Massage therapy students were not employees under the FLSA.

Nesbitt, a former massage therapy student at a for-profit vocational school, sued claiming that she and fellow students were employees under the Fair Labor Standards Act (FLSA), and thus entitled to be paid minimum wage. The trial court granted summary judgment for the school; the 10th Circuit affirmed. Nesbitt v. FCNH (10th Cir 11/09/2018) [PDF]

Students typically performed five massages per day on members of the public, who paid discounted rates for the massages. Nesbitt claimed that the school profited by using the students as free labor. The court applied the six-part test adopted in Reich v. Parker Fire Protection District, 992 F.2d 1023 (10th Cir. 1993).

Nesbitt focused on two factors:

(1) She claimed that the observation and supervision of students was inadequate, but the court pointed out that the "close supervision" factor is meant to distinguish between regular employees and trainees. At no time did the students function as regular employees; they were students learning a trade on vocational school premises.

(2) She also claimed that the school – rather than the students – was the primary beneficiary of the arrangement. The court's answer was that Nesbitt needed to graduate from an accredited massage therapy school in order to acquire a state license, and the school's 100-hour minimum clinical requirement clearly provided her a material benefit. The court also said, "This is true regardless of the profit, if any, that [the school] may have made from the students' unpaid work."