HR Management & Compliance

Employee or Trainee? Florida Employer Learns the Difference

By Tom Harper, The Law and Mediation Offices of G. Thomas Harper, LLC

Imagine you have a worker who is nearing retirement. His son agrees to learn the position in anticipation of taking over when his father retires. You don’t pay the worker’s son, even though he performs some work for you. Is the worker’s son your employee? Read on to find out.


Michael Axel was a successful automobile wholesale manager at Fields Motorcars, a Tampa car dealership. Michael’s son Scott had some personal problems and needed a job. In 2010, Scott was arrested for driving while intoxicated. The next year, Scott was hired by Enterprise Rent-A-Car, but he was later fired for unsatisfactory attendance. Scott had a drug problem at the time and went to rehab for 8 months. In December 2012, he applied for a job at Fields Motorcars, but he was not offered the position.

In January 2013, Michael asked Gary Gordon, the general manager of Fields Motorcars, to hire Scott. Gordon knew about Scott’s history and told Michael that the dealership was not hiring at the time. However, Gordon told Michael that Scott could begin learning Michael’s job in anticipation of his retirement. Michael asked Gordon if the dealership would split his compensation with Scott. Gordon said no but stated that Michael could pay Scott himself.

Thereafter, Scott started showing up to “work” at the dealership every day, even though Michael did not pay him for his work. Instead, Michael allowed Scott to live in his home and provided him with financial support. Scott began to “shadow” Michael at the dealership.

For more than a year, Scott located and researched cars, analyzed their condition, attended auctions, transported cars between dealerships, and signed between 60 and 150 purchase/sales agreements on behalf of Fields Motorcars. Since he was at the dealership daily, Scott began helping the used car manager by posting cars for sale on Craigslist, eBay, and TradeRev.

Scott was told he would take over Michael’s position when his father retired, and Scott began to inform employees. Scott testified that Gordon told him that the dealership would “try to ease [him] in” if he learned his father’s job and that there was a good chance he would take over his father’s position when he retired. However, Michael did not retire. Instead, Michael was fired by Fields Motorcars in May 2014, and—you guessed it—Scott stopped working for the dealership.

Scott sued, claiming Fields Motorcars failed to pay him minimum wage under the Fair Labor Standards Act (FLSA) and the Florida Minimum Wage Act and overtime under the FLSA. Scott also asserted state-law claims for Quantum meruit and unjust enrichment are legal theories recognized in Florida. The theories could have allowed Scott to receive compensation based on his claim that he provided services of value to Fields Motorcars without payment and was owed money as a result.

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