### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3607

V ENITIA H OLLINS

, Plaintiff

‐ Appellant

,

v.

R EGENCY C ORPORATION and H AYES B ATSON

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 C 07686

— John J. Tharp, Jr.

, Judge

.

____________________

A RGUED M AY 25, 2017

— D ECIDED A UGUST 14, 2017

____________________

Before W OOD

, Chief Judge

, and B AUER and H AMILTON

, Cir

‐

cuit Judges

.

W OOD

, Chief Judge

. Regency Corporation operated for

‐ profit cosmetology schools in 20 states. Each Regency Beauty

Institute offered both classroom instruction and practical

instruction in a “Regency Salon,” where members of the

public could receive cosmetology services at low prices.

Venitia Hollins was a Regency student, first at its Merrillville,2 No. 15

‐ 3607

Indiana, location, and later at its Tinley Park, Illinois, facility.

In this case, Hollins asserts that the work she performed in the

Salon was compensable for purposes of the Fair Labor

Standards Act (FLSA), 29 U.S.C. § 201; she also asserts that

Regency violated various state laws, including the Illinois

Minimum Wage Law, 820 ILCS 105/1 et seq.

, the Illinois Wage

Payment and Collection Act, 820 ILCS 115/1 et seq.

, and the

Indiana Wage Payment Statute, Ind. Code § 22

‐ 2

‐ 5

‐ 1 et seq.

,

among many others. Her complaint indicates that she wanted

to bring her suit as a collective action under the FLSA and a

class action under the state statutes, but the district court

denied her motion conditionally to certify the FLSA action

and never certified a class action under Federal Rule of Civil

Procedure 23. Instead, it addressed the individual merits of

her case on summary judgment and ruled in Regency’s favor.

Hollins has appealed. She now argues that this court lacks

jurisdiction over her own appeal, because the claims of other

putative members of her collective and class actions are still

before the district court. In the alternative, she contends that

she and her fellow students should have been recognized as

employees entitled to proper payment under the relevant

statutes.

I

Regency, which has since closed its doors, at one time op

‐

erated nearly 80 cosmetology schools around the country. Its

students were required by state law to complete 1,500 hours

of a combination of classroom and “hands

‐ on” work. They ac

‐ complished the latter task by working in the school’s salon, at

which they provided services—at discounted prices—for cus

‐

tomers. Regency gave them credits for hours worked at the

salon, which it also called the “Performance Floor,” but it didNo. 15

‐ 3607 3

not otherwise pay them for their work. Believing that she and

her fellow students were entitled to wages, Hollins sued un

‐

der the FLSA and state

‐ law wage statutes to recover the mon

‐

ies she believed were owed.

Hollins filed her initial complaint on October 25, 2013,

against Regency and Hayes Batson, its owner and chief exec

‐

utive officer (we refer to them collectively as Regency); three

days later she filed a motion for class certification under Fed

‐

eral Rule of Civil Procedure 23 and for conditional certifica

‐

tion of the FLSA collective action, 29 U.S.C. § 216. The district

court took no action on either part of her motion. Instead, the

parties filed a proposed case

‐ management plan, in which they

suggested that the court rule first on the liability issues for the

named plaintiff (Hollins), and then decide any class or collec

‐

tive certification issues. Over the next year, discovery pro

‐

ceeded. During that time, a number of people filed consent

forms indicating that they wanted to opt in to the FLSA col

‐

lective action. The district court did nothing with those forms.

Instead, on October 27, 2015, it granted summary judgment in

favor of Regency and denied as moot Hollins’s pending mo

‐

tions for conditional certification of the FLSA collective action

and class certification on the other theories. (The issues pre

‐

sented in the motions were not really moot, since they still

could be affected by our ruling. The most one can say is that

by not granting them, the district court effectively limited the

case to Hollins’s individual claims.)

Hollins filed a notice of appeal on November 20, 2015, well

within the 30 days provided by Federal Rule of Appellate

Procedure 4(a)(1)(A). But she became worried about appellate

jurisdiction because of the presence of the people who had

expressed an interest in opting into the FLSA action. To4 No. 15

‐ 3607

resolve that question, she moved on May 23, 2016, to dismiss

the appeal or to confirm appellate jurisdiction. At our request

Regency responded, and in an order issued on December 21,

2016, we decided to carry the jurisdictional issue with the

case.

II

Federal litigants normally must wait for a final judgment

before they can bring a matter to the court of appeals. See

28 U.S.C. § 1291; Mohawk Indus. v. Carpenter

, 558 U.S. 100, 106–

07 (2009). Although there are some exceptions to that rule, see,

e.g.

, 28 U.S.C. § 1292(a)(1) (preliminary injunctions), 28 U.S.C.

§ 1292(b) (questions of exceptional importance), F ED

. R. C IV

. P.

23(f) (class

‐ certification decisions), none of those exceptions

applies to the present case. The question before us instead is

whether the judgment that Hollins wants to challenge is truly

final—that is, does it dispose of all claims of all parties? See

F ED

. R. C IV

. P. 54; see also Gelboim v. Bank of Am. Corp.

,

135 S. Ct. 897, 902 (2015).

The analysis that applies to the putative Rule 23 class dif

‐

fers somewhat from that which applies to the FLSA collective

action, but those differences are not material for our purposes.

The critical question for both is whether the existence of the

unnamed Rule 23 class members, or the aspiring members of

the collective action who have signaled their interest in par

‐ ticipating, defeats the finality of the district court’s judgment

for purposes of appeal. In other words, are those people ad

‐

ditional “parties” whose claims have not yet been resolved? If

so, then we do not have a final judgment. If not, then we may

proceed.No. 15

‐ 3607 5

Looking first at the Rule 23 part of the case, we see a

common situation: a person files an action on behalf of herself

and others similarly situated, but the district court dismisses

the individual case before ruling on class certification (either

because there is no pending motion for certification, or

because the district court chooses not to reach that issue). In

such a case, the Supreme Court has said that “no one [is]

willing to advance the novel and surely erroneous argument

that a nonnamed class member is a party to the class

‐ action

litigation before the class is certified .” Smith v. Bayer Corp.

,

564 U.S. 299, 314 (2011) (quotation marks and citation

omitted); see also Standard Fire Ins. Co. v. Knowles

, 568 U.S. 588,

593 (2013) (“[A] plaintiff who files a proposed class action

cannot legally bind members of the proposed class before

the class is certified.”). This does not mean that the rights of

the unnamed putative class members are unaffected by the

filing of the action. For example, the statute of limitations on

their claims is suspended during the pendency of the putative

class action. Am. Pipe & Constr. Co. v. Utah

, 414 U.S. 538 (1974).

And if an unnamed member wants to appeal the denial of

class certification, the Supreme Court has said that she may

do so without first formally intervening in the district court.

Devlin v. Scardelletti

, 536 U.S. 1 (2002). But neither of these

cases even hints that appellate review is impossible without

some kind of order from the district court disposing of the

claims of the unnamed members of an uncertified class.

We conclude that the same result should follow for the

claims of potential members of an FLSA collective action, if

the collective action has never been conditionally certified

and the court has not in any other way accepted efforts by the

unnamed members to opt in or intervene. (Hollins did not ar

‐

gue that the outsiders’ efforts to opt into her case should have6 No. 15

‐ 3607

been construed as motions to intervene under Federal Rule of

Civil Procedure 24, nor is it clear that intervention of right un

‐

der Rule 24(a), rather than permissive intervention under

Rule 24(b), would have been correct. We have no need to pur

‐

sue this line of analysis further.)

Even though the statute, 29 U.S.C. § 216(b), does not spell

out any process for conditional certification, the Supreme

Court has endorsed this practice—indeed, it has gone further

and characterized it as an important step in these cases. In

Genesis Healthcare Corp. v. Symczyk

, 133 S. Ct. 1523 (2013), the

Court addressed FLSA collective actions in some detail. Its

central holding was that a potential collective action is no

longer justiciable when the lone plaintiff’s individual claim

becomes moot. Id. at 1526. In the course of explaining this de

‐

cision, the Court noted:

Under the FLSA

... “conditional certification” does not

produce a class with an independent legal status, or

join additional parties to the action. The sole conse

‐

quence of conditional certification is the sending of

court

‐ approved written notice to employees,

... who in

turn become parties to a collective action only by filing

written consent with the court, § 216(b).

Id. at 1530. The Court never said, however, that an unnamed

and un

‐joined member of the FLSA collective action could be

‐

come a party by filing a consent before the court even condi

‐ tionally certified the group.

The role of the district court in defining the scope of the

potential FLSA collective action is more than ministerial. The

named plaintiff is free to allege whatever she wants for her

group, but the court must assess that proposed definition andNo. 15

‐ 3607 7

assure itself that the employees identified are raising similar

FLSA claims. In exercising this power, district courts do not

hesitate to pare down the group or to deny conditional certi

‐

fication altogether. See Laura L. Ho, Collective Action Basics

,

10 E MP

. R IGHTS & E MP

. P OL ’ Y J. 427, 429 & n. 12 (2006) (citing

cases). This implies that, just as in Rule 23 class actions, the

members of an uncertified group are not the type of parties

whose presence would block a judgment against the named

plaintiff from being final, unless they have otherwise gained

full party status. Our decision in Epenscheid v. DirectSat USA,

LLC

, 688 F.3d 872 (7th Cir. 2012), supports this conclusion.

There we wrote the following:

Collective actions are certified and decertified just

like class actions, unaffected by the absence of a gov

‐ erning rule of procedure. And “when a collective ac

‐

tion is decertified, it reverts to one or more individual

actions on behalf of the named plaintiffs,” Alvarez v.

City of Chicago, 605 F.3d 445, 450 (7th Cir. 2010)—which

is just what happens when a Rule 23 class is decerti

‐

fied: the unnamed class members go poof and the

named plaintiffs’ claims revert to being individual

claims. If the denial of class certification is reversed, the

suit will proceed with the plaintiffs as representatives

of the opt

‐ ins. There is no relevant difference between

the collective, consisting of opt

‐ ins, and the class, con

‐ sisting of class members minus the opt

‐ outs.

688 F.3d at 877.

All of this persuades us that we do have a final judgment,

and that the unaccepted opt

‐ in notices that the district court

received do not stand in the way of that conclusion. The col

‐8 No. 15

‐ 3607

lective action was never conditionally certified, and those no

‐

tices did not, of their own force, make the filers “parties”

whose unresolved claims would defeat finality. This is not to

say that class actions and FLSA collective actions are identical

for other purposes. For instance, unnamed members of a Rule

23 class benefit from American Pipe ’s tolling rule, whereas the

claims of potential members of an FLSA collective action are

not tolled until they file opt

‐ in notices. See 7B C HARLES A LAN

W RIGHT & A RTHUR R. M ILLER

, F ED

. P RAC

. & P ROC

. § 1807 (3d

ed. 2005). But tolling is not an issue in this case. It is enough

to say nothing about the claims of the people who either did

signal their interest in opting into Hollins’s FLSA claim, or

those who might later wish to do so, defeats appellate juris

‐

diction. We therefore are free to proceed to the merits of Hol

‐

lins’s individual case.

III

In assessing whether Hollins was an “employee” for pur

‐

poses of the FLSA, we would like to be able to rely on the stat

‐

ute. But, as we noted in Vanskike v. Peters

, 974 F.2d 806 (7th Cir.

1992), it is of little use: it “defines the term ‘employee’ in a cir

‐

cular fashion, as ‘any individual employed by an employer,’

29 U.S.C. § 203(e)(1)

... .” 974 F.2d at 807. The Supreme Court

has added that we must construe the terms “employee” and

“employer” expansively, see Nationwide Mutual Ins. Co. v.

Darden

, 503 U.S. 318, 326 (1992). This, we said in Vanskike

, re

‐ quires us to “examine the ‘economic reality’ of the working

relationship.” 974 F.2d at 808. The Department of Labor has

offered a six

‐ factor “test” that (it thinks) enables a court to dis

‐ tinguish between an employee and an unpaid trainee. See

DOL, Wage & Hour Div., Fact Sheet # 71, Internship Programs

Under The Fair Labor Standards Act (April 2010)No. 15

‐ 3607 9

https://www.dol.gov/whd/regs/compliance/whdfs71.pdf

(last visited Aug. 14, 2017). It instructs that “[i]f all of the fac

‐

tors listed [below] are met, an employment relationship does

not exist under the FLSA”:

1. The internship, even though it includes actual op

‐

eration of the facilities of the employer, is similar to

training which would be given in an educational

environment;

2. The internship experience is for the benefit of the

intern;

3. The intern does not displace regular employees, but

works under close supervision of existing staff;

4. The employer that provides the training derives no

immediate advantage from the activities of the in

‐

tern; and on occasion its operations may actually be

impeded;

5. The intern is not necessarily entitled to a job at the

conclusion of the internship; and

6. The employer and the intern understand that the

intern is not entitled to wages for the time spent in

the internship.

Id. Numerous other multi

‐ factor tests have also been used by

courts. See, e.g.

, Estate of Suskovich v. Anthem Health Plans of Va.,

Inc.

, 553 F.3d 559, 565–66 (7th Cir. 2009) (ten factors, adapted

from the ALI’s Restatement (Second) of Agency § 220); Sec. of

Labor v. Lauritzen

, 835 F.2d 1529, 1534–35 (7th Cir. 1987) (six or

seven factors).10 No. 15

‐ 3607

The district court was rightly skeptical about the utility of

this plethora of “factors.” It decided instead to turn to the Su

‐

preme Court’s decision in Walling v. Portland Terminal Co.

, 330

U.S. 148 (1947), for guidance on the substance of the distinc

‐

tion that the statute is trying to draw. The question in Portland

Terminal was whether unpaid people who participated in a

course of practical training for prospective yard brakemen

were “employees” for purposes of the FLSA. This training, the

Court said, was “a necessary requisite to entrusting them with

the important work brakemen must do.” Id. at 149. The course

required the trainees to perform the actual work of brakemen,

under the supervision of the permanent crew. Even though

the trainees were performing some useful function for the em

‐ ployer, and they were doing work identical to that of the or

‐ dinary employees, the Court concluded that they were not

“employees” as the FLSA uses the term.

It came to this conclusion despite its recognition that

“[w]ithout doubt the Act covers trainees, beginners, appren

‐

tices, or learners if they are employed to work for an employer

for compensation.” Id. at 151. Nevertheless, the record

showed that the railroads received no immediate advantage

from any work done by the trainees. Id. at 153. The Court

stressed that this was not a case “in which an employer has

evasively accepted the services of beginners at pay less than

the legal minimum without having obtained permits” from

the government. Id.

In an attempt to make sense of all this, the Second Circuit

confronted the question whether unpaid interns who were

working for Fox Searchlight and Fox Entertainment Group

were employees. Glatt v. Fox Searchlight, Inc.

, 811 F.3d 528 (2d

Cir. 2015). It reviewed much of the same material we have justNo. 15

‐ 3607 11

discussed, and then turned to the question of the correct legal

test to use. The plaintiff

‐ interns urged that a person should

qualify as an employee “whenever the employer receives an

immediate advantage from the interns’ work.” 811 F.3d at 535.

The Department of Labor, as amicus curiae

, urged the court to

adopt the six

‐ factor test it had developed. The court rejected

both of those suggestions and instead adopted the defend

‐

ants’ proposed test, which asks “whether the intern or the em

‐ ployer is the primary beneficiary of the relationship.” Id. at

536. It identified “three salient features” of its primary

‐ bene

‐ ficiary test: (1) it focuses on what the intern receives in ex

‐ change for his work; (2) it is flexible enough to permit the

court to take into account the economic reality of the situation;

and (3) it reflects the fact that the intern

‐ employer relationship

differs meaningfully from the standard employee

‐ employer

relationship. Id.

The Eleventh Circuit found the Glatt approach persuasive

in its own case dealing with interns, Schumann v. Collier Anes

‐

thesia, P.A.

, 803 F.3d 1199 (11th Cir. 2015). It found significant

the fact that the training involved in Portland Terminal was not

“a universal requirement for a particular type of educational

degree or for professional certification or professional licen

‐

sure in the field.” Id. at 1210. In addition, just as the Supreme

Court had done in Portland Terminal

, the Eleventh Circuit

acknowledged “the potential for some employers to maxim

‐

ize their benefits at the unfair expense and abuse of student

interns.” Id. at 1211. It suggested an approach that focuses on

the benefits the student receives, while still considering

whether the employer is receiving some unfair advantage or

otherwise abusing the relationship. Id. (At that point, it turned

to a seven

‐ factor test, which we omit.)12 No. 15

‐ 3607

In our case, time on the Professional Floor was a state

‐

mandated requirement for graduation from the cosmetology

program— i.e. a universal requirement for professional licen

‐

sure. Hollins was actually paying Regency for the oppor

‐ tunity to receive both classroom instruction and supervised

practical experience, both of which were necessary for her de

‐

gree. Regency was in the educational business (indeed, for

profit), not in the beauty salon business. Hollins did not need

to go out and find a place where she could serve as an intern

or an extern; Regency took care of that. We conclude that the

fact that 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 Performance

Floor the students were employees. It is also notable that Re

‐

gency structured things to minimize competition with ordi

‐

nary beauty salons: it forbade licensed cosmetologists from

working in the Regency Salon, and the students received not

money, but licensing hours and academic credit for their time

and effort.

Hollins resists this conclusion by pointing out that the stu

‐

dents were also required to perform various menial tasks,

such as acting as receptionists, cleaning and sanitizing the

floor, selling salon beauty products, and restocking those

products as needed. Regency could have concluded, however,

that these tasks are also part of the job of the cosmetologist,

and that the students needed to learn time

‐ management

skills. Moreover, as the district court pointed out, “Salon

Safety and Sanitation” is the most heavily tested subject area

on the Illinois and Indiana cosmetology licensing exam. Re

‐

gency was required by the National Accrediting Commission

of Career Arts & Sciences to use “practical learning methods”

throughout its curriculum. That is enough to show that theNo. 15

‐ 3607 13

incidental tasks to which Hollins points are not enough to tip

the balance over to the “employee” side of the line.

The district court’s careful opinion goes into more detail

about these and other considerations that demonstrate why

Hollins was not entitled to compensation for her time in the

salon. See Hollins v. Regency Corp.

, 144 F. Supp. 3d 990 (N.D.

Ill. 2015). These cases normally turn on the facts of the partic

‐

ular relationship and program, and so we should not be un

‐

derstood as making a one

‐ size

‐ fits

‐ all decision about pro

‐

grams that include practical training, or internships, or tasks

that appear to go beyond the boundaries of a program. On the

present record, however, we conclude that the district court

correctly granted summary judgment for Regency Corpora

‐

tion, and we therefore A FFIRM its judgment.