Should Son Be Paid After Dad Brought Him to Work?

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By Jon Steingart

A BMW and Mercedes-Benz dealer may owe wages to a man who shadowed his father at work, a federal appeals court ruled ( Axel v. Fields Motorcars of Fla., Inc. , 2017 BL 359041, 11th Cir., No. 16-13829, summary judgment vacated 10/6/17 ).

The Oct. 6 decision sheds some light on how to apply a test for employee status under the Fair Labor Standards Act, the primary federal law that requires employers to pay their personnel. Courts have developed tests because the law defines an employee as someone “employed by an employer.”

Scott Axel may have been treated as a trainee sometimes, and other times as a full-fledged employee in the course of shadowing his father, who worked as an automobile wholesaler, Judge K. Michael Moore wrote for the U.S. Court of Appeals for the Eleventh Circuit.

As a trainee who was there to learn, Axel may not have been entitled to pay if the primary beneficiary of the relationship was Axel and his education, not the dealer and its bottom line. But if Axel’s work displaced that of regular employees, he may have been due pay because that would signal that the dealer was the primary beneficiary of the relationship, Moore said. Judges Ed Carnes and William Pryor joined the opinion.

“An employee can occupy two different spaces as opposed to all or nothing,” Jason Herman, an attorney for Axel, told Bloomberg BNA Oct. 6. “What the circuit court said is you look at the circumstances and look at what they’re doing in different roles.”

Axel’s Work Benefited Father, Dealer Says

Fields Motorcars in its brief urged the court to find that Axel wasn’t an employee in part because there was no evidence to suggest that he displaced regular employees. Rather, Axel learned how to sell automobiles by assisting his father, which benefited the elder Axel, not Fields Motorcars, the dealer said.

The dealer says Axel’s father was his employer because the work he did benefited his father. Axel says Fields Motorcars was his employer because his work benefited the dealer.

More fact-finding is necessary to determine whether Axel may have been an employee of Fields Motorcars of Florida Inc., the appeals court said. It vacated a district court’s determination that Axel wasn’t an employee and sent the case back to the lower court.

“The case has been framed for us by the Eleventh Circuit,” Herman said about how it will proceed in the district court.

Fields Motorcars and a lawyer for the dealer didn’t immediately respond to requests for comment.Gregory Owens and Miguel Bouzas with Bouzas Owens P.A., in Trinity, Fla., also represent Axel.

John E. Duvall, Michelle Tatum, Ashwin Trehan, and David Kalteux with Ford Harrison in Tampa, Fla., represent Fields Motorcars.

To contact the reporter on this story: Jon Steingart in Washington at

To contact the editor responsible for this story: Terence Hyland at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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