business a beauty salon under the guise of the beauty school patrick velarde was a student at the defendants and beauty school aspired over that education which lasted western district court dismissed or did that come a surprise to him i mean it looked to me like from the contract and the enrollment that that's exactly what he was to have expected in fact he was trying to go for his state certificate in the state requires a thousand hours something like that to state that correct your honor he wasn't surprised clearly the documents do say that he will have to perform   with twin goals in mind to protect workers and also to protect businesses which comply with the f l a say and therefore it was promulgated to prevent predatory behavior  behavior that uses unpaid labor to keep it to compete with other businesses in the beauty school going to be in that position yes right so you're saying there should be no they're simply if you're running a cosmic college school you cannot have your students work on people walking off the street well there are always going to be able to undercut people who are using licensed people to do this work  your honor yes however and this is our problem with the application of the glatt test to this case indeed the beauty school can create  salon experience practical experience without competing in the marketplace all they have to do is to not charge the people who come in here for services in fact we allege in the complaint that the defendants had a rule they prevented students from bringing their friends their family or working on each other for free if this alone had been open to the public for free then you then you would be asserting this claim then i wouldn't be asserting this claim then you would really be undercutting the competitors your honor it seems to me and i think that's what the prisoner cases have shown for example the van sky case from the seventh circuit that the provision that in certain circumstances the provision of labor is not competition in the marketplace for example of prisoners work inside the prison that is not competition of the marketplace however when a prisoner works outside the prison it is competition with the marketplace and therefore the prisoner has to be paid carter versus duchess community college concerned a prisoner who taught a duchess community college and he filed a lawsuit to get paid and this circuit found that because the prisoner engage or the college used prisoner labor to engage it to compete in the marketplace the prisoner had to be paid same thing for example with the  where children were used by a religious institution to compete with other contractors the religious institution was building houses using child labor and the fourth circuit stated that using child labor to compete in the marketplace was improper that children should be considered employees and this is our case here you just clarify one thing please or is it your position that mr velarde should be compensated for all the time he spent on the academies on floor just for the periods when he was doing kind of janitorial services the low educational value time no your honor our position is that you should be compensated for the entire time because his he was there on call at the defendant's back and call he was there waiting for people who came in and incidentally if it were truly a educational program that focused on the students experience mr velarde would not be doing what the person who came of the street wanted he would be doing something that he needed to learn but as we allege the already and the other students simply had to do whatever the person who came in asked them to do for example if a person wanted to hack out there to get a haircut but but he wanted to learn braiding he couldn't do it would you say that the school violated its contractual obligations to him to provide adequate training to it so he could obtain a certificate that would be part of it because that is the context for the relationship right the context of the relationship is the educational context and he paid her to wish for it and our problem with this arrangement is that the school then turned around and used the tuition to subsidize the salon and compete  marketplace now and this is our problem with the hollands case for example cited by the defendants and i thing i had to address that's what what the hones case says basically or it seems to imply that there should be  we urge the scored to recognize that the so long was run with a view to using unpaid labor and to compete in the marketplace in violation of the principles of the f l employment based internship this is a different case this is a case of vocational school using student unpaid student labor to obtain to essentially run a separate business and argue to the district and what about the quantum error claim i gather you're not pursuing that on appeal for so we don't have to be concerned with it i saw the light and i can see the point ok from that's great thank you very much you'll hear from opposing counsel turn is the primary beneficiary of that relationship such that for the fs up for f l s a the intern would be an employee since that date with a new number of years ago that black test has been adopted nationwide so much so the two months ago in january two thousand and eighteen the u s department of labor issued a fact sheet that listed out this particular issue when you look at internships this is the test that should be applied this court's glatt test particular context of cosmetology school and determined that the student was not an employee entitled to a minimum wage benefits those more recent cases are also called upon to cosmetology school abandon glatt and follow the immediate advantage or economic value test that mr business claims derives from the one nine hundred forty seven supreme court case portland terminal that requests should be rejected for student internship is very different from the seven or eight days of railroading training that was at issue in portland terminal the glatt test is much more appropriate for analyzing the to tell of the of circumstances in this economic setting finally and let me with you on that glass is better than portland terminal it's not perfect for analyzing something like a cosmetology school i would agree through the one in fact this is way better than that it's much easier case for the court than i would think than glass or a typical internship will give the internships i'm glad you're talking about kids who are either not in school have completed school and they're going in for a film internship here there is no dispute this is a school that in the midst of a large he applied for school paid money and he got what he paid for he knew exactly was going into and he was being taught the entire time this is a much stronger case for determination that summary judgment cases and they're the point of had the full opportunity to develop all the same claims get all the proof let's assume that everything he said in the complaint true just when it's let's assume that every allegation he has has merit and he's able to show it to a fare thee well through discovery even so it does not a viable claim make and when that's the case your argument suggests that just because just because someone else was unable to a duce proof doesn't mean that this plaintiff would be unable to a deuce proof i would have thought you'd be arguing that the enrollment contract in the catalog or whatever the additional material was which were incorporated by reference into the plane is sufficient to decide the  ery to decide the motion yes i appreciate your suggestion there just cranny and that's exactly right i would agree with you we said then the papers that the complaint incorporates them or makes reference to them we've laid them out for the that everybody knew you know in the seven factors test what is expected of the people and just proponent raised the question in that earlier everybody knew what they were getting here the point of know that he was going to be doing this training it's all laid out there it is and discovery would be appropriate here because the there is a pro competitive aspect to the fair labor standards act ensuring that people that businesses don't compete with each other on unfair terms and therefore he ought to be able to know how much money your client it's making in this education otherwise educational or some educational context your honor i do with all due respect i don't think if they obtained any information on that it would change the analysis here and i think the court if you this case in favor of philosophically it sounds to me like the sort of cottage industry right now is bringing these cases in as much ology school but presumably if this claim survived that wouldn't be the end up to me what would this do to a nursing student or a medical student or any other types of students that are deployed as free labor to get training exactly right and this is the sort of thing that there are other avenues if there's something wrong with the school doing something and probably the other avenues to challenge it other than to say let's pay all the students there are different types of lawsuits that can be there different state enforcement thing and for some actions the schools all of licenses and that's point out in some of the cases you're on i want to come back to just going to the the twelve c standard here this court in the sandler case just a couple of months ago and that's mentioned in my letter of yesterday the court applied the plaque test and granted  i should say a decision that dismissed the claimant twelve c motion under go at same exact situation so it's this would be the first time this court has been would be affirming but decision like let me go to the point of  on the door he's the owner of the shop if there's anyone who's intitled not to have to do janitorial work its veto ok and yet every few customers he walks the corner the room grabs a wooden handle brush and pushes the hair around our seat and cleans up after himself it's part of the job when bring back the record one forty nine the record in the bottom right hand corner talks about what mr vadi was tested on when he did get his license thanks to our school and  eleven the bottom right hand corner says they're testing does remove hair clippings from skin cape and work area for surrounding work area is wept it's part of the job ok and so you're going to have it's more than that you're saying it's part of the licensing procedure exactly as part of the testing if you want to become a good cosmetologist you have to learn how to do that and source school provides training that also this court in that same sandler decision i mentioned the plaintiff was complaining just talk about different schools this was a person is getting a degree in social work and she went to a nursing home and she complained that she had to perform secretarial tasks and grunt work such as filing typing photocopy fetching and wheeling patients and stuff and this court said ok that's part of what it is you're going to have some come every job has its own grunt work even being a lawyer and you need to learn to be trained how to do that and understand yes the number five factor in the glad test about you know in the number of hours are you asked to work more here the training required by new york state will see a thousand hours ok suppose our cosmetology school says you got to school for three thousand hours yet we have three thousand hours of free work out of you in our help training for a license that would be inappropriate ok that would be going to be on the riverboat pilot case bailie if you look at thirteen zero seven he was getting training for the boat  and he didn't get the training he needed from the course he had to go outside he said i got to get trained as a riverboat operator i got to go someplace else ok we've provided all the training he needed ok versus collier concerned nursing school students shulman remount of the case back to the district court and we simply there was a huge judgment in favor of plaintiffs nursing students under the glass test so that's one secondly marshall versus baptist hospital radiology students in the marshall also students were found to be employees the point is not the employment employer based internship the point is when you take the vocational program and to compete in the marketplace then your students become employees because they  is is to provide the practical experience without charging the public that's all they have to do they have to rely on tuition alone or yes they rely on the tuition alone and that's the beauty of their business the mission covers the educational program and subsidizes their beauty salon business now they can easily resolve this issue by offering free services to the public because that's not competition in the marketplace or they can allow students and we allege that the defendants did not that to allow students to bring their friends family so that they can practice on these people without those people having to pay