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Eleventh Circuit Affirms Trainee Participant Not an Intern

Brandi McKay attended Miami-Dade County's Forensic Imaging Preceptorship Program ("Program"). She chose to enroll in the Program instead of attending college. The free Program lasted six months, was unpaid, and required weekend work. She spent the first two weeks in the Program completing workbook assignments; two weeks shadowing the County's staff photographers as they took forensic autopsy photographs; several weeks taking photos in the morgue with other interns. For the remainder of her time in the Program, McKay worked in the morgue, taking autopsy photographs with little supervision. She left the Program after about five months. McKay then claimed she was an employee and sued the County for wage and overtime payments under the Fair Labor and Standards Act ("FLSA").

The federal district court determined McKay was an intern, not an employee. The Eleventh Circuit Court of Appeals came to the same conclusion. In reaching its decision, the appellate court first considered whether McKay was a “volunteer” under the FLSA. While the FLSA does not define the meaning of a "volunteer," the Department of Labor's definition states it is a person "who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation." The parties stipulated that McKay was not motivated by any altruistic reasons. Thus, the Court said she could not be a volunteer.

The circuit court next looked at the internship exception to the FLSA. Under this exception, an intern is not considered employed if the employee is the "primary beneficiary of the relationship." There are seven non-exhaustive factors to be considered. (Click here for the full text of the DOL’s seven factors.) The appellate court found the balance of factors primarily weighed in the County's favor. Agreeing with the district court's conclusion, the Eleventh Circuit found McKay "learned forensic photography from a highly regarded program for free," allowing her to gain considerable experience. The Program imparted a "significant benefit" to her. McKay also understood before entering the Program that she would not be paid and would not be entitled to a job after the internship. As an intern, McKay was not entitled to wages or overtime.