17-330

Velarde v. GW GJ, Inc., et al.



# United States Court of Appeals

FOR THE SECOND CIRCUIT

______________

August Term, 2017

(Argued: March 8, 2018 Decided: February 5, 2019)

Docket No. 17

‐ 330

______________

P ATRICK V ELARDE

, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY

SITUATED

,

Plaintiff

‐ Appellant

,

–v.–

GW GJ, I NC

. D / B / A T HE S ALON P ROFESSIONAL A CADEMY OF B UFFALO

,

M ARGARET G RENAUER

, AND P AUL G RENAUER

,

Defendants

‐ Appellees.

______________

B e f o r e :

C ABRANES AND C ARNEY

, Circuit Judges

, and C APRONI

, District Judge

. *

______________

Plaintiff

‐ appellant Patrick Velarde sued The Salon Professional Academy of

Buffalo and its owners, Margaret Grenauer and Paul Grenauer, (collectively, “the

Academy”) in the United States District Court for the Western District of New York

* Judge Valerie E. Caproni, of the United States District Court for the Southern District of New

York, sitting by designation.2 (Skretny, J .) for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et

seq

. (“FLSA”), and Articles 6 and 19 of the New York labor law, N.Y. Lab. Law §§ 190,

650 et seq. Velarde alleges that, as a part of his vocational training at the Academy for

becoming a licensed beautician, he was required to perform cosmetology services

without compensation in the Academy’s student salon. He argues that the requirement

violated FLSA and New York labor law. The District Court granted judgment on the

pleadings to the Academy, reasoning under the test that we established in Glatt v. Fox

Searchlight Pictures, Inc.

, 811 F.3d 528, 536

‐ 537 (2d Cir. 2015), that Velarde was the

“primary beneficiary” of his relationship with the Academy and therefore not an

“employee” of the Academy for the purposes of both FLSA and New York labor law.

On de novo review, we agree with the District Court’s analysis and AFFIRM its award

of judgment to the Academy.

AFFIRMED.

______________

R OBERT W ISNIEWSKI

, E SQ

., New York, NY, for Plaintiff

‐ Appellant

.

J AMES W. G RABLE

, J R

. (Terrence M. Connors on the brief ),

Connors LLP, Buffalo, NY, for Defendants

‐ Appellants

.

______________

S USAN L. C ARNEY

, Circuit Judge :

In Glatt v. Fox Searchlight Pictures, Inc.

, 811 F.3d 528 (2d Cir. 2015), we addressed

the application of certain federal and state employment laws to activities performed in a

commercial setting by temporary “interns.” We applied a “primary beneficiary” test: if,

under certain enumerated circumstances, the intern is the “primary beneficiary” of the

relationship, then the host entity is not the intern’s employer and has no legal obligation

to pay compensation under those laws; if, on the other hand, the host entity is the

“primary beneficiary” of the relationship, then the entity is an employer and federal

and state employment laws—in particular, the Fair Labor Standards Employment Act,3 29 U.S.C. §§ 201 et seq. (“FLSA”), and Articles 6 and 19 of the New York Labor Law

§§ 190, 650 et seq. (“NYLL”)—impose compensation obligations.

In the case at bar, we consider the applicability of this test to individuals enrolled

in a for

‐ profit vocational academy who are preparing to take a state licensure

examination and who must first fulfill state minimum training requirements. These

individuals fulfill those requirements by working under Academy supervision for a

defined number of hours, without pay. We determine that the Glatt test governs in the

for

‐ profit vocational training context, and we further conclude that here, the plaintiff,

former student of the Academy was the primary beneficiary of the relationship, thus

excusing the latter from potential compensation obligations under FLSA or NYLL

related to plaintiff’s limited work there as a trainee.

BACKGROUND 1

On April 18, 2011, desiring to become a cosmetologist in New York state, 2 Patrick

Velarde enrolled in the Academy, a for

‐ profit cosmetology training school operated by

1 We review de novo a district court’s decision under Federal Rule of Civil Procedure 12(c) to

grant a defendant’s motion for judgment on the pleadings. In doing so, we accept all factual

allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. L

‐

7 Designs, Inc. v. Old Navy, LLC

, 647 F.3d 419, 429 (2d Cir. 2011). In addition to the facts alleged

in the complaint, we consider the defendants’ answer, any written documents attached to the

complaint or the answer, any document that is incorporated by reference into the complaint,

any document that is “integral” to the complaint, and any matter of which the court may take

judicial notice. Id

. at 422. We have identified no material conflicts in the parties’ accounts.

Although the parties do dispute whether, when enrolling, Velarde was aware that he would

have to work in the Salon without pay to graduate, see Am. Compl. ¶ 46, App’x 17, Velarde

undisputedly knew that the program included a practical component, and so we consider the

dispute immaterial to our resolution of the appeal.

2 The New York State Division of Licensing Services advises that “cosmetology” means:4 the individual defendants and located in the City of Tonawanda, in Erie County, New

York. On November 16 of that year, he finished the Academy’s program, having

successfully completed what the Academy’s diploma describes as a “1000 hour course

of study in [c]osmetology [a]pproved by the state of New York.” App’x 96. The

Academy’s course included both classroom instruction and supervised practical

experience in its student salon (the “Salon”), in which members of the public could

receive cosmetology services and the Academy’s students could practice and refine

their skills. Velarde provided such services, under supervision, as generally described

by his enrollment agreement and course catalogue.

Having become a licensed cosmetologist in 2012, Velarde sued the Academy for

unpaid wages in 2014—three years after completing the program. He alleged that the

Academy violated FLSA and several sections of NYLL by failing to pay him for the

work that he did in the Salon while he was enrolled at the Academy. In his operative

complaint, 3 he charged that, “under the terms of the students’ enrollment agreement,”

he and all students enrolled in the Academy were unlawfully required to work without

providing services to the hair, head, face, neck or scalp of a human being,

including but not limited to shaving, trimming, and cutting the hair or beard

either by hand or mechanical appliances and the application of antiseptics,

powders, oils, clays, lotions or applying tonics to the hair, head, or scalp, and

in addition includes providing, for a fee or any consideration or exchange,

whether direct or indirect, services for the application of dyes, reactive

chemicals, or other preparations to alter the color or to straighten, curl, or alter

the structure of the hair of a human being.

https://www.dos.ny.gov/licensing/cosmetology/cosmetology.html (last visited Jan. 9, 2019); see

also N.Y. Gen. Bus. Law § 400(7).

3 Velarde filed his original complaint on August 22, 2014, and filed an amended complaint on

August 26, 2014. References to the “complaint” in this opinion are to the amended complaint.5 pay in the Salon as part of their course of instruction. Am. Compl. ¶ 4, App’x 8;

Enrollment Agt., App’x 98. After finishing eight weeks in the classroom, Velarde

worked at the Salon, logging 34 unpaid hours per week for 22 weeks and practicing

under the supervision of licensed practitioners. During those 22 weeks, he performed

“barbering and hair styling, skin and body treatments, [and] manicure and pedicure

services,” for the public. Am. Compl. ¶¶ 4, 19, App’x at 8, 11. He and other Academy

students were also obligated to perform janitorial and clerical work at the Salon.

Students in the Salon segment of the vocational program were further required, he

complains, to provide “whatever cosmetological service was demanded by a customer”:

they could not “choose what services they wanted or needed additional training in.”

Am. Compl. ¶ 37(c), App’x at 15. Velarde sought relief both on his own behalf and on

behalf of other former and present students.

For Salon services, the Academy charges clients “discounted prices,” with prices

“vary[ing] according to student [skill] level.” Am. Compl. ¶¶ 25

‐ 26, App’x 12. The

Salon’s rates are lower than those of nearby salons employing only cosmetologists who

are already licensed. The Academy—which is, as mentioned, a for

‐ profit enterprise—

derives some of its revenues from the fees paid by the Salon’s clients. Velarde would

receive tips for his work, but any gratuities were nominal in amount. The Academy also

derives revenue directly from students, of course: over the course of his thirty

‐ week

course of study, Velarde paid the Academy $12,823 for “tuition, books, kits, and other

fees.” Am. Compl. ¶ 18, App’x 10.

To offer commercial cosmetology services in New York, an individual must

obtain and maintain a State cosmetology license. N.Y. Comp. Codes R. & Regs. tit. 19,

§ 160.2. New York requires license applicants to have completed 1,000 hours of6 coursework in defined subject areas, including safety and health, hair styling, and nail

care. Id. § 162.4. Aspiring cosmetologists must also pass the state’s licensure

examination, which has both written and practical components. N.Y. Gen. Bus. Law

§§ 406(2)(b), 407(1).

In his suit, Velarde sought unpaid hourly minimum wages including tips and

overtime for his work in the Salon. He contended that, for purposes of FLSA and NYLL,

he and other Academy students were employees of the Academy while they performed

services in the Salon. 4 In 2016, after the Academy filed its Answer, the assigned

Magistrate Judge (Schroeder, Jr., M.J. ) filed a report and recommendation concluding

that the Academy’s motion for judgment on the pleadings should be granted. In a 2017

text order, the District Court rejected Velarde’s objections, accepted the Magistrate

Judge’s report and recommendation, and entered judgment for the Academy.

This appeal followed.

DISCUSSION

We review de novo a district court’s decision awarding judgment on

the pleadings. Mantena v. Johnson

, 809 F.3d 721, 727 (2d Cir. 2015).

The federal Fair Labor Standards Act requires, among other things, that

employers pay “[e]mployees engaged in commerce” an hourly minimum wage. 29

U.S.C. § 206(a). Similarly, the New York Labor Law requires state employers to pay

4 Velarde also pursued a claim for quantum meruit against the Academy in the district court

proceedings. The District Court dismissed that claim. On appeal, Velarde has withdrawn his

challenge to the dismissal, and we therefore treat the challenge as waived.7 their “employees” a set minimum wage. 5 N.Y. Lab. Law § 652. As described above,

Velarde’s action calls for us to decide whether students at a for

‐ profit vocational school

completing state

‐ mandated training hours in preparation for (and to qualify for) a state

licensure exam are correctly treated as “employees” of their respective schools with

respect to the “work” that they do as they are training.

We have observed elsewhere that FLSA and NYLL define “employee” in “nearly

identical terms.” Glatt

, 811 F.3d at 534. Accordingly, “we construe the NYLL definition

as the same in substance as the definition in the FLSA.” 6 Id. FLSA’s definition of

“employee,” however, is far from a model of clarity: it offers the unenlightening

tautology that an “employee” is an “individual employed by an employer.” 29 U.S.C.

§ 203(e)(1). FLSA advises further that to “employ” means “to suffer or permit to work.”

Id. § 203(g).

On de novo review, we first conclude that the District Court was correct to

analyze whether Velarde was an “employee” of the Academy by using the “primary

beneficiary” test established in Glatt

. Applying that test, we then determine that Velarde

was not an employee of the Academy when enrolled there and working in the Salon,

because he was the primary beneficiary of his relationship with the Academy, including

with respect to his work in the Salon.

5 NYLL sets its minimum hourly wage at an amount higher than FLSA’s floor. See N.Y. Lab.

Law § 652.

6 The parties do not dispute that our resolution of Velarde’s FLSA claim is dispositive of his

NYLL claim.8 I. Primary beneficiary test

In Glatt

, we considered the employment status of unpaid interns who “were

enrolled in or had recently completed a formal course of post

‐ secondary education” and

who were working temporarily in a commercial concern. 811 F.3d at 537. As we

observed there and have observed in the past, the concept of “employment”—pivotal to

FLSA’s application—is “a flexible [one] to be determined on a case

‐ by

‐ case basis by

review of the totality of the circumstances” while emphasizing the “economic reality” of

the parties’ relationships. Barfield v. N.Y.C. Health & Hosps. Corp.

, 537 F.3d 132, 141–42

(2d Cir. 2008); see also Glatt

, 811 F.3d at 536.

We looked for guidance to the Supreme Court’s decision in Walling v. Portland

Terminal Co.

, 330 U.S. 148 (1947). There, the Supreme Court instructed that FLSA,

enacted in 1938, “covers trainees, beginners, apprentices, or learners if they are employed

to work for an employer for compensation. ” Id. at 151 (emphasis added). The Court

cautioned, however, that “a person whose work serves only his own interest” does not

necessarily become “an employee of another person who gives him aid and

instruction.” Id. at 152.

The Portland Terminal decision addressed whether unpaid “trainees” in a

railroad’s program for prospective brakemen were employees for FLSA minimum wage

purposes. 330 U.S. at 149–50. The “course of practical training” that constituted the

railroad’s program had the following features:

If accepted for the training course, an applicant is [assigned]

to a yard crew for instruction. Under this supervision, he first

learns the routine activities by observation, and is then

gradually permitted to do actual work under close scrutiny.

His activities do not displace any of the regular employees,9 who do most of the work themselves and must stand

immediately by to supervise whatever the trainees do. The

applicant’s work does not expedite the company business, but

may, and sometimes does, actually impede and retard it.

Id

. An applicant who successfully completed the weeklong training course would be

added to the list of potential hires “from which the company can draw when their

services are needed.” Id

. at 150. The Court commented that, “[h]ad these trainees 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 152–53. Reasoning that FLSA “was not intended to penalize railroads for

providing, free of charge, the same kind of instruction at a place and in a manner which

would most greatly benefit the trainees,” id

. at 153, the Court concluded that the

trainees were not railroad employees.

Distilling the import of Portland Terminal in the context of interns temporarily

performing work in a commercial enterprise, we held in Glatt that “the proper question

[with respect to a purported ‘employment’ relationship] is whether the intern or the

employer is the primary beneficiary of the relationship.” Glatt

, 811 F.3d at 536. We

highlighted several salient features of the “primary beneficiary” test: under it, we

consider “what the intern receives in exchange for his work”; we “accord[] courts the

flexibility to examine the economic reality as it exists between the intern and the

employer”; and we acknowledge the complexities of relationships involving “the

expectation of receiving educational or vocational benefits that are not necessarily

expected with all forms of employment.” Id

.

Velarde argues that the District Court erred in applying Glatt ’s primary

beneficiary test in his situation because he was not an “intern”; in his view, the District10 Court should have focused solely on what he identifies as the economic reality of his

relationship with the Academy. Velarde contends that one need ask only whether the

putative employer received an “immediate advantage” from a putative employee’s

work to define the “economic reality” of this relationship. From this, he argues that the

Academy must have been his “employer” because it derived revenue by providing

Velarde’s services to the public; any training that Velarde received and the skills that he

developed by virtue of his supervised work experiences in the Salon are, in Velarde’s

view, besides the point.

As Velarde points out, it is true that in Portland Terminal the Supreme Court

counted as one factor relevant to its holding that the railroad received no “immediate

advantage” from the trainees’ work. Portland Terminal

, 330 U.S. at 153. As we explained

in Glatt

, however, Portland Terminal does not imply that FLSA renders any organization

that receives some immediate benefit from unpaid labor an “employer” of the

individual from which the benefit is derived. See Glatt

, 811 F.3d at 535–36 (rejecting

“immediate advantage” test in favor of “primary beneficiary” analysis). We agree with

Velarde that the benefits gained by the Academy from his time in the Salon are relevant

to determining whether it “employed” Velarde for FLSA purposes, but those benefits

are only one factor among several that properly bear on our analysis.

In Glatt and in subsequent decisions, we have described the primary beneficiary

test as a “way to distinguish employees from bona fide interns.” Xuedan Wang v. Hearst

Corp.

, 877 F.3d 69, 72 (2d Cir. 2017). We conclude here that the test is equally suitable for

distinguishing between “employees” and “bona fide students” of vocational schools or

vocation

‐ related programs (such as a training salon) where trainees acquire necessary

skills by practicing their craft in a real

‐ world setting. Like interns, vocational students11 enter a course of study with “the expectation of receiving educational or vocational

benefits that are not necessarily expected with all forms of employment.” Glatt

, 811 F.3d

at 536. The primary beneficiary test allows courts to measure the extent to which the

school meets these expectations against the economic benefits received by the school in

the form of free labor. As with interns, disentangling the threads of a complex economic

fabric and teasing out the respective benefits garnered by students and their commercial

training programs 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.

We therefore conclude that the District Court was correct to apply the primary

beneficiary test in determining whether Velarde was a student or an employee of the

Academy.

II. Velarde was the primary beneficiary of his relationship with the Academy

As set forth above, the primary beneficiary test seeks to assess the relative

dominance in the relationship between host institution and the individual claiming

employee status of (1) the benefits of a relationship to the individual, (2) the benefits

derived from that relationship by the putative employer, and (3) the expectations of the

parties. In Glatt

, we listed several considerations that may, with others, be useful in

determining which party is the “primary” beneficiary of a relationship considering the

totality of the circumstances. 7 Several of the Glatt factors are less telling in the vocational

7 In Glatt

, we enumerated the following seven factors as relevant to the determination:

1. The extent to which the intern and the employer clearly

understand that there is no expectation of compensation. Any12 school context, where students would seem less likely to expect a paid position with the

school after they graduate than an intern at a commercial enterprise for whom a

professional position might be a goal. In addition, at a vocational school, the program is

by definition tied to some form of an academic calendar (see factor 4, in the margin),

with students receiving course credit for their work.

Others of the Glatt factors, however, provide insight for determining which party

is the primary beneficiary of the vocational school relationship—a determination that is

likely to vary in different school settings and possibly in different state regulatory

promise of compensation, express or implied, suggests that the

intern is an employee—and vice versa.

2. 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.

3. The extent to which the internship is tied to the intern’s formal

education program by integrated coursework or the receipt of

academic credit.

4. The extent to which the internship accommodates the intern’s

academic commitments by corresponding to the academic

calendar.

5. The extent to which the internship’s duration is limited to the

period in which the internship provides the intern with beneficial

learning.

6. The extent to which the intern’s work complements, rather than

displaces, the work of paid employees while providing significant

educational benefits to the intern.

7. The extent to which the intern and the employer understand that

the internship is conducted without entitlement to a paid job at the

conclusion of the internship.

Glatt

, 811 F.3d at 536–37. We acknowledged that the list was non

‐ exhaustive. Id.13 environments. For example, a vocational school is more likely to be found to “employ”

its students if it does not have a “formal education program” with “integrated

coursework,” and instead exclusively requires students to perform tasks that are the

same as those done by regularly compensated employees. ( See Glatt factor 3.) Similarly,

a vocational school that runs a training program whose duration far exceeds “the period

in which the [program] provides the [student] with beneficial learning” may well be the

primary beneficiary of that relationship. ( See Glatt factor 5.) S ee also Marshall v. Baptist

Hosp., Inc.

, 668 F.2d 234, 236 (6th Cir. 1981) (students are employees subject to FLSA

where “the clinical training program was seriously deficient in supervision, and

. . . the

students continued to perform clerical chores long after the educational value of that

work was over”). The state licensing requirements may often serve as strong evidence

of the amount of practical training necessary for a student to become a competent

professional, but will not always be determinative. 8

We provide these examples and counter

‐ examples not to limit future courts’

consideration of some or all of the Glatt factors in particular circumstances, but to make

plain that courts may reasonably give more weight to some considerations over others

when applying the primary beneficiary test to vocational schools and their students.

Here, evaluating the totality of the circumstances presented by the parties’

pleadings and keeping in mind that the goal of the primary beneficiary test is to balance

flexibly the benefits received by the student and the economic realities of the student

‐

8 See Meredith Kolodner & Sarah Butrymowicz, A $21,000 Cosmetology School Debt, and a $9

‐ an

‐

Hour Job

, N.Y. Times, Dec. 26, 2018, at

https://www.nytimes.com/2018/12/26/business/cosmetology

‐ school

‐ debt

‐ iowa.html (last visited

Jan. 9, 2019) (describing widely varying state requirements for the number of school hours for a

cosmetology license and efforts by for

‐ profit schools to prevent their reduction).14 entity relationship, Glatt

, 811 F.3d at 536, we have little difficulty in concluding that

Velarde was the primary beneficiary of his relationship with the Academy and was not

an employee of the Academy for FLSA and NYLL purposes.

Several observations are key to our reasoning.

To begin, Velarde obtained significant benefits from his work in the Academy’s

Salon: he was required to complete 1,000 hours of coursework in specific practical areas

to qualify for taking the cosmetology license examination. See N.Y. Comp. Codes R. &

Regs. tit. 19, § 162.4. We find it meaningful that the Academy required that Velarde

complete not more than, but exactly the number of hours required by the state of New

York to qualify for licensure (some of it classroom instruction, the bulk of it providing

services in the Salon). Of those hours spent in the Salon, Velarde performed services

under the supervision of the Academy’s instructors. Velarde makes no allegation that

the Academy failed in this supervision to prepare him for either the practical or written

component of the licensing exam. Nor does he claim that his hands

‐ on experience in the

Salon was unrelated to his formal classroom instruction.

To rebut the inference that we draw, Velarde suggests, rather, that he should

have been allowed to allocate his time differently among the various areas of study that

the school required and that he should have been able to avoid performing clerical and

janitorial work that he views as without instructional benefit to him. But “practical skill

may entail practice, and a [student] gains familiarity with an industry by day to day

professional experience” that may include relatively menial or repetitive tasks. Wang

,

877 F.3d at 74 (concluding that interns received “beneficial learning” even when

performing “repetitive or similar tasks”); see also Schumann v. Collier Anesthesia, P.A.

, 803

F.3d 1199, 1213 (11th Cir. 2015) (“[T]he mere fact that an employer obtains a benefit15 from providing a clinical [program] does not mean that the employer is the ‘primary

beneficiary’ of the relationship.”). That a vocational school does not provide the optimal

learning experience for a student does not necessarily transform it into the primary

beneficiary of the relationship. This is especially so where the school (as did the

Academy here) provides a state

‐ accredited course of vocational study, requires no more

than the number of hours specified by the state, the state’s required numbers of hours

are not challenged as unreasonable, see n. 8, supra

, and the school adequately prepares

students for that state’s licensure exam (as it did for Velarde). See Benjamin v. B & H

Educ., Inc.

, 877 F.3d 1139, 1147 (9th Cir. 2017) (students not FLSA employees where

“clinical work allowed students to clock the hours they needed to sit for the state

licensing exams”).

Furthermore, although Velarde faults the Academy for charging customers fees

for his cosmetological services that exceeded the Academy’s relevant operating costs (as

he calculated them), the Academy has no obligation not to turn a reasonable profit on

its operations. The Academy’s enrollment agreement and catalogue advised that

coursework would include both classroom and practical or “salon area” components,

and Velarde was aware that he would pay the Academy, a for

‐ profit entity, for his

participation in both components, as necessary for him to meet New York’s licensure

requirements. 9 Velarde emphasizes that his 748 hours of unpaid work in the Salon, Am.

9 Velarde offered conclusory allegations related to his now

‐ abandoned quantum meruit claim,

see n. 4, supra, that he “had a reasonable expectation of receiving payment at an appropriate

wage rate for the hours [he] worked for Defendants,” Am. Compl. ¶ 69, App’x 21. The only

allegation that he made in support of the objective reasonableness of any such expectation,

however, was that the Academy “never told [him that]

. . . [he] would be forced to work

without pay,” Am. Compl. ¶ 46, App’x 17. This allegation, however, misses the point: Velarde

does not allege that the Academy told him that he would be paid for his time in the Salon. We16 Compl. ¶ 4, App’x 8, provided an “immediate advantage” to the Academy (in the form

of no

‐ cost labor in a for

‐ profit setting), but he does not assert that he replaced paid

employees at the Academy

. Rather, he argues that his lower

‐ cost labor allowed the

Academy’s Salon to better compete in the marketplace, strengthening the Academy’s

revenues and not providing commensurate educational benefit to him.

It is undoubtedly true that the Academy—a for

‐ profit institution—derived

financial value from Velarde’s work in the Salon. That Velarde provided “tangible

benefits” to the Academy in this way (and in addition to his tuition payments) is not

dispositive of the question before us, however. The sixth Glatt factor considers “the

extent to which the intern’s work complements, rather than displaces, the work of paid

employees.” Glatt

, 811 F.3d at 536

‐ 37. A student’s work is “ complementary if it requires

some level of oversight or involvement by an employee, who may still bear primary

responsibility.” Wang

, 877 F.3d at 75. As Velarde acknowledges in his amended

complaint, the Academy advertises that its students provide services “under the

watchful eye of [its] industry experienced educators.” Am. Compl. ¶ 25, App’x 12.

Given the need for such supervision, that Velarde was otherwise “useful or productive”

to the Academy did not render him its employee. Wang

, 877 F.3d at 75 (observing that

the Glatt factors do not require that “the alleged employer derive no immediate

advantage from the activities of the intern”). This is not a case in which a business uses

the façade of a vocational school to deceive students into working unexpectedly long

hours without compensation, replacing the labor of its paid employees, or working

determine objectively whether a purported employee had a reasonable expectation of payment.

See Brown v. N.Y.C. Dep’t of Educ.

, 755 F.3d 154, 166 (2d Cir. 2014). Velarde has pointed to no

affirmative acts on the part of the Academy that would cause an enrollee to expect payment for

services provided in the practical portion of the training program.17 hours well beyond long

‐ standing state requirements. Once again evaluating the totality

of the circumstances, then, we reiterate our conclusion that Velarde was the primary

beneficiary of his relationship with the Academy and therefore was not an employee of

the Academy for purposes of FLSA and NYLL.

Our conclusion is consistent with those of other courts to have addressed this

issue. The Seventh Circuit recently concluded in a closely parallel setting that “the fact

that [cosmetology] students pay not just for the classroom time but also for the

practical

‐ training time is fundamentally inconsistent with the notion that during their

time on the [salon floor] the students were employees.” Hollins v. Regency Corp.

, 867

F.3d 830, 836 (7th Cir. 2017). Here, as in Hollins

, Velarde knew that he was paying the

Academy not just for eight weeks of classroom instruction, but also for twenty

‐ two

weeks of guided practical experience in the Academy’s salon, without which he would

not have been able to qualify to perform cosmetology services in New York. See also

Benjamin

, 877 F.3d at 1147–48 (cosmetology students not employees of for

‐ profit school

that provided state

‐ mandated hours of training for cosmetology licensure).

Similarly, the Sixth Circuit has held that vocational “[s]tudents engage[d] in

courses of study that have been considered and approved of by the state accrediting

agency” were not employees of the eldercare facility in which they worked. Solis v.

Laurelbrook Sanitarium & Sch., Inc.

, 642 F.3d 518, 531–32 (6th Cir. 2011). That court noted

that the students received genuine benefits, both tangible and intangible. It

acknowledged that the students might be “employees” covered by FLSA if the

“supervision was inadequate, the exposure to various aspects of the trade limited, and

the overall value to the students nil,” but determined that none of those descriptors

applied. Id

. In this case, Velarde does not allege that his exposure at the Salon to18 cosmetology was limited or that he did not obtain substantial value from his learning

experiences at the Academy.

For these reasons, we are persuaded that the District Court correctly granted

judgment on the pleadings to the Academy on Velarde’s FLSA and NYLL claims.

CONCLUSION

The primary beneficiary test articulated in Glatt applies to the relationship

between students who attend vocational schools and those schools. Patrick Velarde was

the primary beneficiary of his relationship with the Academy, including with respect to

his supervised work in the Salon. Velarde was thus not an “employee” of the Academy

under FLSA and NYLL. The judgment of the District Court is AFFIRMED

.