Exam
WORKING STUDENTS GONE AWRY
Is there any merit to Laura Loser’s claim for un- paid wages? The answer is yes. The term “working student” exists in the horse world but not in the law. The law governing train- ees, apprentices, volunteers and unpaid interns does not sanction the “working student” concept as it has existed historically in the horse industry. Courts across the country are hearing more of these cases, as the downturn in the economy created a glut of unemployed workers hoping to get a foot in the door by basically volunteering to work for free. Courts have been skeptical of “training” ar- rangements where a trainee is basically working for free. A simple version of the “test” used by the courts includes considering whether the trainer derives any benefit from the trainee’s efforts and whether the trainee is performing the same work as a paid employee. Unless the training received by the trainee “most greatly benefits the trainee rather than the trainer,” the trainer must treat the trainee as an employee: paying the trainee minimum wage (and over time, if applicable). The best practice for the horse industry is to
treat working students as employees (pay them wages and give them a W2) and if the intent of the relationship is an exchange of work for instruction and opportunity, then to have the student “pay” for the trainer’s services at an agreed upon value. Bartering is not okay unless the exchange of money is documented—there is nothing illegal about the employee also being a client of the trainer and pay- ing the trainer for training services. But some states have laws that prohibit employers from reducing an employee pay check (for other than withholding taxes or employee authorized deductions for things like payment of health insurance premiums or con- tributions to retirement accounts). Courts (and the Department of Labor) frown upon arrangements where someone is working for no take home pay— after the Civil War, slavery by any other name is still unacceptable. Thus, the traditional “working stu- dent” is not okay and Laura’s claim has merit.
Can a working student file a workers’ compensa- tion claim? The answer is yes. As explained above, a working student will most likely be classified as an “employee,” and as such is entitled to claim workers’ compensation benefits for an “on the job injury.” The key to workers’ com- pensation is that as long as the injury occurs on the job, it is a “no fault” situation. When recovery of damages is not conditioned upon a showing of “fault,” it may well be the first avenue taken by an employee or his/her family in the event of an injury. Even an equine activity liability act or a liability
release agreement or waiver cannot bar a claim for a work related injury under a state workers’ com- pensation law. In some states, horse farm workers are classified
as “agricultural” employees and are exempt from workers’ compensation law requirements. This does not change the possibility of a trainer being sued for injuries sustained by a working student or other employee. In a state where a trainer is required to carry workers’ compensation coverage and fails to do so, then the filing of a claim triggers the possibility of hefty fines. If Terry did not carry workers’ compensation in-
surance, then she may have to pay the claim out of pocket. Even if she had liability coverage, a general commercial liability policy will exclude employee claims for work related injuries. Terri may have cer- tain defenses available to her, but “Amanda wasn’t working at the time” almost certainly isn’t one of them.
About the author: Krysia Carmel Nelson is an at- torney from Virginia who is a nationally-recognized expert in equine law. Attorney Nelson represents horse owners, train- ers, riders, breeders, equestrian facilities, farms, clubs and associa-
tions across all nationally and internationally recognized disciplines. As a lifelong equestrian, she currently rides and competes her Hanoverian Affirmed on Appeal in the amateur hunters. She can be reached at
eqlaw@aol.com.
54 July/August 2016
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© The Book LLC 2011
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