A woman who participated in a county’s autopsy forensic photography program was not entitled to wages because she was an unpaid intern rather than an employee, a federal appeals court decided recently.
In April of 2019, Brandi McKay began an internship with Miami-Dade County’s Medical Examiner’s Forensic Imaging Preceptorship Program.
When she started, she understood that it was free; that it lasted six months; that it required weekend hours; and perhaps most importantly, that it was unpaid.
For the first two weeks, McKay completed workbook assignments. In weeks three and four, she was trained in the morgue and shadowed photographers who took forensic autopsy photographs. The four weeks after that involved taking autopsy photographs with another intern. During those four weeks, she was not always supervised.
Beginning in week nine, McKay and another intern alternated between working weeks in the morgue. When she was on, she took autopsy photographs. By that time, she was getting only minimal supervision, although she sometimes needed training on new equipment.
On her off weeks, she completed assignments in the program office.
McKay stopped participating in the program near the start of September of 2019, about a month before her participation was initially scheduled to end.
Suit Says She Was Employee, Not Intern
Then she sued the county, alleging that she was entitled to minimum wage and overtime payments under the federal Fair Labor Standards Act (FLSA).
The county insisted that McKay was never an employee so was owed nothing. A lower court agreed, finding that she was an intern who was not entitled to the payment of any wages. McKay then sought further review from the Eleventh Circuit Court of Appeals.
The appeals court explained that to win, McKay had to show she was an “employee” within the meaning of the FLSA. But the statute does almost nothing to help make this determination, it noted, pointing to its “frustratingly circular” definition of the term as “an individual employed by an employer.”
The county said that even if the term “employee” was to be construed broadly, an exception was clearly applicable. Applicable caselaw has established an internship exception that McKay clearly fits under, it insisted.
That exception has its origins in a 1947 Supreme Court ruling, it explained, and has since been refined and applied by the Eleventh Circuit Court of Appeals.
Here’s the Test
Under it, the key inquiry is whether the intern is the primary beneficiary of the relationship between the parties. If that is true, the intern is not entitled to payment. And if the provider of the internship is the primary beneficiary, the intern can fairly be deemed an employee who must be paid.
So how exactly is the determination to be made?
The Eleventh Circuit lays out a seven-factor test that essentially asks these seven questions:
- Did the intern and employer clearly understand that there was or was not an expectation of payment?
- Does the internship provide training similar to that given in an educational environment?
- Is the internship clearly tied to a formal education program?
- Does the internship accommodate academic commitments by corresponding to an academic schedule?
- Does the internship last only as long as the intern receives beneficial learning?
- Does the intern’s work complement the work of paid employees or displace it?
- Do the intern and employer agree that the intern is not entitled to a paid job when the internship ends?
Here, the appeals court said, the scale tipped in favor of a determination that McKay was an intern.
She admitted that there was no promise or expectation of payment, and the internship provided her with valuable training that was similar to what she would have received in a formal educational program. The clear reality, the appeals court said, was that the free internship allowed McKay to develop skills in a short period of time, to her significant benefit.
She clearly understood that she would not be paid and that there was no job waiting for her when the internship ended, the appeals court added.
McKay was an intern, not an employee, and so was not entitled to wages under the FLSA.
Many other courts have used the primary beneficiary test relied upon by the Eleventh Circuit here. Employers who use internship programs need to be familiar with this test, and look to the seven applicable factors, to avoid payment of wages in these situations.
McKay v. Miami-Dade County, No. 20-14044, 2022 WL 2073589 (11th Cir. 6/9/22).
