinion and Order

Granting Defendants’ Motion to Amend and

Certify Order for Interlocutory Appeal [81],

Denying Motions for Leave to File Amicus

Curiae Brief [90, 91], And Staying Case in

5:14-cv-10887-JEL-MJH,

Issued March 1, 2019 ...................................... 71a–81a

Appendix E: United States Court of Appeals

for the Sixth Circuit, Order Granting Petition

for Permission to Appeal in 19-104,

Issued July 17, 2019 ........................................ 82a–83a

Appendix F: United States Court of Appeals

for the Sixth Circuit, Order Denying Petition

for Rehearing En Banc in 19-1781,

Issued February 9, 2021.......................................... 84a

iia

Appendix G:

29 U.S.C. §203. Definitions ...................... 85a–96a

29 U.S. Code § 206. Minimum

wage ......................................................... 97a–103a

29 U.S. Code § 207. Maximum

hours ...................................................... 104a–122a

Appendix A

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0383p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________________

JOY EBERLINE; TRACY POXSON;

CINDY ZIMMERMANN,

No. 19-1781

Plaintiffs-Appellees,

DOUGLAS J. HOLDINGS, INC.;

DOUGLAS J. AIC, INC.; DOUGLAS J.

EXCHANGE, INC.; DOUGLAS J.

INSTITUTE, INC.; SCOTT A.

WEAVER; TJ WEAVER,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 5:14-cv-10887—Judith E. Levy, District Judge.

Argued: May 5, 2020

Decided and Filed: December 17, 2020

Before: COLE, Chief Judge; BATCHELDER and

STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED:

Matthew

Nelson,

WARNER

NORCROSS + JUDD LLP, Grand Rapids, Michigan,

for Appellants. John C. Philo, SUGAR LAW CENTER

FOR ECONOMICS & SOCIAL JUSTICE, Detroit,

Michigan, for Appellees. ON BRIEF: Matthew T.

Nelson, Amanda M. Fielder, WARNER NORCROSS +

JUDD LLP, Grand Rapids, Michigan, Adam T. Ratliff,

WARNER NORCROSS + JUDD LLP, Southfield,

Michigan, for Appellants. John C. Philo, Anthony D.

Paris, SUGAR LAW CENTER FOR ECONOMICS &

SOCIAL JUSTICE, Detroit, Michigan, Kathryn

Bruner James, GOODMAN HURWITZ & JAMES,

P.C., Detroit, Michigan, for Appellees.

COLE, C.J., delivered the opinion of the court in

which STRANCH, J., joined, and BATCHELDER, J.,

joined in part. BATCHELDER, J. (pp. 18–31),

delivered a separate opinion concurring in part and

dissenting in part.

_________________

OPINION

_________________

COLE, Chief Judge. Plaintiffs Joy Eberline, Tracy

Poxson, and Cindy Zimmermann are former cosmetology school students who sued defendants Douglas

J. Holdings, Inc., Douglas J AIC, Inc., Douglas J.

Exchange, Inc., Douglas J. Institute, Inc., Scott

Weaver, and T.J. Weaver (collectively, “Douglas J”),

the operators of the Michigan cosmetology schools

that the plaintiffs previously attended. The plaintiffs

claim that Douglas J owes them compensation under

the Fair Labor Standards Act (“FLSA”) for work

performed during their time in school. The district

court granted summary judgment to the plaintiffs on

a subset of their claims, holding as a matter of law

that the plaintiffs were owed compensation under the

FLSA for certain cleaning and janitorial work they

were required to complete during their time as

students at Douglas J.

We determine that the district court properly

focused its partial summary judgment analysis on the

specific work for which plaintiffs seek compensation,

rather than on the entirety of the vocational training

program in which plaintiffs participated. It failed,

however, to correctly apply our decision in Solis v.

Laurelbrook Sanitarium & School, Inc., which governs FLSA claims in an educational setting. See 642

F.3d 518, 529 (6th Cir. 2011). We therefore reverse the

district court’s order granting summary judgment to

the plaintiffs and remand for proper application of

Laurelbrook to the work at issue.

I. BACKGROUND

A. Michigan’s Regulation of Cosmetologists

We begin by recounting the complex regulatory

structure that Michigan imposes upon cosmetologists

and the schools that train them. Michigan law

requires people to obtain a license before they can

perform cosmetology services for the public. See Mich.

Comp. Laws § 339.1203a(1). Specifically, the law

prohibits people from performing “any form of cosmetology services, with or without compensation, on any

individual other than a member of his or her

immediate family without a license.” Id. Those

services include hair care, skin care, manicuring, and

electrology. Id. § 1201(d), (f). To be licensed, a person

must meet several requirements. He or she must be at

least 17 years old and of good moral character, have

at least a ninth-grade education, complete either a

1,500-hour course of study in a school of cosmetology

or a two-year apprenticeship at a licensed cosmetology

establishment, and pass a licensing examination. Id.

§ 1207.

Cosmetology schools themselves must also be

licensed. Id. § 1203b. To maintain its license, a

cosmetology school must meet several requirements,

including that it must follow a state-mandated

curriculum. Id. § 1205. The distribution of instruction

time included in a school’s 1,500-hour cosmetology

curriculum is set by state regulation. See Mich.

Admin. Code R. 338.2161. The curriculum must

include 425 hours of classroom instruction on theory,

965 hours of practical experience, and 110 hours that

are not assigned to any specific topic. Id. Both the

theoretical and the practical hours are further

controlled in that they must be divided between

several different cosmetology topics such as facials,

manicuring and pedicuring, hairdressing, and hair

coloring, as prescribed by regulation. Id.

B. Douglas J’s Cosmetology Schools

Douglas J operates licensed cosmetology schools

in Michigan. The plaintiffs in this case attended

Douglas J’s Ann Arbor, Grand Rapids, and East

Lansing schools. At each school, Douglas J has classrooms that are used for theoretical instruction and

operates a clinic salon where students work towards

the 965-hour practical experience requirement set by

the state. The clinic salons aim to “emulate a true

salon setting,” with “numerous styling stations . . .

and a complete skin and nail spa.” (Acad. Catalogue of

Douglas J, R. 21-8, PageID 312.) The salons are open

to the general public, and customers pay for beauty

services provided by students under the tutelage of

Douglas J’s instructors. The salons also have a retail

floor where apparel, tools, merchandise, skin and hair

care products, makeup, and other products are

available for sale. Douglas J’s curriculum materials

state that this retail floor “gives students the opportunity to enhance their product knowledge and retail

sales abilities—skills essential to a successful career

in the beauty and wellness industry.” (Id.)

Only students perform cosmetology services for

customers in the salons, doing so under the supervision of licensed instructors. The instructors assist

and observe the students working in the salon in order

to evaluate their performance and ensure that the

customers receive the service for which they paid.

Ultimately, the students are graded for their work in

the salon based on the technical execution of the service performed and the customer service experience

provided.

Students sign an enrollment agreement with the

school that does not include any mention of students

being compensated for any of their time spent in

salons, or for any other portion of their relationship

with Douglas J. The plaintiffs in this case did not

expect to be paid by Douglas J during their time at the

school. The students also did not have an expectation

of employment with Douglas J upon the completion of

their educational training and knew that they would

be responsible for finding employment as a

cosmetologist after graduating.

Although students are not paid for their time in

the salons, Douglas J does make a profit from the

salons. These profits come from tuition paid by students, products purchased as required equipment by

students, beauty products sold to customers in salons,

and sales from salon services to the public. Douglas J

employs the aforementioned licensed instructors and

other guest-services personnel and also contracts with

a janitorial service. Among the guest services

personnel employed by Douglas J are aesthetics workers who are expected to sweep, dust, and polish the

salons; clean and stock the shelves; clean windows;

and generally keep the school clean.

C. Cleaning and Janitorial Activities

Students are scheduled to work in the salons

during set times, during which they may not always

have a customer to work with. Douglas J provides its

instructors with a list of acceptable activities to assign

to students during such times. Some of these tasks

appear to be related to the training of students for a

career in cosmetology. Those activities include working on techniques using mannequins, assisting fellow

students who are working with customers, and working on group projects with other students. Other tasks

may be less related to the school’s purpose. Students

could also be asked to do laundry, restock shelves with

products sold to customers, clean various stations

where customer services are performed, and clean and

replace coffee mugs, among other tasks.

Testimony from the students provides additional

insight into the nature of these general cleaning and

janitorial tasks. Eberline explained that students

were required to wash, sort, and fold towels; sweep

and dust the studio; clean glass surfaces; clean the

break room microwave; and perform other jobs as

needed. She added that students would not be permitted to leave until every station in the studio (not just

the station used by the student) was so clean that “you

could eat off of it pretty much.” (Eberline Dep., R. 6027, PageID 2325.) Poxson testified that students also

were required to clean the break room, stock product

shelves, and maintain shampoo and wax stations. She

further described how students who were behind on

their hours could also come in on days when the salon

was closed to customers and help give the salon and

classrooms a “deep cleaning.” (Poxson Dep., R. 60-28,

PageID 2404.) Zimmermann explained that students

would empty the trash and clean the boards, tables,

and floors in the school’s classrooms as well.

Instructors were encouraged to assign students these

janitorial tasks and Douglas J’s president testified

that a student who refused to perform these tasks

would be sent home for the day, denying that student

of the opportunity to gain additional hours toward his

or her state-imposed requirement on that day and

necessitating that the student make up the hours on

another day.

The amount of time spent on these activities

varied by student. Eberline estimated that she spent

a half-hour on these tasks each day, and nearly four

hours on slower days. The plaintiffs extrapolate

Eberline’s estimates to conclude that she spent

roughly 348 hours on these tasks over the course of

her time at Douglas J. Using similar methods, they

estimate that Poxson spent 304 hours doing these

tasks and that Zimmermann spent at least 150 hours.

The plaintiffs argue that the cleaning and janitorial activities are not included in Douglas J’s curriculum or in the state requirements for cosmetology

schools.1 Moreover, Douglas J does not provide

1 Douglas J and the dissent assert that these activities may have

been included in the curriculum. Douglas J says that “Plaintiffs

agree that, as part of their educational experience in the clinic,

Douglas J trained them on proper sanitation procedures.”

Appellant Br. at 16. Michigan regulations do require instruction

on sanitation and patron protection in cosmetology schools. See

Mich. Admin. Code R. 338.2161. This instruction, however,

classroom instruction on these tasks or supervise students as they perform them as it does for curriculumrelated activities in the salons, because, unlike other

tasks in the salon, student performance on these

activities is not graded by Douglas J’s instructors. To

the extent that students did not complete the cleaning

and janitorial tasks, they fell to paid workers.

Students, however, received academic credit for

the time spent on these tasks in the sense that the

time went toward their total hours of practical experience required for graduation. Eberline testified that

the students’ logs for their hours—which specify how

many hours were spent on particular tasks—did not

include a spot for hours spent on these cleaning and

janitorial tasks, so students were instructed to

“magically make those numbers work” by apportioning the hours spent on these tasks to the areas where

the students were short. (Eberline Dep., R. 60-27,

PageID 2340.) Whether Douglas J was permitted to

issue credit for this time under state regulation is

unclear, see Mich. Admin. Code R. 338.2161, but the

parties do not dispute that all plaintiffs were credited

for their time working on janitorial and cleaning tasks

while at Douglas J and graduated on time.

appears to be distinct from the tasks for which the students are

seeking compensation, as the regulations refer to instruction on

ensuring proper sanitation of a cosmetology station before and

after providing service to a customer and the tasks the students

complain about are undertaken when there are no customers for

the student to serve, or when not in the salons at all. Moreover,

the time spent on the tasks at issue here seems to exceed the

amount of time that the regulations allow schools to devote to

sanitation. See id.

D. District Court Proceedings

The students filed a complaint under the FLSA in

the United States District Court for the Eastern

District of Michigan, seeking compensation for all

time spent working in Douglas J’s clinics. The complaint included allegations stating a collective action

and that the three named plaintiffs represent a class

of similarly situated individuals. The parties agreed,

however, to stay conditional class certification proceedings while they litigated the question of liability

through summary judgment. Class certification

proceedings remain stayed pending this appeal. After

discovery concluded, the students moved for partial

summary judgment, arguing that there was no genuine dispute of material fact as to their claim that they

are entitled to compensation for time spent working

on general cleaning and janitorial tasks. The plaintiffs

did not seek summary judgment on their other claims.

Douglas J also moved for summary judgment as to all

the plaintiffs’ claims.

The district court granted the plaintiffs’ motion

for partial summary judgment on the grounds that the

cleaning and janitorial activities were far removed

from the educational relationship between the parties

and that Douglas J was taking advantage of the

students by forcing them to perform the subject tasks.

The district court found that the students were therefore employees under the FLSA. Accordingly, the

court denied in part Douglas J’s motion for summary

judgment, but it granted summary judgment for

Douglas J on the plaintiffs’ remaining claims. The

plaintiffs asked the district court to reconsider its

decision to grant summary judgment to Douglas J on

the plaintiffs’ other claims for compensation. The dis-

10a

trict court denied the plaintiffs’ motion for reconsideration without prejudice, stating that the plaintiffs

could refile following our decision in this appeal.

The district court then granted Douglas J’s motion

to certify the summary-judgment order for appeal to

this court under 28 U.S.C. § 1292(b). We granted

Douglas J’s request for an interlocutory appeal. Thus,

we have appellate jurisdiction over Douglas J’s appeal

under 28 U.S.C. § 1292(b). All the issues raised in this

appeal are legal ones, so our review of the district

court’s grant of summary judgment is de novo. Chao

v. Double JJ Resort Ranch, 375 F.3d 393, 396 (6th Cir.

2004).

II. ANALYSIS

The FLSA requires that employers pay employees

a minimum wage. 29 U.S.C. § 206(a). The law—

perhaps tautologically—defines “employee” to include

“any individual employed by an employer.” Id.

§ 203(e)(1). “Employ” is defined as “to suffer to permit

work.” Id. § 203(g). “Employers” include “any [individual, partnership, association, corporation, business

trust, legal representative, or organized group of

persons] acting directly or indirectly in the interest of

an employer in relation to an employee.” Id. § 203 (a),

(d). The question in this case is whether students of

Douglas J’s cosmetology schools are employees at all.

In applying the FLSA’s definition of employee

status, courts have developed tests to analyze the

question of whether an employment relationship

exists. “Whether a particular situation is an employment relationship is a question of law.” Fegley v.

Higgins, 19 F.3d 1126, 1132 (6th Cir. 1994). In

general, “it is the ‘economic reality’ of the relationship

between parties that determines whether their

11a

relationship is one of employment or something else.”

Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d

518, 522 (6th Cir. 2011) (quoting Tony & Susan Alamo

Found. v. Sec’y of Labor, 471 U.S. 290, 301 (1985)).

This standard “is not a precise test susceptible to

formulaic application.” Ellington v. City of East

Cleveland, 689 F.3d 549, 555 (6th Cir. 2012). Rather,

the employment relationship “is to be determined on

a case-by-case basis upon the circumstances of the

whole business activity.” Donovan v. Brandel, 736

F.2d 1114, 1116 (6th Cir. 1984) (citing Rutherford

Food Corp. v. McComb, 331 U.S. 722 (1947)).

For vocational schools, we have rejected a

proposed bright-line rule that no student can ever be

considered an employee of his school. Laurelbrook,

642 F.3d at 523–24. In Laurelbrook, we explained that

“determining employee status by reference to labels

used by the parties is inappropriate.” Id. at 524.

Rather, “the proper approach for determining

whether an employment relationship exists in the

context of a training or learning situation is to ascertain which party derives the primary benefit from the

relationship.” Id. at 529. To determine the primary

beneficiary, we look at factors like whether the purported employee had an expectation of compensation,

derives educational value from the work, or displaces

paid employees. Id. And we may consider “[a]dditional

factors that bear on the inquiry . . . insofar as they

shed light on which party primarily benefits from the

relationship.” Id. A plaintiff who claims entitlement to

compensation under the FLSA for work done in a

training or learning situation will only be considered

an employee when she does not derive the primary

benefit from the relationship. Id.

12a

But before reaching the primary-beneficiary

analysis in this case, we must answer two questions.

First, do we apply the primary-beneficiary test at all

when the work at issue is not part of the school’s

educational curriculum? Second, given that the

students claim an entitlement to compensation for

some, but not all, of the work they performed during

the course of the vocational program, do we apply the

primary-beneficiary test to only that targeted

segment of the program at issue or to the educational

program as a whole? As we explain below, the

Laurelbrook test governs this case and applies only to

the activities at issue in the claim for compensation.

A. Applicability of the Primary-Beneficiary

Test

We turn first to the question whether the primarybeneficiary test applies to the subset of the plaintiffs’

claims presently before us. The district court determined that the test does not apply. It correctly observed that the primary-beneficiary test as announced

in Laurelbrook is limited to situations where the

activity in question occurs in a training or learning

situation. After concluding that these activities fell

outside of that situation, and thus the scope of

Laurelbrook’s holding, the district court fashioned a

new test to ascertain whether the tasks at issue

constitute compensable work.

Under the district court’s approach, a court would

ask whether the activity in dispute was “‘well beyond

the bounds of what could fairly be expected to be part

of the internship’ or educational program.” Eberline v.

Douglas J. Holdings, Inc., 339 F. Supp. 3d 634, 643

(E.D. Mich. 2018) (quoting Schumann v. Collier

Anesthesia, 803 F.3d 1199, 1214–15 (11th Cir. 2015)).

If it is, the court would then consider “whether the

13a

employer is taking unfair advantage of the student’s

need to complete the internship or educational program.” Id. If the court found that the employer was in

fact taking unfair advantage of the student’s need to

complete the educational program, it would determine

that the relationship is one of employment for FLSA

purposes so long as the time spent on the activities

was not de minimis. It was under this test that the

district court found that the plaintiffs were employees

under the FLSA and granted their motion for partial

summary judgment.

The district court erred in using this new test. Its

error stems from its central premise for departing

from Laurelbrook’s test: that the activities at issue are

“not within the training or learning situation.” Id. at

645. To be sure, the janitorial tasks assigned to the

plaintiffs were not a part of Douglas J’s written

curriculum, not required by the state regulations

governing cosmetology education, and not directly

supervised by instructors. But other aspects of the

relationship between Douglas J and its students lead

us to conclude that the janitorial work took place

within the educational context, regardless of its

ultimate educational benefit. The students were in the

salons as part of the educational program, were

assigned the tasks at issue by the same instructors

who oversaw their practical training, received

academic credit for the time spent on the tasks, and

were told that they would be sent home—potentially

delaying their graduation from the school—if they

failed to complete the assigned tasks. We therefore

conclude that the tasks spring from the students’

relationship with Douglas J, meaning that we must

analyze this FLSA claim related to those tasks under

the primary-beneficiary test as laid out in

Laurelbrook.

14a

B. Application of the Primary-Beneficiary

Test

We now turn to the second question: How does the

primary-beneficiary test apply in a case where

students in a training or learning environment seek

compensation for some, but not all, of the work they

perform during the course of the educational relationship with the school? The parties present competing

visions. The plaintiffs contend that we should apply

the primary-beneficiary test only to the segment of

time for which they seek compensation, asking which

party is the primary beneficiary of plaintiffs’ janitorial

work. Douglas J asks us to apply the test to the entire

relationship between the parties and would have us

conclude that FLSA plaintiffs are not entitled to compensation for any of the work they perform within the

vocational training program so long as the trainees

are the primary beneficiaries of the program as a

whole.

We conclude that when a plaintiff asserts an

entitlement to compensation based only on a portion

of the work performed in the course of an educational

relationship, courts should apply the primary-beneficiary test we laid out in Laurelbrook only to that part

of the relationship, not to the broader relationship as

a whole.

1. Propriety of a Targeted Approach for

the Segment of Work at Issue

We start with Laurelbrook itself. There, the

putative employer was a Seventh-Day Adventist high

school where students learn “in both academic and

practical settings.” Laurelbrook, 642 F.3d at 520. As

part of the practical curriculum, and in line with the

school’s “stated mission,” students were assigned to

15a

work in the school’s kitchen and housekeeping

departments, as well as in a sanitarium operated by

the school. Id. The Secretary of Labor sued the school,

contending that the students were employees under

the FLSA based on the work they did as part of the

school’s practical learning program. Id. at 519.

After explaining the rationale for the primarybeneficiary test, we analyzed the work performed as

part of the school’s vocational training. Id. at 529–32.

Instructive here, our analysis focused exclusively on

the work that was the subject of the case. Id. To

determine who was the primary beneficiary of this

work, we considered the benefits of the students’

kitchen, housekeeping, and sanitarium work to the

school and the benefits that the students received

from the work, ultimately concluding that the

students were the primary beneficiaries because the

practical learning that the work afforded students

was part of the school’s educational program. Id.

Notably, we did not consider the unchallenged parts

of the program, such as the parts of the curriculum

that included traditional classroom instruction, as no

party contended that the high school students were

employees during the time they spent in class and

only the vocational program was at issue. Id. Thus, we

effectively adopted the test that the plaintiffs ask us

to use here; we considered whether the students were

the primary beneficiaries of the activities for which

their status as employees was in dispute.

Comparisons to other areas of employment also

support the conclusion that relationships can be segmented for purposes of an FLSA analysis such that a

person is an employee in one part of the relationship

but not another. For example, the FLSA exempts from

16a

the definition of “employee” “any individual who volunteers to perform services for a public agency which

is a State, a political subdivision of a State, or an

interstate governmental agency” when the individual

“receives no compensation” and the services she

volunteers to perform 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).

The Department of Labor has issued regulations

governing when a person who is employed by the state

in one capacity can be considered a volunteer in

another capacity. See 29 C.F.R. § 553.103. These

regulations clarify that a person can simultaneously

have an employment- and a non-employment relationship with the same entity. The Fourth Circuit applied

§ 203(e)(4)(A) and the accompanying regulations to a

case involving city firefighters who also worked on

volunteer rescue squads that performed emergency

medical services for the city. See Benshoff v. City of

Virginia Beach, 180 F.3d 136 (4th Cir. 1999). It

determined that the firefighters were not employees

entitled to compensation when it came to their work

on the volunteer rescue squads, even though they

were employed by the city as firefighters. Id. at 149.

This is just one example of how courts have routinely

segmented working relationships for the analysis of

FLSA claims.

Other circuits that have considered FLSA claims

brought by cosmetology students also use a targeted

approach that focuses on the segments of work at

issue. The Ninth Circuit, for example, considered a

case where students sought compensation for all time

spent in salons but not their time receiving classroom

instruction and applied the primary-beneficiary test

to the time spent in the salons without considering the

17a

time spent in the classroom. Benjamin v. B&H Educ.,

Inc., 877 F.3d 1139, 1142, 1147–48 (9th Cir. 2017).

And the Seventh Circuit’s analysis in Hollins v.

Regency Corp. encompassed a similar scope, focusing

on how the time in the salons related to the

educational goals of the cosmetology program to reject

a claim that the students were entitled to compensation. See 867 F.3d 830, 836–37 (7th Cir. 2017). In the

end, these cases rejected the plaintiffs’ claims not

because they were the primary beneficiaries of their

entire relationship with their schools, but because the

plaintiffs received the primary benefit of the segments

of the relationship that were in dispute.

The dissent takes a different view of other circuits’

approach to this question, arguing that we have split

with three other circuits that “have held that cosmetology students who work at for-profit cosmetology

schools are not employees under the FLSA.” Dissent

at 27. As an initial matter, our opinion today only

addresses how district courts should analyze claims

for compensation related to a segment of work

performed by a student at a vocational school, and we

do not reach the question of whether the plaintiffs

prevail under that standard. So the fact that other

circuits resolved broader student claims in favor of

cosmetology schools based on the facts of those cases

does not create a circuit split. This is especially so

given that our precedent directs us to resolve disputes

in this context by turning to the “economic reality” of

the relationship between the parties “on a case-bycase basis” and that employment status is “not fixed

by labels that parties may attach to their relationship.” Laurelbrook, 642 F.3d at 522 (quoting first

Alamo, 471 U.S. at 301, then Donovan, 736 F.2d at

1116, then Powell v. U.S. Cartridge Co., 339 U.S. 497,

528 (1950) (Frankfurter, J., dissenting)).

18a

Insofar as the dissent argues that we have

deviated from other circuits or our own precedent by

applying the primary-beneficiary test to the segment

of work at issue, it is similarly mistaken. Despite

saying that other courts have “eschewed a ‘segmentation’ approach,” Dissent at 27 n.7, the dissent does not

identify a single case where another court has

addressed a claim for compensation limited to a

portion of an educational program and considered elements of the parties’ broader relationship in applying

the primary-beneficiary test. Cf. Velarde v. GW GJ,

Inc., 914 F.3d 779, 785–89 (2d Cir. 2019) (analyzing a

cosmetology student’s work in the clinic salon when

he claimed an entitlement to compensation for all

time in the salon); Benjamin, 877 F.3d at 1147–48

(same); Hollins, 867 F.3d at 837 (same, and noting

that its holding was specific to the record of

challenged activities before the court); Jochim v. Jean

Madeline Educ. Ctr. of Cosmetology, Inc., 98 F. Supp.

3d 750, 752, 755, 757–60 (E.D. Pa. 2015) (same);

Ortega v. Denver Inst. LLC, No. 14-cv-01351-MEH,

2015 WL 4576976, at *13–17 (D. Colo. July 30, 2015);

Atkins v. Capri Training Ctr., Inc., No. 2:13-cv-06820

(SDW), 2014 WL 4930906, at *7–10 (D.N.J. Oct. 1,

2014); Lane v. Carolina Beauty Sys., Inc., No.

6:90CV00108, 1992 WL 228868, at *3–4 (M.D.N.C.

July 2, 1992) (considering a case where a former

participant in a cosmetology school’s teacher-training

course sought compensation for all work done during

enrollment in the course). Simply put, the dissent does

not cite a case from this court or any other that used

an approach inconsistent with the one we describe

today. The primary-beneficiary test allows courts to

separate claims brought by students who are merely

doing the work their curriculum requires from those

doing work that does not provide a similar

19a

curriculum-based benefit to the students. Through

this test, we advance the FLSA’s stated objective of

ensuring that a minimum wage is paid to all

employees “engaged in commerce.” 29 U.S.C. § 206(a).

Adopting Douglas J’s proposed approach of applying

the primary-beneficiary test to the whole educational

program as opposed to the portion of the program

actually at issue runs counter to the purpose of the

primary-beneficiary test. It would raise the potential

of zones of exploitation in which schools could use

their students in place of paid employees to complete

work unrelated to the educational purpose of the

program, so long as the amount of extra work was not

so large as to render the school the primary beneficiary of the overall relationship. Nothing in our case

law, nor in the language of the statute, indicates that

Congress intended or anticipated this outcome under

the FLSA. Cf. Alamo, 471 U.S. at 301–02 (noting that

permitting an enterprise to use a workforce of volunteers who otherwise meet the criteria for employee

status might have a wage-depressing effect across the

market, which would be contrary to the purpose of the

FLSA).

Here, because of Michigan’s occupational licensing requirements, schools like Douglas J are an access

point through which a person who wants to make a

living as a cosmetologist must pass. To the students,

then, the benefit of attending cosmetology school is

not merely academic, it is a statutory requirement

they must fulfill before they can work in their chosen

profession. Douglas J’s approach would let a school

extract uncompensated labor from students that is

non-educational so long as the value of that labor to

the school does not exceed the value of the overall

relationship to the students. But the benefit to the

student is being able to work at all. In other words,

20a

this approach could lead to the type of exploitation

that the FLSA was designed to combat.

Our targeted approach solves this problem in

accordance with the purpose of the FLSA. It rejects

claims for compensation where the school receives an

incidental benefit from a student’s work as part of the

educational program. But it allows for the possibility

of compensation for labor that—although related to

the educational relationship in an attenuated way—

does not actually provide a benefit to students that

exceeds the benefit of free labor received by the school.

The dissent also states that our approach isolates

the challenged activities from their educational

context. Dissent at 24. Quite the opposite. Our holding

that the primary-beneficiary test may be applied

specifically to a segment of the vocational training

program does not mean that the segment being

analyzed can or should be taken out of its context.

Where the segment of work at issue provides benefits

as a result of its place in the educational relationship,

our test would consider those benefits. Thus, for

example, the district court should consider the fact

that the students here received academic credit for the

challenged work and should evaluate the relationship

between these activities and the school’s curriculum.

The district court should not, however, consider

benefits that come from a different part of the broader

relationship that is not connected to the work at issue.

2. Practical Considerations

Douglas J raises a variety of practical concerns

with our application of Laurelbrook to this case. These

concerns include that the approach will result in

conflicting determinations based on similar facts, will

21a

make FLSA claims in vocational-learning relationships more complex, and will require courts to

separate a broader relationship into compensable and

non-compensable tasks—all of which are related.

None present serious challenges to the administrability of this rule.

The FLSA has long required fact-intensive analyses of employment circumstances. With any legal test,

including the one that Douglas J proposes for this

case, there is a possibility that different courts or

judges might reach differing conclusions based on

similar facts. Appellate review adequately addresses

this concern.

Analyzing segments of the broader relationship

also does not make the district court’s job unduly complex. Courts are well-situated to conduct such a targeted analysis. We already do so, for example, when

we consider claims brought by employees seeking

compensation for their lunch breaks. In Jones-Turner

v. Yellow Enterprise Systems, LLC, we held that

emergency medical technicians were not entitled to

compensation for their lunch breaks when they were

expected to respond to emergency calls but were not

required to stay in their trucks or perform other duties

during the breaks. 597 F. App’x 293, 297–98 (6th Cir.

2015). We have also determined that mail carriers

were not entitled to compensation for lunch breaks

when they remained responsible for items and

receipts that they were carrying during the break but

were not otherwise required to perform duties related

to their jobs during those periods. Hill v. United

States, 751 F.2d 810, 814 (6th Cir. 1984). Similarly,

we found that machine workers were not entitled to

compensation when they were occasionally required

22a

to respond to supervisor inquiries or machine breakdowns during the breaks because those interruptions

were rare. Myracle v. General Elec. Co., 33 F.3d 55,

1994 WL 456769, at *5 (Table) (6th Cir. 1994) (per

curiam). In these cases, we require an analysis of the

specific facts of the plaintiff employees’ lunch break to

determine if the plaintiffs are acting as employees

during that time, an FLSA analysis that courts have

experience undertaking. Thus, we are not persuaded

that they would have difficulty analyzing segments of

the broader educational relationship between school

and student.

As for Douglas J’s final concern, it is correct that

our approach may result in a court finding some tasks

to be compensable but not others. But this is a feature

of the approach, as it allows people who are acting as

employees under the FLSA to be compensated

accordingly. And to the extent that Douglas J fears an

increase in claims related to segments of an educational relationship, we have established safeguards.

We already reject claims for compensation when they

are based on activities undertaken for de minimis

amounts of time or are too difficult in practice to

record. Aiken v. City of Memphis, 190 F.3d 753, 758

(6th Cir. 1999). Indeed, if the time the plaintiffs spent

on the extracurricular janitorial and cleaning tasks

were de minimis, we might do so in this case. The

record, however, reflects that some of the plaintiffs

may have spent more than 20 percent of their time at

Douglas J on those tasks. That amount of time is

unlikely to be de minimis, and it is appropriate that

our test requires a separate analysis of it.

3. Remand

Today, we only address the proper test to analyze

claims like the one before us. As we have discussed,

23a

the district court did not apply this test when it

granted the plaintiffs’ motion for summary judgment.

And absent exceptional circumstances, we do not

resolve issues until the district court has ruled on

them first. E.g., United States v. Poole, 407 F.3d 767,

773 (6th Cir. 2005). Exceptional circumstances are not

present here, so we decline to reach a conclusion as to

which party is the primary beneficiary of the time the

plaintiffs spent working on general cleaning and janitorial tasks. Accordingly, we do not hold that either

party should prevail under the test we now direct the

district court to apply, and our analysis should not be

read to imply that one party is more likely to prevail

on the merits.

Instead, we remand to the district court to apply

the primary-beneficiary test to the plaintiffs’ motion

for partial summary judgment as described herein.

This will allow the district court to consider the multitude of factors relevant to the primary-beneficiary

inquiry in this case. Under Laurelbrook these include:

the plaintiffs’ lack of expectation of payment; the

educational value, both tangible and intangible, of the

tasks under scrutiny; and the displacement of paid

employees to the school’s competitive benefit in the

commercial marketplace, see 642 F.3d at 522, 529,

531; as well as any other considerations that may

“shed light on which party primarily benefits from the

relationship,” id. at 529. Such additional considerations might include: the mandatory or voluntary

nature of the tasks; the relationship of the work at

issue to the school curriculum, state regulations, and

the school’s stated mission and educational philosophy; the type of work performed in the corresponding

real-world commercial setting; and the academic

credit received by the plaintiffs for the work. Additionally, before concluding any portion of plaintiffs’

24a

work for Douglas J is compensable, the district court

should determine whether the work at issue is for de

minimis amounts of time or is practically speaking too

difficult to record. Aiken, 190 F.3d at 758.

III. CONCLUSION

We therefore reverse the district court’s order

granting partial summary judgment to the plaintiffs

and remand this case to the district court for further

proceedings consistent with this opinion.

__________________________________________

CONCURRING IN PART AND

DISSENTING IN PART

__________________________________________

BATCHELDER, Circuit Judge, concurring in part

and dissenting in part. Three cosmetology-school

graduates seek compensation for unpaid labor under

the Fair Labor Standards Act (FLSA), 29 U.S.C.

§§ 201 et seq., claiming they worked as employees

when they restocked beauty products and cleaned

their schools’ clinic salons. To determine whether an

employment relationship exists in the educational

context, we apply the primary-beneficiary test developed in Solis v. Laurelbrook Sanitarium and School,

Inc., 642 F.3d 518, 529 (6th Cir. 2011). Because the

district court failed to properly apply that test, I

concur in the judgment to reverse and remand. But

the majority opinion likewise fails to properly apply

our precedent and unjustifiably creates a circuit split

with the Second, Seventh, and Ninth Circuits. I therefore respectfully dissent from the rest of the majority

opinion.

25a

Michigan heavily regulates its cosmetology

industry to ensure the health and safety of patrons

receiving cosmetic services. Michigan’s Department of

Licensing and Regulatory Affairs (LARA) establishes

sanitation standards necessary “to prevent the

spreading of an infectious or contagious disease” and

conducts routine inspections to ensure compliance

with those standards. Mich. Comp. Laws

§ 339.1203(1). LARA expects cosmetologists to follow

general state and local health regulations, see Mich.

Admin. Code R. 338.2171(2)(b), and for salons to be

“clean, safe, and sanitary at all times,” id. § 338.2173.

Hair clippings must be disposed of after servicing

every patron; fresh towels must be supplied for every

service; and sinks, tubs, and shampoo bowls must be

“thoroughly cleanse[d] and sanitize[d] . . . immediately after each use.” Id.

Individuals cannot render cosmetology services

without a license, which can be obtained only after

completing 1,500 hours of study at a licensed cosmetology school. Mich. Comp. Laws §§ 339.1203a(1),

.1207(d). Schools must provide at least 190 hours of

combined classroom and practical instruction—90

classroom hours and 40 practical hours—on sanitation, patron protection, personal hygiene, and salon

management. Mich. Admin. Code R. 338.2161.1 These

health and safety topics are tested on the stateadministered licensing examination; students must

1 The LARA requires cosmetology schools to allocate a certain

amount of time to each subject but allows up to 110 “unassigned

hours”—i.e., hours not allocated to any specific topic. Mich.

Admin. Code R. 338.2161. So, the regulation allows cosmetology

schools to assign up to 150 hours of practical work related to

sanitation-related topics.

26a

achieve a score of 75% to pass the test and obtain a

license. Id. §§ 338.2139, .2161. Fifteen percent of the

multiple-choice questions test knowledge of infection

control and client protection, covering topics such as

disinfectants, bacteria, virus, fungus, and decontamination. R. 60-40, PageID: 2664. Ten percent of the

questions ask about Michigan’s cosmetology regulations, including licensing requirements and salonmanagement responsibilities. Id. at 2665. The

multiple-choice exam also includes questions on

relevant safety precautions for every cosmetic service.

Id. at 2664–65. The “practical portion” of the exam

scores students on whether they disinfected their

workstations before and after servicing a client, id. at

2667, 2670, and practiced other safety criteria during

every cosmetic service, see, e.g., id. at 2668 (scoring

students on whether they changed towels and cleaned

spills).

The Douglas J Institute and its affiliate

companies (together, Douglas J) operate several statelicensed, for-profit cosmetology schools in Michigan.

Douglas J implements the LARA’s curriculum

requirements regarding sanitation and patron

protection through five units of instruction. The first

unit includes classroom instruction on safety requirements and guest-servicing skills, offering students

opportunities to practice and test their knowledge. R.

56-11, PageID: 1644. According to Douglas J’s written

curriculum, students are taught how to: clean makeup

brushes and wax pots, see R. 60-41, PageID: 2684,

2687; prevent infections, id. at 2688; and maintain a

professional salon appearance, id. at 2677, 2695,

2700. Students practice sanitizing and disinfecting

their tools, id. at 2679, 2683, 2688, 2700, and are

tested on infection control, id. at 2689, and maintaining a professional image, id. at 2677.

27a

The next four units combine classroom instruction

with practical instruction at Douglas J’s student clinic

salons. R. 56-11, PageID: 1644. In the classroom,

students learn about Michigan’s cosmetology regulations, R. 60-41, PageID: 2708, essential business

standards, id. at 2709, 2710, and salon-life expectations, id. at 2712, 2713. Under the supervision of

licensed instructors, students receive practical

instruction by providing a range of cosmetic services

to clients.

Due to need-work limitations, Douglas J students

cannot spend all of their clinic time servicing clients;

there are too many students and not enough clients.

Douglas J provides its instructors with a list of

activities for those students not working with clients,

including practical work, styling practice, mannequin

competitions, marketing, guest services, and general

salon aesthetics. R. 60-37, PageID: 2652.2 Students

choose how to spend their time; Douglas J does not

force students to participate in any particular activity.

See, e.g., Eberline Dep., R. 60-27, PageID: 2314

2 The record does not support the majority’s assertions that the

cleaning tasks—i.e., the general salon aesthetics activities—are

unsupervised by Douglas J’s instructors. See e.g., Poxson Dep.,

R. 60-28, PageID: 2403 (affirming that the students’ cleaning

efforts were “supervised by instructors”); Eberline Dep. 60-27,

PageID: 2326 (explaining that students would not receive credit

for a service if they had not swept the floor). Indeed, the majority

cites Eberline’s testimony for the proposition that “students

would not be permitted to leave until every station in the studio

(not just the station used by the student) was so clean that ‘you

could eat off of it pretty much.’” Majority Op. at 5 (citing Eberline

Dep., R. 60-27, PageID: 2325). If the Douglas J instructors were

not assessing the quality of the students’ cleaning efforts, who

was?

28a

(explaining that students could choose to clean, concentrate on “bookwork” and “homework assignments”

or “work[] on a mannequin”). Douglas J applies the

hours spent on these activities toward the students’

1,500-hour requirements. A student who refuses to

engage in any of the activities, however, cannot accrue

hours because “sit[ting] around and play[ing] around

on Facebook,” does not count toward the state’s

curriculum requirements. Weaver Dep., R. 60-34,

PageID: 2571–72.

Douglas J employs daytime support staff to

maintain the cleanliness of its schools. The aesthetics

personnel are responsible for cleaning the clinic

salons; guest-services personnel assist clients and also

clean the salons. See, e.g., id. at 2564–66; R. 61,

PageID: 2808. The daytime staff’s cleaning efforts are

supported by a nighttime janitorial service, which

cleans the facilities six nights each week. Weaver

Dep., R. 60-34, PageID: 2566.

II.

Three former Douglas J students—Joy Eberline,

Cindy Zimmerman, and Tracy Poxson—brought a

putative class and collective action under the Fair

Labor Standards Act (FLSA) for their unpaid labor at

the clinic salons. They seek compensation for the

hours spent restocking products and cleaning the

salons, as well as the hours spent providing personal

services to paid customers. Douglas J moved for

summary judgment on all claims. The students filed a

motion for partial summary judgment, arguing that

there was no genuine issue of material fact as to

whether the students were employees when they

conducted general labor and janitorial tasks that “consumed a significant portion of student time, displaced

29a

paid workers, and generated substantial profits for

the schools’ owners.” R. 60, PageID#: 2050.

The district court granted the students’ motion.

See Eberline v. Douglas J. Holdings, Inc., 339 F. Supp.

3d 634, 636 (E.D. Mich. 2018). The district court

recognized that in the educational context, the Sixth

Circuit determines whether an employment relationship exists by applying the primary-beneficiary test

developed in Solis v. Laurelbrook Sanitarium and

School, Inc., 642 F.3d 518 (6th Cir. 2011). Id. at 641–

43. But the district court found that “an all-or-nothing

determination of employee status is not appropriate

in every learning or training situation.” Id. at 643

(citing Schumann v. Collier Anesthesia, P.A., 803 F.3d

1199, 1214–15 (11th Cir. 2015)). The district court

therefore created a two-part test whereby courts

determine if an activity is within the learning situation and if it is, Laurelbrook’s primary-beneficiary

test applies. Id. at 643. But the district court said that

if an activity is

well beyond the bounds of what could fairly be

expected to be a part of the internship or

educational program, then the [c]ourt must

look at whether the alleged employer is taking

unfair advantage of the student’s need to

complete the internship or educational program. If so, then the student would qualify as

an employee for all hours expended in tasks so

far beyond the pale of the contemplated

internship that it clearly did not serve to

further the goals of the internship.

Id. at 643–44 (internal citations, quotation marks,

and editing marks omitted). Finally, the district court

explained that the complained-of activity must not be

“de minimis” because the FLSA requires payment

30a

only where the “employee is required to give up a

substantial measure of his time.” Id. at 647 (quoting

White v. Baptist Mem’l Health Care Corp., 699 F.3d

869, 873 (6th Cir. 2012)).

Applying this standard, the district court found

that restocking products and cleaning the salons were

not educational in nature. Id. at 644–46. Douglas J

took unfair advantage of the students, the district

court said, because it required their students to clean

and therefore exploited the “stark power imbalance”

between the parties. Id. at 646–47. The district court

concluded that the amount of time spent on these

activities was not de minimis and granted the plaintiffs’ motion for partial summary judgment. Id. at 647.

Douglas J moved for an interlocutory appeal,

arguing that the district court’s order was contrary to

the overwhelming weight of authority. Pursuant to 28

U.S.C. § 1292(b), the district court certified its order

for interlocutory appeal, defining the issue as

“whether cleaning, laundering towels, and restocking

products are activities that may be extracted from the

entire relationship between the parties before examining their overall relationship under the primary

benefit test enunciated in [Laurelbrook], because

those activities are ‘beyond the pale of the contemplated [cosmetology education and training].’” R. 105,

PageID: 3913 (quoting Schumann, 803 F.3d at 1215)

III.

We review the district court’s grant of partial

summary judgment de novo and will affirm only if

“there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of

law.” Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d

805, 811 (6th Cir. 2020) (quoting Fed. R. Civ. P. 56(a)).

31a

The plaintiffs have the burden of showing that no such

dispute exists, even with the evidence presented in

the light most favorable to Douglas J and with all

reasonable inferences drawn in its favor. See Hickle v.

Am. Multi-Cinema, Inc., 927 F.3d 945, 951 (6th Cir.

2019).

The FLSA requires an employer to compensate its

employees for services performed. 29 U.S.C. §§ 206,

207. Not all working relationships are subject to the

FLSA; only “employees” are owed wages for unpaid

labor. Tony & Susan Alamo Found. v. Sec’y of Labor,

471 U.S. 290, 299 (1985) (“An individual may work for

a covered enterprise and nevertheless not be an

‘employee.’”). To determine whether an employment

relationship exists, courts assess the “economic reality” of the relationship. Id. at 301 (citation omitted).

That determination depends on “the circumstances of

the whole activity” and the parties’ respective contributions “to the accomplishment of a common objective.” Rutherford Food Corp. v. McComb, 331 U.S. 722,

727, 730 (1947) (citation omitted).

Schools conducting vocational-training programs

or internships may fall under the FLSA’s sweep if the

school employs its students. See Walling v. Portland

Terminal Co., 330 U.S. 148, 151 (1947). Plaintiffs

alleging FLSA violations in the educational context

must prove that the school was the primary beneficiary of the working relationship. Laurelbrook, 642

F.3d at 529; see Herman v. Palo Grp. Foster Home,

Inc., 183 F.3d 468, 472 (6th Cir. 1999) (“A plaintiff

generally has the burden of proving that his employer

violated the FLSA.”). The primary-beneficiary test

assesses the “totality of the circumstances” within the

school-student relationship. Laurelbrook, 642 F.3d at

32a

524. That said, evidence that the school displaced paid

employees with free student labor or failed to provide

students with educational benefits will support a

FLSA claim. Id. at 529.

Solis v. Laurelbrook is the leading case in this

circuit dealing with employment relationships in the

educational context. In Laurelbrook, the Secretary of

Labor sued a boarding school for Seventh-Day

Adventist high-school students, alleging violations of

the FLSA’s child-labor provisions. Id. at 519–20.

Students spent four hours of each school day in the

classroom and four hours in a vocational-training

program. Id. at 520. The vocational-training program

taught “practical skills” in classes such as Agriculture, Grounds Management, Mechanical Arts, and

Plant Services. Id. at 520. The vocational-training

program also required students to work in the school’s

sanitarium: a 50-bed intermediate-care nursing

home. Id. Students were assigned to the sanitarium’s

kitchen and housekeeping departments; those sixteen

years and older could participate in the sanitarium’s

state-certified nursing assistant program and provide

medical assistance to patients. Id.

We found that both parties benefitted from the

students’ work in the vocational-training program.

The school benefitted from the students’ work in the

“practical skills” classes by selling goods produced by

the students, including flowers, produce, and wooden

pallets. Id. at 530. Students also provided services to

the paying public, caring for patients at the sanitarium and repairing cars for customers as part of a

course on collision repair. Id. (“The proceeds from

these sales go directly to [the school’s] operations.”).

The students’ work also helped the sanitarium satisfy

its state-licensing requirements. Id. Nonetheless, the

33a

benefits to the school were offset by the burdens of

instructing the students, which meant that the school

did not displace compensated workers. Id. at 530–31;

see also id. at 520 (finding that the school would not

operate the sanitarium if the students did not work

there because the sanitarium’s “sole purpose is to

serve as a training vehicle for its students”).

The students accrued several benefits from the

vocational program, including hands-on training that

allowed students to practice skills and compete in the

job market after graduation. Id. Students also

received a “well-rounded education” that valued

“responsibility and the dignity of manual labor.” Id. at

531 (finding that the program benefitted students by

teaching them “a strong work ethic” and “leadership

skills”). Ultimately, we held that no employment

relationship existed because the students were the

primary beneficiaries of the vocational-training

program and were therefore not employees under the

FLSA. Id. at 531.

Both the district court and the majority here erred

in their application of Laurelbrook’s primary-beneficiary test. In Laurelbrook, the Secretary of Labor sued

the school for exploiting child labor. But we did not

analyze each challenged activity—i.e., growing flowers and produce, building wooden pallets, repairing

cars, caring for patients, maintaining the school’s

operations—in isolation from the vocational-training

context. Rather, we evaluated how the working

relationship benefited each party, accounting for the

entirety of the school’s vocational-training program.

The instruction provided in the school’s vocational

classes—i.e., Agriculture, Grounds Management,

Mechanical Arts, and Plant Services—were a crucial

34a

part of our analysis. See id. at 531 (finding that

students benefitted from “courses of study that have

been considered and approved of by the state

accrediting agency”).

The primary-beneficiary test thus requires us to

assess how both parties benefitted from the students’

work at Douglas J’s clinic salons.3 We must examine

the students’ time spent practicing cosmetic services—on customers and in classroom exercises—

under the supervision of licensed instructors. And we

must consider the fact that but for the hours spent at

Douglas J’s clinic salons, the students could not have

qualified for the licensing exam or obtained a

cosmetology license.

That Douglas J benefits from its students’ work is

not prima facie proof that the school is the primary

beneficiary: Laurelbrook instructs us to consider how

the benefits are offset by the burdens of running a

cosmetology school. So, for example, we should

consider the fact that Douglas J is in the education

business, not the beauty-salon business. See Hollins

3 The majority emphasizes that the Laurelbrook Court “did not

consider the unchallenged parts of the program, such as the

parts of the curriculum that included traditional classroom

instruction.” Majority Op. at 12. It is true that Laurelbrook

focuses on the students’ vocational education, rather than the

classroom education. But the Laurelbrook Court also found it

significant that students received a “well-rounded education”

that included “hands-on, practical training . . . in an

environment consistent with [the students’] beliefs.”

Laurelbrook, 642 F.3d at 531. The classroom-based instruction

thus factored into the analysis. Nonetheless, even if we exclude

any formal classroom instruction—i.e., any work not involving

hands-on instruction—all of the students’ work must be

accounted for.

35a

v. Regency Corp., 867 F.3d 830, 836 (7th Cir. 2017).

Douglas J did not allow licensed cosmetologists to

work at the clinic salons; only students provided cosmetic services. See Eberline Dep., R. 60-27, PageID:

2320–21. Moreover, we must determine whether the

students’ work displaced compensated employees at

the clinic salons.4 The economic reality of the parties’

relationship—the very reason for their affiliation—

cannot be appreciated without taking these facts into

account.

Instead of applying Laurelbrook’s totality-of-thecircumstances test, the district court separated the

challenged tasks—cleaning and restocking—from the

rest of Douglas J’s clinic-salon program. This analysis

conflicts with Laurelbrook’s holistic requirements by

considering tasks that a judge or a panel of judges

deems educationally valueless in isolation from the

vocational-training context. It thereby enables judges

to make wholly subjective judgments about whether

certain activities are “‘well beyond the bounds of what

could fairly be expected to be a part of the internship’

or educational program.” See Eberline, 339 F. Supp. at

543 (quoting Schumann, 803 F.3d at 1214–15).5

4 The plaintiffs claim that they proved that the students’ work

displaced paid staff. See Appellee Br. at 9. But no one disputes

that Douglas J employs support staff and a nighttime janitorial

service to maintain the cleanliness of the schools. See, e.g.,

Eberline, 339 F. Supp. 3d at 637. The district court should

therefore determine the extent to which paid workers were

displaced by the students work.

5 In creating this new test for FLSA claims, the district court

relied on dicta from Schumann, 803 F.3d at 1199, a case in which

the Eleventh Circuit clarified the standard for determining

whether an employment relationship exists in the internship

36a

There is no meaningful distinction between the

district court’s approach and the majority’s “segmentation” approach—both analyze the challenged

activities in isolation from the educational context.6

context. In remanding the case, the Schumann Court cautioned

that “the proper resolution of a case may not necessarily be an

all-or-nothing determination” because it could “envision a

scenario where a portion of the student’s efforts constitute a bona

fide internship that primarily benefits the student, but the

employer also takes unfair advantage of the student's need to

complete the internship.” Id. at 1214. The Schumann Court

imagined

an employer who requires an intern to paint the

employer's house in order for the student to complete a

[medical] internship of which the student was

otherwise the primary beneficiary. Under those circumstances, the student would not constitute an “employee” for work performed within the legitimate confines

of the internship but could qualify as an “employee” for

all hours expended in painting the house, a task so far

beyond the pale of the contemplated internship that it

clearly did not serve to further the goals of the

internship.

Id. at 1215. The district court’s application of the Schumann

hypothetical is unpersuasive. In the Schumann hypothetical, the

two relationships—one educational relationship and one employment relationship—are clearly demarcated by both time and

place. Here, the challenged activities cannot be so easily

extracted from the rest of the vocational-school setting because

those activities were part and parcel of all the activities occurring

under the broad sweep of Douglas J’s curriculum. Cf. Majority

Op. at 10–11 (concluding “that the janitorial work took place

within the educational context”).

6 The majority refers to its approach as a “targeted” approach

because it targets specific segments of the work at issue. Majority

Op. 12–13. But even under a so-called targeted approach, the

result is the same: it instructs courts to analyze only the work

37a

But by evaluating only some activities conducted at

the clinic salons, the majority fails to consider the

entire working relationship between the parties and

therefore contravenes our binding precedent in

Laurelbrook. The majority says that in Laurelbrook,

“we considered whether the students were primary

beneficiaries of the activities for which compensation

was in dispute.” Majority Op. at 12 (emphasis added).

That is not true. Laurelbrook does not isolate the

challenged activities (i.e., the students’ provision of

goods and services to the paying public) from the rest

of the vocational program (i.e., the vocational classes

and practical instruction). Laurelbrook considers

whether the students were primary beneficiaries of

the school’s entire vocational program—not whether

the students were primary beneficiaries when they

engaged in certain activities.

The majority opinion creates a circuit split; the

Second, Seventh, and Ninth Circuits have held that

cosmetology students who work at for-profit cosmetology schools are not employees under the FLSA. See

Velarde v. GW GJ, Inc., 914 F.3d 779 (2d Cir. 2019);

Benjamin v. B&H Educ., Inc., 877 F.3d 1139 (9th Cir.

2017); Hollins, 867 F.3d at 830. And contrary to the

majority’s assertion, see Majority Op. at 13–14, no

other federal court has applied its novel “segmentation” approach to determine whether the FLSA

applies in the cosmetology-school context.7

activities in its crosshairs without regard to the target’s

surroundings.

7 District courts in the Third, Fourth, and Tenth Circuits have

also eschewed a “segmentation” approach, considering the

38a

The Second and Ninth Circuits considered seven

factors (the Glatt factors) to hold that cosmetology

schools did not owe their students wages for hours

worked at their clinic salons. See Velarde, 914 at 785

n.7 (citing Glatt v. Fox Searchlight Pictures, Inc., 811

F.3d 528, 536–37 (2d Cir. 2016)); Benjamin, 877 F.3d

at 1146–47.8 The Glatt factors evaluate the entirety of

the working relationship—not mere segments of it—

between a cosmetology school and its students, assessing (1) the students’ expectation of compensation,

(2) the school’s provision of clinical and hands-on

training, (3) the students’ receipt of academic credit,

(4) the extent to which the work accommodates the

students’ academic commitments by corresponding to

an academic calendar, (5) the duration of the program,

(6) the displacement of paid workers, and (7) the

students’ expectation of employment with the school

after the program. Velarde, 914 F.3d at 785 n.7;

Benjamin, 877 F.3d at 1146–47; see also Hollins v.

Regency Corp., 144 F. Supp. 3d 990, 998–1007 (N.D.

Ill. 2015), aff’d, 867 F.3d 830 (7th Cir. 2017) (applying

the Glatt factors to hold that cosmetology students

were the primary beneficiaries).

totality of the circumstances at the schools’ clinic salons. See

Jochim v. Jean Madeline Educ. Ctr. Of Cosmetology, Inc., 98 F.

Supp.3d 750, 757–60 (E.D. Penn. 2015); Ortega v. Denver Inst.

LLC, No. 14-cv-01351, 2015 WL 4576976, *13–17 (D. Colo. July

30, 2015); Atkins v. Capri Training Ctr., Inc., No. 2:13-cv-06820,

2014 WL 4930906, at *8–10 (D.N.J. Oct. 1, 2014); Lane v.

Carolina Beauty Sys., Inc., No. 6:90CV00108, 1992 WL 228868,

*3–4 (M.D.N.C. July 2, 1992).

8 In Hollins, 867 F.3d at 837, the Seventh Circuit affirmed the

district court’s use of the Glatt factors but declined to “make[] a

one-size-fits-all decision about programs that include practical

training, or internships, or tasks that appear to go beyond the

boundaries of a program.”

39a

In Velarde and Benjamin, the Second and Ninth

Circuits applied the Glatt factors to find that cosmetology students were not employees under the FLSA.

In both cases, the courts found that the students

primarily benefitted from the vocational training

because the students willfully enrolled in the programs knowing they would receive neither compensation for their services nor employment with the school.

Moreover, the schools’ curricula required students to

work no more than the number of hours mandated by

the state-licensing laws. Finally, the schools provided

hands-on training related to classroom instruction,

gave students opportunities to perform services under

the supervision of instructors, and did not displace

paid employees. See Velarde, 914 F.3d at 786–88;

Benjamin, 877 F.3d at 1139. The Second and Ninth

Circuits thus evaluated cosmetology students’ work in

the context of the schools’ entire clinic-salon programs, measuring whether students served primarily

as employees of the schools’ training programs or

acted primarily as students. Velarde, 914 F.3d at 785.

Nor does the Department of Labor (DOL) interpret the FLSA to cover “segments” of work conducted

by students in vocational-training programs or

internships. Rather, the DOL instructs investigators

to apply the seven Glatt factors to determine whether

students working at for-profit businesses are employees under the FLSA. U.S. Dep’t of Labor, Wage &

Hour Div., Field Assistance Bull. No. 2018-2,

Determining Whether Interns at For-Profit Employers

Are Employees Under the FLSA (2018). The DOL

recognizes that the “[student]-employer relationship

should not be analyzed in the same manner as the

standard employer-employee relationship because the

[student] enters into the relationship with the expectation of receiving educational or vocational benefits

40a

that are not necessarily expected with all forms of

employment.” Id. (citing Glatt, 811 F.3d at 536).

The majority opinion ignores this distinction,

thereby confusing the issue of whether a student is an

employee with the issue of whether an employee is

owed compensation. See Majority Op. at 13, 15–16

(citing cases concerning FLSA claims brought by

employees). The latter question—the compensabletime question—is not focused on the nature of the

relationship between the parties; the employeremployee relationship is a given. Rather, the question

is narrowly focused on whether the employee is working during a particular time period. See, e.g., Hill v.

United States, 751 F.2d 810, 812 (6th Cir. 1984)

(holding that an employee was not working during a

lunch period because the employee “had no substantial duties . . . that would inhibit his ability

adequately and comfortably to pursue interests of a

private nature”). The primary-beneficiary analysis

makes a broader inquiry, focusing on the benefits

accrued to each party by virtue of the educational and

working relationship.

The majority eradicates any distinction between

these distinct legal issues. The “segmentation”

approach sidesteps the primary-beneficiary analysis

by ignoring the context of the relationship. This

approach is inconsistent with the purposes of FLSA,

which “was obviously not intended to stamp all

persons as employees who, without any express or

implied compensation agreement, might work for

their own advantage on the premises of another.” See

Portland Terminal Co., 330 U.S. at 151.

41a

Finally, the majority’s analysis is premised on the

assumption that restocking shelves and cleaning

salons are activities that confer little (if any) educational benefit to aspiring cosmetologists. See Majority

Op. 6; id. at 5 (finding that the salon aesthetics

activities are “less related to the school’s purpose” of

training students for a career in cosmetology); id. at

11 (“[T]he janitorial tasks assigned to the plaintiffs

were not part of Douglas J’s written curriculum, not

required by the state regulations governing cosmetology education, and not supervised by instructors.”);

id. at 15–16 (explaining that the challenged activities

fail to provide a “curriculum-based benefit” and are

“unrelated to the educational purpose of the relationship”). Having made this subjective judgment, the

majority holds that that the activities “[did] not actually provide a benefit to students that exceed[ed] the

benefit of free labor received by the school.” Id. at 15.9

But the plaintiffs failed to provide sufficient

evidence to support the majority’s assumption. Start

9 At the same time, the majority faulted the district court for

failing to recognize that the challenged activities “spring from

the students’ [educational] relationship with Douglas J.”

Majority Op. at 11. In rejecting the district court’s analysis, the

majority concedes that “[t]he students were in the salons as part

of the educational program, were assigned the tasks at issue by

the same instructors who oversaw their practical training,

received academic credit for the time spent on the tasks, and

were told that they would be sent home—potentially delaying

their graduation from the school—if they failed to complete the

assigned tasks.” Id. But if it is true that the challenged activities

are “unrelated to the educational purpose of the program,” see id.

at 14, why would we apply the primary-beneficiary analysis to

these activities?

42a

with the curriculum requirements.10 Douglas J’s

written curriculum includes classroom and practical

instruction on cleanliness, infection control, and

maintaining a professional salon image. See R. 60-41;

R. 60-37 (giving instructors examples of salonaesthetics activities, including cleaning, laundry, and

restocking). One of Douglas J’s owners testified that

the school requires students to clean and do laundry

because the LARA requires cosmetologists to keep

their businesses “clean, safe, and sanitary at all

times,” Mich. Admin. Code R. 338.2171, .2173, and

cosmetology schools to teach sanitation, patron protection, personal hygiene, and salon management, id.

§ 338.2161; see Weaver Dep., R. 60-34, PageID: 2571.

That the LARA prescribes cosmetology-specific

measures to prevent infections and contagious disease

in salons, requires schools to provide instruction on

sanitation and salon management, and tests students

on these topics, speaks to the educational value of the

challenged activities. There is therefore a reasonable

connection between Douglas J’s cleaning and restocking requirements and the LARA’s curriculum requirements regarding sanitation, patron protection, and

salon management. The plaintiffs failed to rebut that

connection with evidence that the challenged

activities are somehow unrelated to the educational

purpose of the relationship. See, e.g., Velarde, 914

F.3d at 787 (finding that “clerical and janitorial work”

allowed students to “gain[] familiarity with an industry by day to day professional experience”) (citation

10 Although the majority states that Douglas J asserts that the

activities “may” be included in the curriculum, see Majority Op.

at 6 n.1 (emphasis added), Douglas J explicitly asserts that the

“general salon aesthetics” are a required component of its clinicsalon program, see Appellant Br. at 14.

43a

omitted); Hollins, 867 F.3d at 836–37 (explaining that

schools reasonably regarded activities like cleaning

and restocking shelves as “part of the job of the

cosmetologist,” especially since “Salon Safety and

Sanitation” is a “heavily tested subject area on the

[state] licensing exam”).

IV.

For the foregoing reasons, I concur in the judgment to reverse and remand for the district court to

correctly apply Laurelbrook’s primary-beneficiary

test. But I respectfully dissent from the majority opinion’s rendition of that test because it directly conflicts

with our precedent and creates an unjustifiable split

from our sister circuits.

44a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 19-1781

JOY EBERLINE;

POXSON;

ZIMMERMANN,

TRACY

CINDY

Plaintiffs - Appellees,

FILED

Dec 17, 2020

DOUGLAS J. HOLDINGS,

INC.; DOUGLAS J. AIC, INC.; DEBORAH S.

DOUGLAS J. EXCHANGE, HUNT, Clerk

INC.;

DOUGLAS

INSTITUTE, INC.; SCOTT A.

WEAVER; TJ WEAVER,

Defendants - Appellants.

Before: COLE, Chief Judge; BATCHELDER and

STRANCH, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is

ORDERED that the district court’s partial grant of

summary judgment in favor of the plaintiffs is

REVERSED and REMANDED for further proceedings consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

45a

Appendix C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Joy Eberline, et al.,

Plaintiffs,

Case No.

14-cv-10887

Douglas J. Holdings, Inc., et al.,

Judith E. Levy

United States

District Judge

Defendants.

OPINION AND ORDER GRANTING

PLAINTIFFS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT [60] AND GRANTING

IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT [56]

Three former students at defendants’ cosmetology

schools brought this putative class and collective

action under the Fair Labor Standards Act (“FLSA”)

and state law. They allege that when they clean, do

laundry, and restock products during the clinical

training portion of defendants’ curriculum, they are

employees entitled to compensation. The key issues in

this case are whether the plaintiff students or the

defendant schools are the primary beneficiary of their

relationship with one another, and whether certain

tasks the students are required to complete—such as

cleaning the clinic, classrooms, and breakroom; doing

the laundry; and restocking the products—are so far

beyond the scope of their education that the tasks

cannot fairly be considered a part of the training.

46a

The Court is now presented with cross-motions for

summary judgment. Plaintiffs bring a motion for

partial summary judgment, seeking a determination

that they are employees when they perform the

aforementioned tasks. Defendants bring a motion for

summary judgment, arguing that all of the students’

claims must fail because they are students and not

employees within the meaning of the FLSA.

For the reasons set forth below, plaintiffs’ motion

for partial summary judgment is granted, and defendants’ motion for summary judgment is denied in

part. In light of the fact that plaintiffs clarified during

oral argument that they are only seeking employee

status for time spent on cleaning, doing laundry, and

restocking products, there is no dispute on the

remainder of the time spent in the clinic. Therefore,

defendant’s motion for summary judgment as to the

remaining time and the other portions of the parties’

relationship is granted in part.

Background

Plaintiffs are three former cosmetology students

at defendants’ schools. Joy Eberline attended defendants’ Ann Arbor school and graduated in 2012. Cindy

Zimmermann attended defendants’ Grand Rapids

institute part-time and also graduated in 2012. Tracy

Poxson graduated from defendants’ East Lansing

school in 2013. Each passed the state cosmetology

licensing exam after graduating.

Defendants are four companies owned and operated by individual defendants Scott Weaver, T.J.

Weaver, and Kristi Bernhardt. Scott and T.J. Weaver

are the only directors of the defendant companies.

Scott Weaver is the defendant with primary decisionmaking authority over the companies. (Dkt. 60-4 at

47a

14-16.) He also serves on the Michigan Board of

Cosmetology. (Dkt. 60-4 at 8.) Kristi Berhnhardt was

the Chief Financial Officer of the corporate defendants during the time period at issue in this litigation.

The four corporate defendants are Douglas J.

Institute, Douglas J. AIC, Douglas J. Exchange, and

Douglas J. Holdings, Inc. Douglas J. Institute, Inc.

operates cosmetology schools in Ann Arbor, East

Lansing, Grand Rapids, and Royal Oak, Michigan, as

well as Knoxville, Tennessee. (Dkt. 60-3 at 2.) Douglas

J. AIC, Inc. operates an additional cosmetology school

in Chicago, Illinois. (Dkt. 60-4 at 14.) Douglas J.

Exchange, Inc. operates salons in Ann Arbor and

Rochester Hills, Michigan. (Id. at 31.) Douglas J.

Holdings, Inc. owns each of the other defendant companies. (Dkt. 60-5.) Defendants Scott and T.J. Weaver

each own half of Douglas J. Holdings, Inc. (Dkt. 60-6.)

Defendants’ businesses are for-profit companies

from which the Weaver defendants earn a considerable amount of money. For example, Douglas J.

Institute earned a net profit of over $1.5 million each

year between 2010 and 2014. (Dkt. 69-1.) The revenue

driving this profit comes from tuition, kit sales,1

beauty product sales, and salon services sales to the

public. (Dkt. 69-2 at 2; Dkt. 69-3 at 2.) Students are

charged $17,850 for the full-time program and

$17,000 for the part-time program, inclusive of the kit

fee. (Dkt. 60-23; Dkt. 60-26.) The companies are set up

such that the net profit flowed through Douglas J.

Kit sales refer to the schools’ requirement that students

purchase certain equipment and beauty products from the school

as part of their training. Students are charged $1,700 for the kit.

(Dkt. 60-23 at 2.)

48a

Holdings to Scott and T.J. Weaver as income. (Dkt. 6015 at 6.)

At the time, defendants employed various types of

workers as part of their business model. One type of

worker defendants employed was support staff. The

support staff were broken into two positions:

aesthetics and guest services. Defendants employed

aesthetics personnel “to consistently ensure the Institute is kept clean and materials including towels and

products are always available.” (Dkt. 61 at 2.) These

employees were primarily responsible for “keeping the

place clean throughout the course of the day, [and]

helping keep up with things such as laundry, any

dishes, [and] cleaning.” (Dkt. 60-4 at 19.) The printed

job description for aesthetics personnel informed

potential new hires that the role required “sweeping,

dusting, polishing, window cleaning[,] shelf cleaning[,] . . . load[ing] and unload[ing] [the] dishwasher[,]

. . . ensur[ing] [the] back-bar and stock areas are clean

and tidy[,] [and] other general cleaning tasks as

assigned.” (Dkt. 61.)

The other support staff role in defendants’ operations was guest services personnel. The guest services

team primarily staffed the front desk to greet and

assist clients when they came in the door. (Dkt. 60-34

at 5.) They were also responsible for keeping the waiting area “clean and tidy.” (Dkt. 60-4 at 23.) The guest

services training manual instructed staffers to “come

out from behind the desk and hold doors, dust shelves,

vacuum rugs, [and] clean windows” when they have

down time. (Dkt. 60-47 at 4.) They were also expected

to perform hourly “aesthetic checks,” in which they

would tend to guests and “vacuum all rugs (including

elevator) and clean the glass at all sets of doors.” (Id.

at 5.)

49a

The work of the support staff was bolstered by a

nighttime janitorial service. Defendants hired

Daenzer Building Services to clean the facilities six

nights each week. (Dkt. 60-34 at 19.)

In addition to support staff, defendants employed

licensed cosmetology instructors. (Dkt. 60-4 at 19.)

These individuals had both a state-issued cosmetology

license and a state-issued cosmetology instructor’s

license (Dkt. 60-34 at 8), and they oversaw the

cosmetology students’ time in the clinic and in the

classroom. (Id. at 9.) Each time a student saw a client

in the clinic, the appointment would begin with a

consultation between the student, the instructor, and

the client to ensure the student provided the client

with all of the services the client sought. (Id.) When

the student finished, the instructor would review the

student’s performance to ensure it was adequate. (Id.)

The instructors also oversaw the work of student

instructors. Student instructors are licensed cosmetologists who have returned to school to obtain an

additional license to teach cosmetology. (Id. at 11.)

They were not paid for their time on the floor2 and

were expected to work hand-in-hand with the instructors to oversee the cosmetology students in the clinic.

(Id. at 12.) Occasionally, a student instructor supervised the cosmetology students in lieu of a licensed

instructor. (Dkt. 60-27 at 42.)

The instructors and student instructors supervised the cosmetology students’ time in the clinic

according to defendants’ curriculum, which was based

on Michigan state requirements for licensing cosmetologists. The state requires students to spend 1,500

hours in cosmetology school, in both a clinical and

2 None of the plaintiffs are student instructors.

50a

classroom setting, to become eligible to take a stateadministered licensing exam. (Dkt. 60-20.) The

student must then pass that exam to obtain a license

to practice cosmetology. (Id.) As an accredited and

licensed cosmetology school (Dkt. 60-18 at 6), defendants were obligated by law to conform their curriculum to the subject matter tested on the state licensing

exam. Mich. Comp. Laws § 339.1205(2)(a).

The state-mandated curriculum requires cosmetology students to spend much of their time practicing

their skills on clients under instructors’ supervision.

(Dkt. 60-20.) Students worked in the clinic throughout

their enrollment, and they were required to spend

certain amounts of time on different skills and treatments. For example, the state curriculum required

eighty practical hours of facials, fifty-five practical

hours of manicures, 400 practical hours of hairdressing, 170 practical hours of hair coloring, and 180

practical hours of chemical hair restructuring, among

other categories of skills. (Id.) It also mandated forty

clinical hours on “Sanitation/Patron Protection, Laws

& Rules, Personal Hygiene, Salon Management, [and]

Mechanical & Electrical Equipment Safety.” (Id.)

Neither the state-mandated clinical curriculum nor

defendants’ application of that curriculum include any

time in the clinic for learning the salon business. (Id.