“Trainees” alleged that they should have been paid for time spent attending a 12-week dealer training program offered by a casino.

What happened

PPE Casino Resorts Maryland, LLC, which owns and operates the Maryland Live! casino, began offering slot machines in June 2012 after gambling was legalized in the state. Later that year, the state authorized casinos to offer table games, such as blackjack, poker, craps, and roulette starting on April 11, 2013.

Anticipating having about 150 “live table games” on April 11 at Maryland Live! and needing to hire about 830 dealers to run them, the company developed a free, 12-week table games “dealer school” and said the school would be held in conjunction with a community college.

About 10,000 people applied for the advertised positions. The company conducted extensive interviews, assessing the individuals’ congeniality, personality, and basic math skills. Approximately 830 applicants were invited to attend the school.

Running from January 7, 2013, to April 1, 2013, the school included 4 hours of instruction each day Monday through Friday—that is, 20 hours per week—and was offered during four time periods. However, due to “numerous delays,” it consumed more than 20 hours per week. The training ended 10 days before table games were to become legalized in Maryland.

Trainees later claimed that the training was specific to how the company wanted the table games at Maryland Live! to be performed and that the school was run entirely by the company—rather than in conjunction with a community college as advertised. In addition, the company apparently wrote all course materials and its employees taught all of the classes.

During dealer school, the trainees completed employment forms, including an income tax withholding form and direct deposit authorization form. They were required to submit to a drug test, provide their fingerprints and Social Security numbers, and allow the company to obtain their driving records and perform criminal and financial background checks on them so that they could get a gambling license by the time they finished the course.

Those who attended for the full 12 weeks were paid the minimum wage ($7.25 per hour) for the final 2 days of instruction only.

In 2014, trainees filed a class action suit, alleging violations of the federal Fair Labor Standards Act (FLSA) and state law. However, the district court granted the company’s motion to dismiss the case, concluding that the trainees did not show that the company primarily benefited from their attendance at the training.

The trainees appealed to the U.S. Court of Appeals for the 4th Circuit, which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia. They alleged that the “sole purpose” of the company’s “temporary makeshift ‘school’ was to hire the exact number of dealers needed to fill the vacant table games positions” and that the company “disguised its employee-training course as a school for the purpose of not paying” the trainees.

What the court said

The appeals court reversed and sent the case back to district court but did not express an opinion about whether attending the dealer school was “work” or whether the trainees were “employees” for the purposes of the FLSA.

Under the FLSA, employers must pay employees “for all hours worked.” In the 1940s, the Supreme Court made the assumption that “work” means “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business” and, separately, that a trainee may be an “employee” under the FLSA.

The Supreme Court has not addressed the latter issue since the 1940s, and the 4th Circuit has addressed it only once—in 1989 when it concluded that trainees were “employees” for FLSA purposes when they participated in a training program. In that case, the court reasoned that the employer “received more advantage” from the training program than the trainees did; that is, the employer was the “primary beneficiary” of the training program.

In the current case, the company argued that “it is literally impossible for the Trainees to show that they provided the Casino with any work or that the Casino received any benefit during the time they attended table game dealer’s school because … the Casino did not operate table games at that time.”

However, the appeals court said that just because the company “could not operate table games during the ‘dealer school’ does not necessarily mean that the Trainees were not working for FLSA purposes in attending the required ‘school.’”

Meanwhile, the trainees said the company primarily benefited from the training, ensuring them a workforce of more than 800 dealers trained to operate table games within days of table games becoming legal. The trainees also contended that the training was so unique to the company’s specifications that it was not transferrable to work in other casinos.

Harbourt et al. v. PPE Casino Resorts, Maryland, LLC (No. 15-1546) (U.S. Court of Appeals, 4th Cir., 4/25/16)

If you require applicants to complete training that primarily benefits your company, they might be considered “employees” for purposes of the FLSA, and as a result, you might have to pay them at least the minimum wage for the time spent in training.