Recently, students have been suing their technical schools, arguing that their time spent performing clinic work and other chores should be considered compensable time. In October, Detroit students fighting the Douglas J Aveda Institute won when U.S. District Court Judge Judith Levy ruled that they were considered employees under federal law. However, massage students fighting Steiner Education Group recently lost, with the 10^th Circuit Court of Appeals determining that the students were not entitled to wages for their time spent in training.

In Part 1 of this article, I’ll walk you through both of the cases and the decisions made. Then, in Part 2, we’ll define the line between valuable technical practice and compensable work and what we can do to keep schools from unintentionally crossing that line. In Part 3, we’re going to shake the whole system up with proposals for alternative education methods that could potentially end the push for deregulation forever.

If you own a school or attend one, don’t skip this.

The Douglas J Aveda Institute Case

What we know:

• Students testified that they were required to perform menial tasks during instructive hours, such as cleaning floors, restocking products, and doing laundry.
• Lawyers for Douglas J argued that manual labor was “part of the education.”
• Judge Judith Levy disagreed, stating, “These tasks are beyond the pale of the contemplated cosmetology education and training the plaintiffs sought,” and determined the students could be considered employees under federal law, which means they are entitled to be compensated.
• This ruling paves the way for class action, which could affect as many as 5,000 or 6,000 students at all seven of the Douglas J locations.

Unfortunately, without an official written decision, not much more information can be found regarding the specifics of the Douglas J Aveda Institute case, but from the information provided in the various news articles, we can see that the defendant’s argument that the manual labor was “part of the education” didn’t hold enough merit to convince Judge Levy.

Co-owner of Douglas J, Scott Weaver, holds a position on the Michigan State Board of Cosmetology, which does not test students on their ability to clean floors, stock retail and backbar, or do laundry. To pass inspections, schools are required to operate their facilities in accordance with board guidelines (school must be “clean, sanitary, and safe” at all times), but these guidelines do not specifically empower school owners to utilize paying students for janitorial work.

The Steiner Education Group Case

What we know:

• Steiner, like most technical beauty/massage schools, required students to perform services for paying customers as part of their clinical curriculum. These students were not compensated for performing clinic services.
• However, students allege that unlike most technical beauty/massage schools, Steiner educators did not instruct, monitor, supervise, or train the students whatsoever during clinic massages. Therefore, the plaintiff alleged that Steiner was using students as unpaid employees in a factory setting instead of providing any education in a clinical learning environment.
• Steiner disputed that the students received no instruction or feedback from educators and customers.

The Steiner case differs from the Douglas J case significantly. In the Douglas J case, students were made to perform trivial janitorial tasks without compensation. In the Steiner case, students argued that they were not given supervision and instruction during clinic hours and were therefore employees; not students.

In making this determination, the court decided to use six factors adopted from Reich v Parker Fire Protection Dist. to evaluate the economic realities of the parties’ relationship. They concluded:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the trainee;
3. The trainees do not displace regular employees, but work under close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasions his operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the completion of the training period;
6. The employer and trainees understand that the trainees are not entitled to wages for the time spent in training.

Steiner prevailed on all six factors, despite the fact that Colorado state law requires that clinical work be conducted under “immediate supervision.” More than half a dozen students who Steiner deposed from various schools around the country stated there was never any instruction, monitoring, observation, supervision, or training during clinic massages. Of the hundreds of pages of advertisements Steiner released, ninety percent of them did not inform the public that massages would be performed by students.

The plaintiff filed for an appeal, arguing that the court erred in applying Reich, but lost.  (You can learn more about why the court upheld its initial decision here.)

If the same test were applied to Douglas J, they likely would have passed on factors 1, 5, and 6, but probably would not have prevailed on any of the others.

The Debate

This issue polarizes beauty professionals and inspires some really strong emotional responses, with older professionals accusing younger professionals of being “lazy” and “entitled” and veteran professionals demanding that new entrants “pay their dues” the way they had to. In this section, we’ll address some of the most common statements and expectations.

“What a bunch of entitled, spoiled brats! Folding towels and scrubbing floors are a part of salon life that all professionals are expected to do!”

More than any other comment, a variation of this one pops up most frequently in this debate, so let’s get this out of the way immediately.

Students who are paying $15,000+ for an education but are instead spending their time doing menial work are not “spoiled” or “entitled.”

The “entitled” parties are those being paid thousands for tuition and thousands more for the services their students perform and who, despite receiving every cent of that money, still expect free janitorial work from their students.

Menial work will absolutely be expected of you in the salon, but you will be getting compensated to perform those tasks. You don’t need to pay tens of thousands of dollars to learn how to do them.

“It’s just a few hours a day. It’s not a big deal.”

Let’s say you’re paying $20,000 tuition and going to school in a state like Florida that requires 1,200 hours. You spent a total of just 40 hours this month doing reception, laundry, retail, and other chores that have exactly nothing to do with what you’re going to school for. In addition to not being paid, you’re paying the school $667 to do chores employers are legally required to compensate employees and interns to perform.

Still think it’s not a big deal?

We’re only considering the cost of 40 hours, which isn’t realistic at all. Many students are spending far more than 40 hours of their educational hours doing menial chores and other job duties that don’t contribute to their education.

“Schools should be preparing their students for salon life, so they should be doing the same chores we do.”

Schools are not responsible for teaching adult students how to operate washing machines, fold towels, answer phones, dust shelves, scrub toilets, or mop floors. When you promote this argument, you end up with salon owners who complain that because a student doesn’t come out of school as a perfectly trained employee of their salon (knowing how to handle the salon’s booking, inventory, or cleaning), that the schools aren’t competently training the students—a unfair criticism based on unrealistic expectations of the institution.

If schools are expected to bear the burden for getting beauty students prepared for “salon life,” are they also expected to prepare them for freelancing, business ownership, sales work, educating, platform artistry, online influencing, and all the other ways a professional may choose to work?

Many employers in our industry (and I’m guilty of this myself) are often aggravated by applicants who aren’t technically proficient right out of school. Professionals also complain about how they didn’t feel prepared coming out of school because they didn’t get enough technical education. Both of those complaints and expectations are absolutely reasonable. Maybe instead working behind a desk, inside a dispensary, or on their knees cleaning the floors, those students could be practicing the skills they’re paying to learn so none of us have anything to complain about. Instead, we’re placing the burden on the schools to teach the students how to be both model employees and technically proficient, within hourly limitations we nearly universally agree are inadequate.

This position undermines the argument for increased standards, causing a domino effect that ends with deregulation.

We cannot say on one hand, “Schools don’t provide enough practical instruction. We need more hours to ensure our students are better prepared to execute quality services safely,” and say at the same time, “Students should be made to spend their valuable, limited hours doing tasks completely unrelated to their education.”

If we’re going to make a legitimate argument for increasing graduation standards (particularly for specialist licenses like nails and skin care), we must demand that schools better utilize their time with the students.

Courts object to student exploitation for good reason. Schools push for states to increase hourly requirements and bake them into our regulations so they can qualify for federal funding. If the states realized how much of that time the schools argued was so “critical” to the student’s education was spent doing work that has nothing to do with the program’s curriculum, they would drop the hourly requirements, which would compromise the school’s ability to take federal aid, which would then compromise enrollment. It’s impossible to argue that every hour counts and is absolutely necessary to getting students prepared to meet minimum state board standards when your students are spending so much of that time answering phones, stocking retail, and doing the salon’s laundry during clocked instructive hours.

This argument also imperils licensing standards altogether by bolstering legislators’ arguments for deregulation. Our schools walk a fine line—hourly requirements have to be high enough to justify a cost that will allow their students to qualify for federal aid, but not so high that legislators can argue that they’re unreasonable. Until wages for the profession increase and attrition decreases, schools have no room to increase rates or hours, so ultimately, schools (and, by extension, our industry) are hamstrung.

Moving Forward

As more students choose technical schools over colleges, we need to address a few key issues.

1. Where do we draw the line between practical clinical experience and compensable labor?
2. How should we define the scope of our technical schools?
3. How can we ensure schools are prohibited from (and punished for) exploiting their students?

In Part 2: The Industry’s Education Solution, we’ll tackle those questions, but until then, what do you think? Should schools be allowed to use students as janitors? Should instructors be required to physically observe and participate during clinic hours? With regards to job training, where do the school’s responsibilities end and an employer’s begin?