Complaint Served

Q., 5.
Gregory ~s Steshenko, Plaintiff

l
3030 Marlo Court
2 Aptos, CA 95003
3
tel. (831)531-2254
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF SANT A CLARA
9
r;.5 t 9CV36049 0
10
GREGORY)(."STESHENKO, Case Nt.
~l Plaintiff,
v.
12 FOOTHILL-DE ANZA COMMUNITY UNLIMITED JUR1SDJCTION
COLLEGE DISTRICT, PATRICIA
BUCHNER, ANITA MUTHYALA- JURY TRIAL DEMANDED
14 K..t\.NDULA,LORRIE RANCK,
NATIVIDAD MEDICAL CENTER, COMPLAINT
15
LINDA DELCAMBRE, LEONILA
16 SHAPIRO, MARGARET HUMBRACHT,
JOHNDOEITHROUGHSANDJANE
Dept.:
DOE 1 THROUGH 5 OF NATIVIDAD
18
MEDICAL CENTER, COMMUNITY Judge:
19 I HOSP IT AL OF~· MONTEREY
PENINSULA, UN SIL LEE, JOHN DOE
20
lTHROUGHSANDJANEDOEl
21 THROUGH 5 OF COMMUNITY
HOS PIT AL OF THE MONTEREY
22
PENINSULA,SPECTRA
23 LABORATORIES, RUBY KAAMINO,
24
JOHN DOE 1 THROUGH 5 AND JANE
DOE l THROUGH 5 OF SPECTRA
25 LABO RA TORIES, ENTITY X, ENTITY
26
y
Defendants.
27
I
!+--------------------'
28
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COMPLAl.'IT
1
2
CASE SUMMARY
3
4 1. Plaintiff, Gregory Steshenko, is a long-term unemployed engineer pursuing professional
5 retraining. For that purpose, he enrolled into the Medical Laboratory Technician (“MLT”)
6
program at De Anza College (“De Anza”), a California community college, completion of which
7
permits to sit for the state MLT license exam.
8
9
2. By law, an MLT program should teach phlebotomy as it is an essential job function of the
10 MLTs. De Anza took a shortcut: for the MLT training, it accepts only the state licensed Certified
11 Phlebotomy Technicians (“CPT”s).
12
3. The De Anza MLT program consists of two parts: the theoretical part is followed by the
13
compulsory so-called “externship”, which is a six-month full-time unpaid work at the external
14
15 clinical laboratories. The notion of an “externship” does not have basis in California law and is
16 not legally required for the MLT program curriculum or for the state licensing.
17
4. De Anza has contracts with the clinical laboratories, according to which the laboratories
18
only provide the floor and the equipment for the student’s practical work. Contrary to Cal.
19
Constitution and these contacts, De Anza completely outsourced the required for graduation
20
21 practical parts of its program to the external clinical laboratories, and claims to have no control
22 over them.
23
5. De Anza claims that the selection for the “externship” is “competitive.” Contrary to the
24
foregoing contracts that specify De Anza’s responsibility to select the students, it is performed
25
by the external laboratories on the basis of the unspecified criteria. The students are required to
26
27 send their professional resumes to the laboratories and then to pass the jobseeker’s interviews
28
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COMPLAINT
with them. The students compete on their age and their prior paid experience as the licensed
1
2 professionals. The goal of the competition is to prove that their unpaid work would be most
3 profitable for the laboratories. This system constitutes unfair and unlawful business practices,
4
contrary to California law.
5
6. The laboratories select the students according to the maximal economic benefit from their
6
7
unpaid service work. The younger students with the paid CPT or clinical laboratory experience
8 are selected, the older students and the students with no such experience are rejected. The
9 students who were not selected within 2 years of completion of the theoretical part lose an
10
opportunity to graduate from the program. The selected students are primarily exploited as the
11
unpaid CPTs, an occupation for which they already licensed. The “externships” are treated as a
12
13 fully unregulated marketplace for the licensed skilled temporary workforce coerced to provide
14 gratuitous services to the private employers as a condition for graduation from the public
15
educational program, which is required for the state MLT licensing.
16
7. A six-month full-time unpaid work assignment demands the significant financial resources.
17
This amounts to the imposition of the wealth requirement for graduation from the community
18
19 college, in violation of California law.
20 8. College defendants sent plaintiff for the jobseeker’s interviews at the three clinical
21
laboratories. The interviewers openly told plaintiff that his age and lack of the prior paid
22
laboratory experience make him unsuitable for the “externships.” Accordingly, defendants
23
rejected plaintiff and the significantly younger candidates with the prior paid laboratory
24
25 experience were sent to the “externships” instead.

26
27
28
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COMPLAINT
9. Following the plaintiff’s complaints, college defendants notified plaintiff that they have no
1
2 other clinical sites for him and that he will not graduate from the program because he failed to
3 secure the “externship.”

4
10. Plaintiff is left unable to graduate from the program, apply for the state MLT license and
5
enter the job market.
6
7
11. Plaintiff brings this action to vindicate his legal rights, and to prevent defendants from
8
repeating their unlawful practices. He alleges nine causes of action: (1) Age Discrimination, (2)
9
Violation of Constitutional Equal Protection Guarantees (Fundamental Interest), (3) Violation of
10
11 Constitutional Due Process Guarantee, (4) Violation of Plaintiff’s Constitutional Right to Free
12 Public Education (Constitutional Tort), (5) Violation of the California Labor Laws, (7)
13
Intentional Infliction of Emotional Distress, (8) Unfair Business Practices, (9) Taxpayer Claim.
14
THE PARTIES
15
16
12. Plaintiff is a competent adult and a natural person residing in the County of Santa Cruz in
17 the State of California. Plaintiff studied at defendant De Anza College.

18 13. Defendant De Anza College (“De Anza”) is a California Community College situated in
19
the County of Santa Clara in the State of California. It is a part of the Foothill-De Anza
20
Community College District (“District”), which, according to De Anza, is the responsible for De
21
22 Anza’s acts and omissions party.
23 14. Defendants Patricia Buchner, Anita Muthyala-Kandula and Lorrie Ranck are the officers
24
of De Anza who are responsible for the unlawful operation of De Anza’s MLT program. They
25
are sued for damages in their personal capacities.
26
15. Collectively, Buchner, Muthyala-Kandula and Ranck are thereafter referred to as
27
28 “individual college defendants.”

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COMPLAINT
16. Collectively, District and individual college defendants are thereafter referred to as
1
2 “college defendants.”
3 17. Natividad Medical Center (“Natividad”) is a clinical agency that is situated in and owned
4
by the County of Monterey in the State of California. It acted as an agent for college defendants.
5
College defendants sent plaintiff there for a jobseekers’ interview required by college defendants
6
7
for an acceptance to De Anza’s course conducted on Natividad’s premises. This was the last
8 course necessary for plaintiff’s graduation from De Anza’s MLT program. Linda Delcambre,
9 Leonila Shapiro, Margaret Humbracht, and the persons sued under the fictitious names of John
10
Doe 1 through 5 and Jane Doe 1 through 5 of Natividad pursuant to Cal. Code Civ. Proc. §474,
11
are the Natividad employees who interviewed plaintiff and / or rejected him from enrollment into
12
13 the course1. They are sued in their individual capacities.
14 18. Collectively, Delcambre, Shapiro, Humbracht, John Doe 1 through 5 and Jane Doe 1
15
through 5 of Natividad are thereafter referred to as “individual Natividad defendants.”
16
19. Collectively, Natividad and individual Natividad defendants are thereafter referred to as
17
“Natividad defendants.”
18
19 20. Community Hospital of the Monterey Peninsula (“CHOMP”) is a clinical agency situated
20 in Monterey County in the State of California that acted as an agent for college defendants.
21
College defendants sent plaintiff there for a jobseekers’ interview required by college defendants
22
for enrollment into De Anza’s course conducted on CHOMP’s premises. This was the last course
23
necessary for plaintiff’s graduation from De Anza’s MLT program. Un Sil Lee, and the persons
24
25
1
26 California law does not authorize a third-party, which is not a part of the California public
education system, to reject a student from a college course. With regards to the students’
27 enrollment and graduation, a third party may act only as an agent of the college. An agency is
28 created by a mere ratification of the third-party’s decision. See discussion, infra.
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COMPLAINT
sued under the fictitious names of John Doe 1 through 5 and Jane Doe 1 through 5 of CHOMP
1
2 pursuant to Cal. Code Civ. Proc. §474, are the CHOMP employees who interviewed plaintiff and
3 / or rejected him from enrollment into the course. See Footnote 1. They are sued in their
4
individual capacities.
5
21. Collectively, Lee, John Doe 1 through 5 and Jane Doe 1 through 5 of CHOMP are
6
7
thereafter referred to as “individual CHOMP defendants.”
8 22. Collectively, CHOMP and individual CHOMP defendants are thereafter referred to as
9 “CHOMP defendants.”
10
23. Spectra Laboratories (“Spectra”) is a clinical agency situated in Santa Clara County in the
11
State of California that acted as an agent for college defendants. College defendants sent Plaintiff
12
13 there by for a jobseekers’ interview required by college defendants for enrollment into De
14 Anza’s course conducted on Spectra’s premises. This was the last course necessary for plaintiff’s
15
graduation from De Anza’s MLT program. Ruby Kaamino, and the persons sued under the
16
fictitious names of John Doe 1 through 5 and Jane Doe 1 through 5 of Spectra pursuant to Cal.
17
Code Civ. Proc. §474, are the Spectra employees who interviewed plaintiff and/or rejected him
18
19 from enrollment into the course. See Footnote 1. They are sued in their individual capacities.
20 24. Collectively, Kaamino, John Doe 1 through 5 and Jane Doe 1 through 5 of Spectra are
21
thereafter referred to as “individual Spectra defendants.”
22
25. Collectively, Spectra and individual Spectra defendants are thereafter referred to as
23
“Spectra defendants.”
24
25 26. Collectively, Natividad, CHOMP and Spectra are thereafter referred to as “clinical
26 laboratories.”
27
28
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COMPLAINT
27. Collectively, Natividad defendants, CHOMP defendants and Spectra defendants are
1
2 thereafter referred to as “clinical laboratory defendants.”
3
28. Defendant sued under the fictitious name Entity X pursuant to Cal. Code Civ. Proc. §474,
4
5 is a California governmental agency that negligently approved the non-compliant De Anza MLT
6 program and its affiliates.

7
29. Defendant sued under the fictitious name Entity Y pursuant to Cal. Code Civ. Proc. §474,
8
is a higher education accreditation agency doing business in California that negligently
9
accredited the non-compliant De Anza MLT program.
10
11 30. Entity X and Entity Y are being sued for equitable relief only.
12
ALLEGATIONS OF JURISDICTION, TIMELINESS AND EXHAUSTION OF
13
ADMINISTRATIVE REMEDIES
14
31. District is located in the County of Santa Clara, and it is the principal place of business of
15
16 all individual college defendants. Spectra is located in the County of Santa Clara, and it is the
17 principal place of business of all individual Spectra defendants. Spectra defendants acted as the
18 agents of District.
19
32. Natividad defendants and CHOMP defendants acted as the agents of District.
20
33. On October 29, 2019, pursuant to Cal. Govt. Code §910 et seq., Plaintiff submitted the
21
22 written claims against District and Natividad (Monterey County). District rejected the claim on
23 November 13, 2019 and Natividad (Monterey County) did the same on November 22, 2019.
24
34. On October 18, 2019, plaintiff filed a complaint against college defendants with
25
California Department of Fair Employment and Housing (“DFEH”), for defendants’ unlawful
26
practices that facilitate illegal discrimination in access to the work training programs.
27
28
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COMPLAINT
35. Plaintiff discovered the liabilities of clinical laboratory defendants for illegal
1
2 discrimination on September 26, 2019. Thus, on October 18, 2019, pursuant to Gov. Code
3 §12960(d)(3), he filed complaints against the foregoing defendants with DFEH for illegal
4
discrimination in access to the work training programs.
5
36. On December 2, 2019, DFEH notified plaintiff that while DFEH does accept his
6
7
complaints and has jurisdiction over them, because of its limited resources, DFEH would be
8 unable to investigate them in a timely manner. Therefore, DFEH issued the right-to-sue letters
9 enabling this lawsuit.
10
37. Administrative remedies had been exhausted. The venue is proper and this lawsuit is
11
timely.
12
13 FACTUAL ALLEGATIONS
14 38. Plaintiff is a 58 year old long-term unemployed Electronic Engineer pursuing professional
15
re-training. For that purpose, in 2016 Plaintiff completed a Phlebotomy training program and
16
obtained a phlebotomist state license, the necessary pre-requisite for an admission to the MLT
17
program. In the Fall quarter of 2016, Plaintiff enrolled in De Anza’s MLT program. The
18
19 graduates of the program are eligible to sit for the state MLT license exam.
20 39. De Anza is the monopolist in the MLT training in the greater San Francisco Bay area. The
21
nearest other MLT program is located in Folsom, California.
22
40. After Plaintiff started his studies at the program, defendant Buchner notified him that
23
Plaintiff must complete an “externship” at a clinical laboratory in order to graduate from the
24
25 program.
26 41. Plaintiff was not notified about that requirement prior to his enrollment into the program.
27
28
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COMPLAINT
42. The “externship” is a compulsory unpaid 6-months full-time labor arrangement intended
1
2 to economically benefit the associated with college defendants clinical laboratories and De Anza.
3 At some laboratories, the students are expected to primarily perform the phlebotomy duties for
4
which they are already licensed by the state, the other laboratories are satisfied by the cost
5
savings derived from the students’ performance of the MLT duties.
6
7
43. A completion of any kind of an “externship” is not required for the state MLT license.
8 The “externship” is college defendants’ internal design intended to benefit defendants.

9 44. According to the De Anza’s contracts with the clinical laboratories, a sample of which is
10
presented in Exhibit A, these agencies have no right to select the students. The students should
11
be assigned to the agencies by the college. The agencies provide only the floor and the
12
13 equipment, De Anza’s staff conducts the training.
14 45. Yet, such a contractual procedure is never practiced. Instead, college defendants require
15
the students to submit their resumes to the clinical laboratories, and then send them to the
16
employment interviews with these laboratories.
17
46. The conditions of the “externships” specified by college defendants in Exhibit B attached
18
19 hereto are as follows:
20 (a) Placement for the “externships” is a “competitive process” completely managed by

21
the clinical laboratories; the students must compete on proving that their unpaid
22
work would bring the greatest economic benefit to the laboratories.
23
(b) The students’ graduation from the program depends on the voluntary participation of
24
25 the clinical laboratories in De Anza’s “externship” program;

26 (c) The students are not guaranteed placement to an “externship” and, therefore, the
27
graduation from De Anza’s MLT program;
28
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COMPLAINT
(d) The burden is upon the students to find a clinical site willing to accept them;
1
2 (e) Unless the students secure an “externship” within 2 years after completion of the
3 theoretical part of the training, they lose their eligibility to compete for “externships”
4
and thus to graduate from the program;
5
(f) The only responsibility college defendants have is to provide the students with a list
6
7
of the clinical agencies that might accept them for an “externship;”
8 (g) College defendants are entitled to economic benefit from the unpaid labor of the
9 students at the clinical laboratories;
10
(e) The school has no control over the “externship” sites.
11
47. College defendants specified no criteria, rules and regulations for their “competitive
12
13 process.” The students are selected by the clinical laboratories primarily according to their age
14 and the economic benefit to the laboratories from their unpaid service work. The older students,
15
as well as those with no paid phlebotomy and clinical laboratory experience are easily
16
outcompeted and permanently precluded from the graduation.
17
48. Defendant Buchner sent Plaintiff for his first employment interview to Natividad. That
18
19 interview occurred on June 8, 2017. The interviewers, acting on behalf of De Anza, stated to
20 Plaintiff that they are interested in accepting for their “externship” an experienced phlebotomist
21
who would be performing the unpaid phlebotomy functions at Natividad. They also claimed that
22
since their program is primarily intended to train a replacement for the expecting to retire baby
23
boomers, the very same age category to which Plaintiff belongs, Plaintiff likely would not be a
24
25 good fit for it.

26 49. Plaintiff reported the events at the interview to Buchner. College defendants failed to take
27
any corrective action.
28
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COMPLAINT
50. Natividad defendants transmitted to college defendants their rejection of plaintiff because
1
2 of his protected characteristics. College defendants ratified Natividad defendants’ decision and
3 refused to assign plaintiff to the clinical site. A significantly younger student with the paid
4
phlebotomy experience was assigned instead.
5
51. Phlebotomy is not taught at De Anza’s MLT Program. It is a pre-requisite for the
6
7
program, and the students are expected to enter the program with the state issued phlebotomy
8 license. College defendants and their clinical confederates are interested in exploitation to the
9 utmost of the students’ phlebotomy skills; therefore they highly favor the students who have a
10
paid practice as phlebotomists. The clinical laboratories also use the “externship” to select the
11
prospective permanent employees and are not willing to train those whom they perceive as the
12
13 retirement material, thus the age becomes a severe impediment for enrollment into the
14 “externship.”
15
52. The second employment interview, to which Buchner sent plaintiff, occurred at the
16
CHOMP on June 15, 2017. Again, the interviewer, acting on behalf of De Anza, stated to
17
Plaintiff that for their “externship” they are seeking an experienced phlebotomist who would be
18
19 performing the unpaid phlebotomy service functions at the hospital. According to the
20 interviewer, as the hospital strives to train a replacement for the baby boomers that near the
21
retirement, Plaintiff might not be a good fit for the program because of his age.
22
53. Plaintiff reported the events at the interview to Buchner. College defendants failed to take
23
any corrective action.
24
25 54. CHOMP defendants transmitted to college defendants their rejection of plaintiff because
26 of his protected characteristics. College defendants ratified CHOMP defendants’ decision and
27
28
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COMPLAINT
refused to assign plaintiff to the clinical site. A significantly younger student with the paid
1
2 phlebotomy experience was assigned instead.
3 55. At that point, plaintiff complained to college defendants about the unlawful nature of their
4
“externship” graduation requirement and about the age discrimination he was subjected to.
5
Plaintiff requested an alternative coursework that would enable his graduation from the program.
6
7
Plaintiff received no answer to his complaint and request.
8 56. After numerous unanswered attempts to communicate with college defendants2, on

9 August 10, 2017, pursuant to Cal. Govt. Code §910 et seq., plaintiff filed an administrative claim
10
with De Anza for age discrimination and unlawful operation of the MLT program. The college
11
failed to respond to it.
12
13 57. On August 15, 2017 plaintiff received email from defendant Ranck, presented in Exhibit
14 B, reiterating the foregoing defendants’ conditions of the “externships.” According to Ranck, as

15
plaintiff failed to secure such an “externship”, he will not graduate.
16
58. The third employment interview, to which Buchner sent plaintiff, occurred on August 28,
17
2017 at Spectra. The interviewer confirmed to plaintiff that the “externship” is a cost-saving
18
19 measure for the agency, as it gets gratis service work from the MLT students capable of running
20 the medical testing machines. During the interview, the Spectra’s medical director stated that
21
plaintiff does not look like someone who is interviewing for an MLT position, that there should
22
be some mistake and plaintiff should be interviewing for a senior Information Technology (“IT”)
23
position instead. Plaintiff assured the director that he is indeed being interviewed for an MLT
24
25 training position. The director met plaintiff’s words with a visible sense of disbelief, and stated
26
2
27 Plaintiff sent his first email to defendants on June 30, 2017. His attempts to contact Defendants
28 continued till August 8, 2017.

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COMPLAINT
to plaintiff: “Look around, does anyone here look like you?” Plaintiff looked around, and indeed
1
2 saw that the laboratory was exclusively staffed with the very young persons.
3 59. Spectra defendants transmitted to college defendants their rejection of plaintiff because of
4
his protected characteristics. College defendants ratified Spectra defendants’ decision to reject
5
and refused to assign plaintiff to the clinical site. A significantly younger student with the paid
6
7
phlebotomy experience was assigned instead.
8 60. On September 18, 2017, plaintiff further complained to Buchner about the age
9 discrimination he encountered during the Spectra interview and expressed his doubt that he
10
would ever be able to secure an “externship” and graduate from the program because of it. In
11
response, Buchner informed plaintiff that she has “no other clinical sites taking students.”
12
13 College defendants failed to take any corrective action.
14 61. Plaintiff’s training was sponsored by the County of Santa Cruz. As a result of college
15
defendants’ notification that plaintiff cannot graduate from the program in a timely manner,
16
plaintiff lost that sponsorship and no longer has means to subsist through a 6-month unpaid
17
work.
18
19 62. Thus, because of his age and lack of the exploitable paid experience in phlebotomy,
20 plaintiff is unable to graduate from the De Anza College MLT program, apply for the state MLT
21
license and enter the job market.
22
23 LEGAL FRAMEWORK FOR OPERATION OF MLT PROGRAMS IN CALIFORNIA
24 Requirements for MLT Training Programs under California Law

25 63. Pursuant to 17 CCR § 1032.5 and Cal. Bus. & Prof. Code § 1260.3, the only educational
26
requirement for the MLT licensing is the general college education in physical/biological science
27
28
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COMPLAINT
and “[g]raduation from a[n] [approved or accredited] medical laboratory technician training
1
2 program[…].”
3 64. The curriculum of the MLT training programs is regulated by state law. An MLT program
4
“includes at least 26 weeks, consisting of at least 1040 hours, of instruction and practical
5
experience in moderate complexity [clinical laboratory] testing.” 17 CCR § 1035.3 (b)(2).
6
7
65. “’Practical experience’ means hands-on, direct work experience in clinical laboratory
8 science and phlebotomy techniques on real patients in a [certified] clinical laboratory […], using
9 equipment, instruments, kits and materials routinely found in clinical laboratories […].” 17 CCR
10
§ 1029.134.
11
66. In other words, an MLT program includes the didactic part and the direct work part,
12
13 responsibility for which lies solely with the MLT program.
14 Methods of Lawful Operation of the Direct Work Part of an MLT Program

15
67. No part of a community college educational program could be outsourced to an entity
16
outside of the public education system. Cal. Constitution, Article IX, §§ 6 and 8.
17
68. There are three kinds of proper operation of the direct work part of an MLT program:
18
19 (a) An MLT program arranges for a space at a clinical laboratory, where under the
20 direction of the qualified and properly licensed school faculty the students apply the
21
theoretical knowledge received at the program to the laboratory samples of the real
22
patients;
23
(b) An MLT program, jointly with the clinical laboratories, establishes an apprenticeship
24
25 training program pursuant to Cal. Labor Code § 3092;

26 (c) The Board of Governors of California Community Colleges establishes an MLT
27
internship program pursuant to Cal. Ed. Code § 79146.
28
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COMPLAINT
California Apprenticeship Programs
1
2 69. Apprenticeable occupation requires application of professional skills that are best learned
3 through on-the-job training together with related / supplemental instruction. 8 CCR § 205(c).
4
This includes a wide variety of occupations. Cal. Ed. Code § 79140 (d).
5
70. An apprenticeship program is a comprehensive plan containing standards, rules,
6
policies, regulations and course outlines for training in apprenticeable occupation. 8 CCR
7
8 §205(e). An apprenticeship program is administrated and operated by the program sponsor
9 (usually the employer). 8 CCR §§ 205(g) and 218.

10
71. Apprenticeships are governed by 8 CCR §§ 200-295, Cal. Labor Code §§ 3070 – 3098,
11
Cal. Ed. Code §§ 8150-8155 and §§ 79140-79149.6.
12
72. Cal. Department of Industrial Relations oversees apprenticeships and approves the
13
14 program standards that meticulously specify all material condition of the program. 8 CCR §§
15 205(f), 212 and 212.2.

16
73. All conditions of a program must be approved by the state, and without it the program
17
cannot be legally conducted. 8 CCR § 212.2.
18
19
74. The Chancellor of California Community Colleges could participate in development of
20 apprenticeships (Cal. Ed. Code § 79148), but a community college cannot establish an
21 apprenticeship other than jointly with the program sponsor. Cal. Labor Code § 3092.
22
75. The only responsibility of the college in that arrangement is the related / supplemental
23
instruction. Cal. Labor Code § 3074, 8 CCR § 205(h).
24
25 76. Apprentices are entitled to wages (at least, the local minimum wage) and benefits. 8 CCR
26 §§ 208(a) and 208(d). Their work should match their training objectives. 8 CCR § 210.
27
77. Apprenticeship selection procedures should be lucid. 8 CCR § 215.
28
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COMPLAINT
California Internship Programs
1
2 78. An internship is a planned series of educational training activities, paid or unpaid, in
3 a particular occupational field. Cal. Ed. Code § 79144(c).

4
79. The Board of Governors of California Community Colleges is authorized to establish
5
internships for the occupations not covered by the apprenticeships. Cal. Ed. Code § 79146.
6
80. Presently, the only authorized community college internship is that for the students
7
8 aspiring to become the community college faculty members. 5 CCR §§ 53500 - 53502.
9 Other Training Programs

10
81. The other training programs involving work of the trainees must be approved by the
11
Division of Labor Standard Enforcement of Cal. Department of Industrial Relations. Otherwise,
12
they constitute employment not exempts from the minimum wage requirement. See Exhibit D
13
14 attached hereto.
15 MLT Students’ Service Work at the Clinical Laboratories Presumably Constitutes

Employment
16
17 82. "Any person rendering service for another, other than as an independent contractor […] is
18 presumed to be an employee." Cal. Labor Code § 3357.

19
83. An employee must be paid at least the minimum wage established for the workplace
20
location. Cal. Labor Code § 1182.12; CA Minimum Wage Order (MW-2017).
21
Cal. Department of Industrial Relations Opined That the Certain Students’ Work Does
22
Not Constitute Employment
23
84. The Division of the Labor Standard Enforcement (“DLSE”) of the Cal. Department of
24
Industrial Relations expressed an opinion, presented in Exhibit C, on an internship program
25
26 administered by a private employer. DLSE uses a six-factor test for the trainee / intern
27
28
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COMPLAINT
employment exemption. For the reasons explained below, the six-prong DSLE test fails in the
1
2 instant case.
3 LEGAL FRAMEWORK FOR AN AGENCY IN CALIFORNIA

4
85. An agency relationship is governed by Cal. Civ. Code §§ 2295 - 2300, 2304 – 2326, 2330
5
– 2339, 2342 - 2345 and 2349-2351.
6
7
86. “An agent is one who represents another, called the principal, in dealings with third
8 persons. Such representation is called agency.” Cal. Civ. Code § 2295.

9
Authority and Liabilities of the Principal and the Agent
10
87. “An agent has such authority as the principal, actually or ostensibly, confers upon him.
11
12 Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by
13 want of ordinary care, allows the agent to believe himself to possess.” Cal. Civ. Code §§ 2315 -
14
2316. The principal accrues all the rights and liabilities accrued by its agent in the course of the
15
agency. Cal. Civ. Code §§ 2330. The principal is bound by the acts of its agent. Cal. Civ. Code
16
17
§§ 2334. “When an agent exceeds his authority, his principal is bound by his authorized acts so
18 far only as they can be plainly separated from those which are unauthorized.” Cal. Civ. Code §
19 2333. A principal is responsible to third persons for the negligent and other wrongful acts of his
20
agent in the course of the agency if they were authorized or ratified. Cal. Civ. Code § 2338 –
21
2339. An agent is responsible to third persons as a principal for his acts in the course of his
22
23 agency when his acts are wrongful in their nature. Cal. Civ. Code § 2343 (3).
24 88. The employer and its employee are jointly liable for the harm caused.
25
An agent is subject to liability to a third party harmed by the agent’s tortious
26 conduct. Unless an applicable statute provides otherwise, an actor remains subject to
liability although the actor acts as an agent or an employee, with actual or apparent
27 authority, or within the scope of employment.
28
- 17-
COMPLAINT
American Law Institute's Restatement of the Law of Agency, Third Ed. (2006) § 7.01
1
2 Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts or
3 omissions by their employees in the course of employment. The respondeat superior liability
4
occurs where an employee does an authorized act in an unauthorized way. Employers may also
5
be held vicariously liable under the common law doctrine of qui facit per alium facit per se.
6
Creation of an Agency through Authorization or Ratification
7
8 89. “An agency may be created […] by a precedent authorization or a subsequent
9 ratification.” Cal. Civ. Code §2307. An oral authorization is sufficient, except where by law the
10
authority to enter into a contract must be in writing. Cal. Civ. Code §2309.
11
Actual and Ostensible Agency
12
13
90. An agency is actual when the principal employs the agent; it is ostensible “when the
14 principal intentionally, or by want of ordinary care, causes a third person to believe another to be
15 his agent who is not really employed by him.” Cal. Civ. Code §§ 2299-2300.
16
PECULIARITIES OF THE DE ANZA MLT PROGRAM
17
91. De Anza MLT Program does not teach phlebotomy, a required subject in the MLT
18
19 training. A state phlebotomy technician’s license is a pre-requisite to the program.
20 92. Upon acceptance to the program, the students must complete the theoretical part of the
21
training. On average, it takes a year and a half.
22
93. After that, De Anza requires the students to secure a so-called “externship” at one of the
23
external (mostly private) clinical laboratories.
24
25 94. An “externship” is a half-a-year unpaid full-time on-the-job training program that De
26 Anza requires for graduation from its MLT program.

27
28
- 18-
COMPLAINT
95. De Anza has contracts with the clinical laboratories, according to which the laboratories
1
2 provide the MLT program with the floor and equipment. An example of such a contract is
3 presented in Exhibit B. Pursuant to it, De Anza is responsible for the selection of the students
4
and provision of training.
5
96. In reality, De Anza requires the students to submit their resumes and cover letters to the
6
7
clinical laboratories, and then sends them to these laboratories for the jobseeker’s interviews. De
8 Anza claims that it empowered the laboratories on the basis of the employment interviews to
9 accept or reject the students’ enrollment into the De Anza’s academic courses conducted on their
10
premises. See Exhibit B. While such an empowerment is professed by college defendants, it is
11
not contained in any contracts between De Anza and the clinical agencies, and it is not
12
13 authorized by Cal. education law.
14 97. In multiple conversations with plaintiff, defendant Buchner referred to clinical laboratory
15
defendants as to “our clinical faculty.” Plaintiff would not interview with clinical laboratory
16
defendants unless college defendants represented to him that clinical laboratory defendants are
17
acting on behalf of college defendants. By law, only college defendants have prerogative to
18
19 regulate the student enrollment. Clinical laboratory defendants could acquire such power only as
20 the agents of college defendants. College defendants automatically ratified the enrollment
21
decisions of clinical laboratory defendants. This behavior of defendants created at least the
22
ostensible agency pursuant to Cal. Civ. Code §§2307, 2309, 2299-2300.
23
98. The students must compete for the openings. Defendants envision some kind of
24
25 gladiatorial fight between the students for graduation and an access to the job market.
26
27
28
- 19-
COMPLAINT
99. The de facto chief selection criteria are an achievement of the maximal economic benefit
1
2 to the laboratories from the unpaid students’ service work and screening the students for the
3 further permanent employment.

4
100. The laboratories select those students who have the significant paid experience as
5
phlebotomists and laboratory workers. In the course of the “externships”, they are primarily
6
7
employed as the unpaid phlebotomists. They work under the supervision of the laboratory
8 personnel and are exploited as the unpaid skilled licensed workforce.

9 101. The students with no paid phlebotomy and clinical laboratory experience and the older
10
students are routinely rejected. Inevitably, the less exploitable students and the older students are
11
permanently outcompeted irrespectively of their academic performance.
12
13 102. If a student is unable to secure an “externship” within two years following his
14 completion of the theoretical training, he is declared unfit for graduation and de facto dismissed
15
from the MLT program.
16
APPLICATION OF LAW TO THE DE ANZA MLT PROGRAM
17
College Defendants Violated State Equal Protection Guarantees
18
19 103. Access to education is a “uniquely fundamental personal interest in California” and
20 belongs to each individual student. Butt v. State of California (1992) 4 Cal. 4th 668, 681. The
21
California Supreme Court has repeatedly held that all California residents possess the
22
constitutional right to “equal access to a public education system that will teach them the skills
23
they need to succeed as productive members of modern society.” O’Connell v. Superior Court
24
25 (Valenzuela) (2006) 141 Cal. App. 4th 1452, 1482; see also Hartzell v. Connell, 35 Cal. 3d 899,
26 906-09 (1984); Serrano v. Priest (1971) 5 Cal. 3d 584, 608-09 (1971) (“Serrano I”); (1924).
27
28
- 20-
COMPLAINT
104. “[T]he right to an education in our public schools is a fundamental interest which cannot
1
2 be conditioned on wealth […].” Serrano I, supra, Cal. 3d 584, 608-09 (1971). The equal
3 protection clause of California Constitution, Articles I, § 7(a) and IV, § 16(a) guarantees the right
4
to receive educational opportunities in the public education system regardless of wealth.
5
105. College defendants established an “externship,” which is a six-month unpaid full-time
6
7
service work at the external clinical agencies, as a condition for graduation from the De Anza
8 MLT program. An adult, emancipated student must be considerably wealthy in order to support
9 himself through such lengthy unpaid full-time work. This condition denies the indigent plaintiff,
10
unable to subsist through the half-a-year of gratuitous full-time work, his right to receive
11
educational opportunity regardless of wealth.
12
13
College Defendants Unconstitutionally Outsourced Parts of De Anza MLT Program
14 Outside of Public Education System and Made Them Not Free
15 106. “The provisions of this Constitution are mandatory and prohibitory, unless by express
16
words they are declared to be otherwise.” Cal. Constitution, Article I, §26. All branches of
17
government are required to comply with constitutional directions. Mosk v. Superior Court (1979)
18
25 Cal.3d 474, 493, 159 Cal.Rptr. 494, 601 P.2d 1030, fn. 17; Bauer–Schweitzer Malting Co. v.
19
20 City and County of San Francisco (1973) 8 Cal.3d 942, 946, 106 Cal.Rptr. 643, 506 P.2d 1019;
21 Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 8, 95 Cal.Rptr. 329, 485 P.2d 529. In an absence of
22
the express language to the contrary, the constitutional provisions are self-executing. Id. “Every
23
constitutional provision is self-executing to this extent, that everything done in violation of it is
24
25 void.” Oakland Paving Co. v. Hilton (1886) 69 Cal. 479, 484, 11 P. 3; Sail'er Inn, supra, 5
26 Cal.3d at p. 8, 95 Cal.Rptr. 329, 485 P.2d 529.

27
28
- 21-
COMPLAINT
107. Pursuant to the following self-executing constitutional provisions, a publically funded
1
2 California community college cannot outsource any part of its program to an entity outside of the
3 public education system, and all its parts must be conducted under the exclusive control of the
4
college officers.
5
The Public School System shall include all […] state colleges […] and, in addition, the
6 school districts and the other agencies authorized to maintain them. No […] college or
7
any other part of the Public School System shall be, directly or indirectly, transferred
from the Public School System or placed under the jurisdiction of any authority other
8 than one included within the Public School System.
9 Cal. Constitution, Article IX, §6.
10
No public money shall ever be appropriated for the support of […] any school not under the
11 exclusive control of the officers of the public schools[…].
12 Cal. Constitution, Article IX, §8.

13 108. The self-executing provision of California Constitution, Article IX, §5 guarantees the
14
right to free public education. “[…] [E]ducational activities carried on by public school districts,
15
extra-curricular as well as curricular, must be without cost to the students who participate in such
16
17 activities.” Hartzell v. Connell, 35 Cal. 3d 899 (1984).
18 109. The State bears the “ultimate responsibility for public education [that] cannot be
19
delegated to any other entity.” Butt v. State of California (1992) 4 Cal. 4th at 681 (citing Hall v.
20
City of Taft (1956) 47 Cal. 2d 177, 180-81, and Piper v. Big Pine Sch. Dist.of Invo City (1924)
21
193 Cal. 3d at 669. “The purpose of education is […] to equip [students] with the substantive
22
23 knowledge and skills they need to succeed in life.” O’Connell v. Superior Court (2006) 141 Cal.
24 App. 4th at 1478. “Education […] supports each and every […] value of a democratic society—
25
participation, communication, and social mobility, to name but a few. [citation omitted]”
26
Serrano v. Priest (1971) 5 Cal. 3d (“Serrano I”) at 607.
27
28
- 22-
COMPLAINT
110. De Anza is a public institution, a California community college. An “externship” is
1
2 purportedly a part of its academic program required for graduation. The students register for it as
3 for any other academic course. It is funded by public money.

4
111. In violation of the foregoing self-executing constitutional provisions, De Anza
5
outsourced a part of its academic program to the external clinical laboratories, the entities outside
6
7
of the public instruction system, which now exercise jurisdiction over it. College defendants
8 claim that they no longer have control over the outsourced part of the program. See discussion,
9 supra.
10
112. Any outsourcing of the courses taught at California public education system requires the
11
statutory authorization. For example, Cal. Ed. Code § 41913 – 41919 permits the districts to use
12
13 the private driving schools to train the students. Such an authorization is absent here. De Anza’s
14 outsourcing of its MLT program is unlawful.

15
113. College defendants are the only entity authorized by law to exercise control over their
16
academic courses, including enrollment into them. Their purported inability to control the
17
outsourced part of the MLT program is caused by their voluntary declination to apply the
18
19 authority legally vested in them. Clinical laboratory defendants, to whom they ostensibly
20 relinquished their authority, are not de jure independent, even if college defendants profess them
21
as such. Delegation to clinical laboratory defendants of the authority solely ascribed to the
22
educational institutions and ratification of their actions constitutes creation of the agency. See
23
discussion, supra. College defendants are liable for clinical laboratory defendants’ actions.
24
25 114. Defendants use the unconstitutional arrangement for the economic exploitation of the
26 students. See discussion, supra. The students must pay for their ability to graduate from De Anza
27
28
- 23-
COMPLAINT
MLT program by their gratuitous service work for clinical laboratory defendants. In other words,
1
2 the students barter their skilled labor for graduation.
3 115. As a result of defendants’ unconstitutional action, plaintiff is unable to graduate from the
4
program, apply for the state MLT license and enter the job market. Plaintiff suffered damages,
5
including the lost earnings.
6
7
116. “’A tort requires that a plaintiff have a legally protected right which, when invaded by
8 the defendant, is compensable by money damages. The civil remedy for constitutional torts is a
9 direct claim by the victim of the official wrongdoing to secure compensation for the denial of his
10
constitutional rights.’ [Citation omitted].)” Fenton v. Groveland Community Services Dist.
11
(1982) 135 Cal.App.3d 803, 185 Cal.Rptr. 758; see Bivens v. Six Unknown Fed. Narcotics
12
13 Agents (1971) 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619; Gay Law Students Assn. v. Pacific
14 Tel. & Tel. Co. (1979) 24 Cal.3d 458, 474–475, 156 Cal.Rptr. 14, 595 P.2d 592; Stalnaker v.
15
Boeing Co. (1986) 186 Cal.App.3d 1291, 1302–1308, 231 Cal.Rptr. 323.
16
117. Cal. Gov. Code § 815 defenses are not applicable to the self-executing constitutional
17
provisions. Fenton, supra, 135 Cal.App.3d 803-807.
18
19 Individual College Defendants Are Not Immune Under Gov. Code §820.2
20 118. Gov. Code §820.2 creates immunity for basic policy or planning decisions entrusted to
21
the public agency (discretionary acts), yet it does not apply to operational decisions or decisions
22
on implementation of agency policies (ministerial acts). Caldwell v. Montoya (1995) 10 Cal.4th
23
10 Cal.4th 972, 979-989.
24
25 119. As per the foregoing discussion, the California Community Colleges and the MLT
26 programs are strictly regulated. The discretionary acts are only those that are authorized as such
27
by the statutes. The arbitrary acts are neither discretionary nor ministerial.
28
- 24-
COMPLAINT
120. No statutes authorize college defendants to (i) outsource a part of their program to the
1
2 third parties, (ii) establish the unregulated job training programs at the third parties that do not
3 follow any legitimate job training pathway, (iii) ignore and act against their contracts with the
4
third parties, (iv) permit the third parties to select the already admitted to the program students,
5
particularly on the basis of age and the economic benefit from their gratuitous service work, (v)
6
7
permit the third party exploitation of the students, (vi) arbitrarily deny plaintiff an access to the
8 course required for graduation.

9 121. Here, college defendants were not exercising any discretionary functions and were acting
10
arbitrarily, hence Cal. Gov. Code § 820.2 is inapposite. Fenton, supra, 135 Cal.App.3d, citing
11
Johnson v. State of California (1968) 69 Cal.2d 782, 794–795, fn. 8, 447 P.2d 352.
12
13 California Law Doesn’t Authorize “Externships” Operated by Community Colleges
14 122. There is no legal basis for the notion of an “externship.”

15 123. In view of the highly eccentric manner De Anza operates it “externships” in, on
16
numerous occasions plaintiff and other students fruitlessly asked college defendants to explain
17
the legal status of their program.
18
19 124. If De Anza asserts that its “externship” is some kind of educational program, then it is
20 illegal because no part of public instruction could be outsourced to any entities not belonging to
21
the public school system without an explicit authorization by the legislature. In case of such an
22
authorization, the public education officers must maintain the exclusive control over the
23
outsourced parts, otherwise the outsourcing becomes unconstitutional and, therefore, void.
24
25 125. The De Anza’s “externship” is an on-the-job training squarely fitting the definition of
26 training for an apprenticeable occupation pursuant to 8 CCR §205(c). Then, the clinical
27
28
- 25-
COMPLAINT
laboratories would act as the apprenticeship sponsors, while De Anza would provide the related
1
2 and supplemental instruction.
3 126. As shown above, De Anza Community College is not authorized to establish an

4
apprenticeship.
5
127. If the associated with De Anza clinical laboratories are operating apprenticeships, they
6
7
are unlawful because they are not registered and not approved by the Cal. Department of
8 Industrial Relations.
9 128. As shown above, De Anza is not authorized to establish an MLT internship, hence the
10
“externship” as not a legal internship.
11
129. If the clinical laboratories operate internships, then the above discussed DLSE
12
13 exemption test fails in its main parts and the students sent there by De Anza MLT program are
14 the employees of the laboratories that should be paid.

15
130. The first test is as follows. “The training, even though it includes actual operation of the
16
employer's facilities, is similar to that which is given in a vocational school.” Exhibit C, page 8.
17
De Anza MLT program does not teach its MLT students phlebotomy. The students are already
18
19 state licensed as phlebotomists and do not need vocational training in that occupation. Even
20 when the students are used by clinical laboratory defendants as MLTs, their six-month full-time
21
work is highly excessive for the training purposes. The student’s employment as phlebotomists
22
or MLTs fails the foregoing exemption test.
23
131. The second test is whether “[t]he training is for the benefit of the trainees or students.”
24
25 Exhibit C, page 9. While there would be some gain in the phlebotomist’s professional
26 experience; it does not exceed the usual benefit of professional development inherent in any paid
27
work performed by the licensed professionals. To satisfy the MLT licensing requirements, the
28
- 26-
COMPLAINT
students need 1020 hours (six-month) of instruction and practical work. See discussion, supra.
1
2 College defendants require that prior to the “externship” the students complete the instructional
3 part of the program, which takes at least 9 month on the full-time basis. The total duration of the
4
program on the full-time basis is at least 15 month, two and a half times greater than required for
5
licensing. Hence, the students’ six-month full-time work as the licensed phlebotomists or MLTs
6
7
primarily benefits their clinical laboratory employers, and the second test fails.
8
The Employment Relationship Exists Between Clinical Laboratory Defendants and the
9 Student Workers
10
132. Natividad defendants and CHOMP defendants use the De Anza’s students as the
11
licensed phlebotomists. For the purposes of achieving the labor cost savings, Spectra requires the
12
students to perform the routine full-time MLT work for 6 month. Thus, they are the employers
13
14 of the students liable for the wages and compliance with other workplace conditions prescribed
15 by law.
16
California Community Colleges and Their Agents are Prohibited from Age Discrimination
17 in Access to Training Programs and May be Sued for Damages and Equitable Relief
18 133. California law treats public schooling as a governmental function. “The Legislature shall
19
provide for a system of common schools.” Cal. Constitution, Article IX, § 5. “Since its
20
admission to the Union, California has assumed specific responsibility for a statewide public
21
education system open on equal terms to all.” Butt v. State (1992) 842 P.2d 1240, 1247.
22
23 134. The community college system is funded by the state. Cal. Constitution, Article XVI, §
24 8(a) (“From all state revenues there shall first be set apart the moneys to be applied by the State
25
for support of the public school system and public institutions of higher education.”); see also
26
Cal. Educ. Code §§ 2575, 41600–41610 and 42238–42251; Campaign for Quality Educ. v. State
27
28
(2016) 209 Cal. Rptr. 3d 888, 923.
- 27-
COMPLAINT
135. As the California community colleges administered and funded by the state, age
1
2 discrimination at them is illegal.
3 No person in the State of California shall, on the basis of […] age […] be unlawfully
denied full and equal access to the benefits of, or be unlawfully subjected to
4
discrimination under, any program or activity that is conducted, operated, or administered
5 by the state or by any state agency, is funded directly by the state, or receives any
financial assistance from the state.
6
Cal. Gov. Code § 11135.
7
8 This article […] may be enforced by a civil action for equitable relief, which shall be
independent of any other rights and remedies.
9
Cal. Gov. Code § 11139.
10
136. Cal. Ed. Code directly forbids the community colleges to discriminate on the basis of
11
12 age.
13 The governing board of a community college district shall have the primary responsibility
14
for ensuring that community college district programs and activities are free from
discrimination based on age […].
15
Cal. Ed. Code § 66292.
16
137. Following the 90-day moratorium3 after filing a discrimination complaint with the
17
18 governing board of the community college, the victim of age discrimination may file an
19 action for damages. Cal. Ed. Code §§ 66292.3 and 66292.4.

20
138. The principal is liable for the acts of its agent in the course of the agency. Cal. Civ.
21
Code §§ 2330, 2334, 2338 – 2339. An agent is responsible to third persons when his acts in
22
23
the course of the agency are wrongful in their nature. Cal. Civ. Code § 2343 (3). Therefore,
24
25
26
3
27
The moratorium is “applicable only if the local educational agency has appropriately, and in a
timely manner, apprised the complainant of his or her right to file a complaint.” Cal. Ed. Code §
28 66292.3(d). Defendants failed to do so.
- 28-
COMPLAINT
clinical laboratory defendants are liable for age discrimination under Cal. Gov. Code §§
1
2 11135, 11139 and under Cal. Ed. Code § 66292.
3 Employers, Their Agents and Any Individuals are Prohibited from Age Discrimination
in Access to Training Programs and May be Sued for Damages and Equitable Relief
4
under California Fair Employment and Housing Act (“FEHA”) (Cal. Gov. Code §§
5 12900-12996)
6 139. It is unlawful “for an employer, because of […] age […] of any person,[…] to refuse to
7
select the person for a training program leading to employment, or to bar or to discharge the
8
person […] from a training program leading to employment, or to discriminate against the person
9
in compensation or in terms, conditions, or privileges of employment.” Cal. Gov. Code §
10
11 12940(a). “’Employer” includes any person regularly employing five or more persons, or any
12 person acting as an agent of an employer, directly or indirectly, the state or any political or civil
13
subdivision of the state, and cities […].” Cal. Gov. Code § 12926(d).
14
140. It is also unlawful “[f]or any person to discriminate against any person in the selection,
15
16
termination, training, or other terms or treatment of that person in any apprenticeship training
17 program, any other training program leading to employment, an unpaid internship, or another
18 limited duration program to provide unpaid work experience for that person because of [..] age
19
[…].” Cal. Gov. Code § 12940 (c). “’Person’ includes one or more individuals […].” Cal. Gov.
20
Code § 12925 (d).
21
22
141. The principal is liable for the acts of its agent in the course of the agency. Cal. Civ.
23
Code §§ 2330, 2334, 2338 – 2339. An agent is responsible to third persons when his acts in the
24
25 course of the agency are wrongful in their nature. Cal. Civ. Code § 2343 (3). Therefore, all
26 defendants are liable for age discrimination under Cal. Gov. Code §§ 12940(a) and 12926(d).
27
28
- 29-
COMPLAINT
Punitive and Exemplary Damages Against Clinical Laboratory Defendants are Warranted
1
2 142. Pursuant to Cal. Civ. Code § 3294(a), punitive and exemplary damages are authorized
3
where the defendants breached their obligations through oppression, fraud, or malice.
4
143. The defendants should have acted with intent to vex, injure, or annoy, or with a
5
conscious disregard of plaintiff's rights. Fleming v. Safeco Insurance Co. (1984) 160 Cal.App.3d
6
7 31, 43 [ 206 Cal.Rptr. 313] at 44, citing Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452,
8 462 [ 113 Cal.Rptr. 711, 521 P.2d 1103] and Betts v. Allstate Ins. Co. (1984) 154 Cal.App.3d
9
688, 709 [ 201 Cal.Rptr. 528].
10
144. Conscious disregard of rights is conduct by a defendant who is aware of the probable
11
dangerous consequences of such conduct to plaintiff's interests and willfully and deliberately
12
13 fails to avoid those consequences. Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co.
14 (1986) 185 Cal.App.3d 1149, 1155 [ 230 Cal.Rptr. 276].
15
145. Natividad, CHOMP and Spectra are the large clinical agencies working under the
16
guidance of their Human Resources departments who know well that age discrimination in
17
18 employment and training programs conducted on their grounds is illegal.
19 146. Individual clinical laboratory defendants are the officers of these institutions working
20
under the guidance of their Human Resources departments. They knowingly pursued the course
21
of illegal discrimination, coercion to gratuitous service work and exploitation of the vulnerable
22
people, which constitute “despicable conduct which is carried on […] with a willful and
23
24 conscious disregard of the rights […] of others.” Cal. Civ. Code § 3294(c)(1). .
25 147. Age discrimination by itself is a subject to punitive damages. Stephens v. Coldwell

26
Banker Commercial Group, Inc. (1988) 199 Cal. App. 3d 1395.
27
28
- 30-
COMPLAINT
148. The despicable behavior of defendants “subject[ed] [plaintiff] to cruel and unjust
1
2 hardship in conscious disregard of [plaintiff’s] rights,” hence it is oppressive pursuant to Cal.
3 Civ. Code § 3294(c)(2).

4
An Implied Contract Exists Between Clinical Laboratory Defendants and Plaintiff
5
149. The principle of substantive due process generally shields the academic affairs from the
6
7
courts’ intervention, except for the cases where an educational institution acts in violation of law,
8 in violation of its representations and promises, and contrary to the reasonable expectations
9 according to the norms of the society. Outside of the explicit legal framework pertaining to
10
education, the basic legal relationship between a student and a college is contractual in nature.
11
Zumbrun v. University of Southern California (1972) 25 Cal. App. 3d 1, 10 [101 Cal. Rptr. 499];
12
13 Andersen v. Regents of University of California (1972) 22 Cal. App. 3d 763, 769 [99 Cal. Rptr.
14 531]. “‘[B]y the act of matriculation, together with payment of required fees, a contract between
15
the student and the institution is created....’” Andersen, supra, at 769.
16
150. In relation to the students, clinical laboratory defendants acted as the agents of De Anza.
17
Thus, they were also subjects to the contract between De Anza and the students.
18
19 151. Plaintiff reasonably expected that clinical laboratory defendants would perform in
20 accordance with their contracts with De Anza and with the provisions of their approval and
21
accreditation as MLT training affiliates. Defendants’ acts of selection of the students on the
22
illegal basis (the age and the maximal economic benefit from service work), arbitrary denial of
23
plaintiff’s enrollment into the college course required for graduation and his coercion to the
24
25 gratuitous unregulated service work as a condition for graduation breached the contract.
26
Clinical Laboratory Defendants Engage in Unfair Business Practices, in Violation of
27
Cal. Bus. & Prof. Code § 17200 et seq.
28
- 31-
COMPLAINT
152. Cal. Bus. & Prof. Code § 17200 prohibits any “unfair competition” that includes
1
2 “any unlawful, unfair or fraudulent business act or practice […].”
3 153. Clinical laboratory defendants have been unfairly benefiting from the coerced
4
gratuitous service work of the students, especially in phlebotomy, for which the students
5
have been state licensed.
6
7
154. Clinical laboratory defendants have been fraudulently representing the coerced
8 gratuitous service work of the students as a training program.

9 155. Pursuant to California Business & Professions Code Section 17203, plaintiff is
10
entitled to (a) restitution of money acquired by means of its unfair business practices, in
11
amounts not yet ascertained but to be ascertained at trial; (b) injunctive relief against
12
13 defendants’ continuation of its unfair business practices; and (c) a declaration that
14 defendants’ business practices are unfair within the meaning of the statute.
15
156. Plaintiff has assumed the responsibility of enforcement of the state law and the
16
government wrongdoing claims stated herein. This suit is in the public interest, yet plaintiff
17
presently bears the financial burden of it. Pursuant to California Code of Civil Procedure §
18
19 1021.5, plaintiff is entitled to the reasonable attorney’s fees if he is represented by counsel at the
20 later time.
21
Intentional Infliction of Emotional Distress
22
157. The tort of intentional infliction of emotional distress is defined in California as follows.
23
24 The elements of a cause of action for intentional infliction of emotional distress are (1)
the defendant engages in extreme and outrageous conduct with the intent to cause, or
25 with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff
suffers extreme or severe emotional distress; and (3) the defendant’s extreme and
26
outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or
27 severe emotional distress.
28
- 32-
COMPLAINT
So v. Shin (2013) 212 Cal.App.4th 652, 671.
1
2 158. Age discrimination, coercion to gratuitous unregulated labor and exploitation of the
3 vulnerable students are the instances of “the extreme and outrageous conduct with the intent to
4
cause, or with reckless disregard for the probability of causing, emotional distress.” Id.
5
159. The timely completion of the program was of the existential importance to plaintiff, as it
6
was his last opportunity to complete professional retraining and to get a living wage
7
8 employment. His failure in that path would have resulted in the economic and social destruction
9 of his family and homelessness. Plaintiff notified clinical laboratory defendants about it.
10
160. After each incident of age discrimination, plaintiff suffered the intense fear, anguish,
11
anxiety, insomnia, depression, feeling of hopelessness and permanently lowered quality of life.
12
These feelings subsided and then completely disappeared whenever plaintiff was presented with
13
14 other opportunities to complete the program.

15 161. Plaintiff continues to suffer from feeling of hopelessness and anguish, anxiety and
16
insomnia because the unlawful actions of defendants denied him an opportunity to complete his
17
professional retraining and to get a living wage job. His foregoing feelings greatly increase
18
19 when his hope to complete professional retraining diminishes and after receipt of every basic
20 need bill plaintiff is unable to pay, as well as at the every instance plaintiff is unable to materially
21
help his children. Yet, they significantly subside at the increased hope to complete the
22
professional retraining and to get a living wage job.
23
CAUSES OF ACTION
24
25 FIRST CAUSE OF ACTION – Age Discrimination

(Against Clinical Laboratory Defendants for Violation of Cal. Gov. Code §11135 et seq. &
26 Cal. Ed. Code §66292 et seq.; Cal. Gov. Code § 12940 (c); and Cal. Gov. Code § 12940(a))
27
28
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COMPLAINT
162. Plaintiff incorporates by reference the foregoing paragraphs of this complaint as though
1
2 fully set forth herein.
3 163. Clinical agency defendants, who acted as the agents of college defendants, denied
4
plaintiff enrollment into the courses required for graduation from the De Anza MLT training
5
program because of his age.
6
7
164. Because of age discrimination, plaintiff is no longer able to complete the program. Any
8 of his attempts to complete the program are futile. This resulted in damages, including the lost
9 earnings.
10
165. Age discrimination by the government agencies is prohibited by Cal. Gov. Code §
11
11135. De Anza is a part of California government directly funded by the state. Clinical agency
12
13 defendants were acting as the agents of De Anza, hence the foregoing statutory provisions extend
14 to them. Also, Natividad is wholly owned by the County of Monterey receiving state funding.
15
166. Cal. Ed. Code § 66292 forbids age discrimination at community colleges, and places
16
responsibility for its prevention on the community college district. Cal. Ed. Code §§ 66292.3 and
17
66292.4 authorize recovery of damages for failure of it.
18
19 167. FEHA forbids age discrimination by employers and their agents in an access to training
20 programs leading to employment. Cal. Gov. Code § 12940(a). De Anza MLT program is a
21
training program leading to employment. Clinical laboratory defendants are the employers that
22
acted as the agents of college defendants. Therefore, all clinical laboratory defendants are liable
23
for age discrimination under this provision of FEHA.
24
25 168. FEHA also forbids age discrimination of any persons by any persons in an access to any
26 paid or unpaid training programs leading to employment or providing work experience. Cal.
27
28
- 34-
COMPLAINT
Gov. Code § 12940(c). Therefore, all clinical laboratory defendants are liable for age
1
2 discrimination under this provision of FEHA.
3 SECOND CAUSE OF ACTION – Violation of Constitutional Equal Protection

Guarantees (Against College Defendants for Violation of the Equal Protection
4
Clauses of Cal. Const., Article I, § 7(a) & Article IV, § 16(a) (Fundamental Interest))
5
6
fully set forth herein.
7
8 170. College defendants have violated and continue to violate plaintiff’s right to receive
9 equal protection of laws pursuant to the Cal. Constitution, Article I, § 7(a) by establishing an
10
“externship,” which is a 6-month full-time gratuitous work at the external clinical agencies, as a
11
condition for graduation from De Anza MLT program. Plaintiff has the well recognized
12
13
fundamental interest in his right to have an access to education in public schools not conditioned
14 on his wealth.” Serrano I, supra, Cal. 3d 584, 608-09 (1971). Pursuant to Cal. Constitution,
15 Article IV, § 16(a), that fundamental interest may not be granted to some citizens or classes of
16
citizens but not provided on the same terms to all citizens. An adult, emancipated student must
17
be considerably wealthy in order to engage in such prolonged unpaid full-time work. The
18
19 “externship” requirement selects for the wealthy students and denies the indigent plaintiff,
20 unable to subsist through a 6-month unpaid full-time work, his right to receive the equal
21
educational opportunity at a public school regardless of his wealth, and to receive privileges and
22
immunities on the same terms as the other citizens.
23
171. College defendants also violated constitutional equal protection guarantees through using
24
25 the employment interviews at the external clinical agencies to select the students for enrollment
26 into the courses required for graduation, and arbitrary denial of graduation to those who are
27
“outcompeted” at those interviews. Plaintiff has fundamental interest in his right to have an
28
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COMPLAINT
access to education in public schools not dependent on arbitrary criteria, such as capricious
1
2 opinions of the external agencies about his suitability for employment in their organizations.
3 Plaintiff has fundamental interest in completing his education at a public school without any
4
transfers to the entities outside of the public system of education. College defendants
5
unconstitutionally transferred a part of their public education program to the outside entities, thus
6
7
denying plaintiff his fundamental interest.
8 THIRD CAUSE OF ACTION – Violation of Constitutional Due Process Guarantee,

(Against College Defendants for Violation of the Due Process Clause of Cal. Const., Article
9 I, Section 7(a) in Application to Violations of Cal. Const., Article IX, §§ 5, 6 and 8)
10
11
12
13
173. College defendants arbitrarily prevented plaintiff’s graduation from the training
14 program leading to employment.

15 174. College defendants require plaintiff to barter his unpaid labor at the third party agencies
16
for his graduation.
17
175. California Constitution, Article IX, §5 guarantees the right to free public education.
18
19 California Constitution, Article IX, § 6 and 8 prohibit transfer of any part of the public education
20 system to the outside entities. These provisions amount to plaintiff’s fundamental constitutional
21
right of access to free public education.
22
176. Funding of the constitutional promise of free education is exclusively the province of the
23
legislature that is not reviewed by the state courts. See Campaign for Quality Education v. State
24
25 of California (2016) 246 Cal.App.4th 896. Subject to that constraint, the right of access to free
26 public education means that no pay for education of any kind not approved by the legislature as a
27
28
- 36-
COMPLAINT
part of its present funding scheme could be imposed. The above-described coercion to barter
1
2 gratuitous service work for education violates that constitutional right.
3 177. Plaintiff’s protected rights are the elements of plaintiff’s liberty. Plaintiff’s access to free
4
public education is plaintiff’s fundamental interest that belongs to plaintiff individually, thus it is
5
plaintiff’s property. See Butt, supra, 4 Cal. 4th 668, 681. By the complained about acts and
6
7
omissions, college defendants abridged plaintiff’s liberty and took his property without due
8 process, in violation of California Constitution, Article I, § 7(a).

9
FOURTH CAUSE OF ACTION – Violation of Plaintiff’s Constitutional Right to Free
10
Public Education (Constitutional Tort) (Against College Defendants for Violation of the
11 Cal. Const., Article IX, §§5, 6 and 8)
12 178. Plaintiff incorporates by reference the foregoing paragraphs of this complaint as though
13
14
179. California Constitution, Article IX, §5 guarantees the right to free public education.
15
California Constitution, Article IX, § 6 and 8 prohibit transfer of any part of the public education
16
17 system to the outside entities. These provisions amount to plaintiff’s fundamental constitutional
18 right of access to public educational programs that should be provided free of charge. The right
19
to free education is solely constrained by the legislative funding. See discussion, supra.
20
180. College defendants transferred a part of the public education system to the outside
21
22
entities and made it a labor barter arrangement, that is, the students pay for it by their labor.
23 Hence, the system is not accessible and, as discussed above, the pay for education demanded by
24 college defendants from the students exceeds the limits established by the legislature as a part of
25
its present funding scheme.
26
181. As a result, plaintiff suffered damages, including the lost earnings. This is constitutional
27
28 tort, for which plaintiff is entitled to seek compensation.

- 37-
COMPLAINT
FIFTH CAUSE OF ACTION – Tort of Coercion / Intimidation to Perform Gratuitous
1
Service Work
2 (Against All Defendants)
3 182. The tort of coercion is committed when the person compels or induces another person to
4
engage in conduct from which the other person has a legal right to abstain, by means of instilling
5
in the other person a fear of adverse consequences. By a threat of denial of graduation, licensing
6
and exclusion from the living wage job market, defendants coerced the students to perform
7
8 gratuitous service work for the benefit of defendants. The students were coerced to
9 enthusiastically plead their desire to perform service work benefiting defendants. Plaintiff
10
declined to do so, and was deprived of graduation from the program, of the state license and of
11
an access to the job market.
12
13
SIXTH CAUSE OF ACTION – Violation of the California Labor Laws
(Against Clinical Laboratory Defendants for Violation of the Cal. Labor Code §1182.12
14 and CA Minimum Wage Order (MW-2017))
15 183. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as though
16
17
184. As a condition for graduation, defendants demand that the students perform the
18
prolonged full-time unpaid work benefiting defendants. For a permission to engage in that work,
19
20 the students must “compete” on proving that that the value of their gratuitous labor would be
21 greater than that of other students. Unless the student enthusiastically agrees to be exploited, he
22
is deprived of graduation, of the state license and of an access to the job market for which he was
23
trained.
24
25 185. The purpose of that coercion to gratuitous labor is circumvention of the requirements of
26 California labor laws and unfair enrichment of defendants.

27
28
186. Clinical laboratory defendants employ the students.
- 38-
COMPLAINT
187. Plaintiff went for the job interviews with clinical laboratory defendants, but he was
1
2 discriminated against. Thus, he did not incur the unpaid wages and is not seeking compensatory
3 damages for this claim. However, in plaintiff’s further attempts to graduate from the program, he
4
is still a subject to the complained about conditions. Therefore, he is seeking equitable and
5
declaratory relief with regards to this cause of action.
6
7
SEVENTH CAUSE OF ACTION – Breach of Contract
(Against Clinical Laboratory Defendants)
8
9
11 189. As discussed above at length, an implied contract exists between De Anza and plaintiff.
12 That contract extends to clinical laboratory defendants, who acted as De Anza’s agents.
13
190. Defendants’ discrimination of the students on the basis of their age and the maximal
14
economic benefit from their service work, denial of plaintiff’s enrollment into the college course
15
16 required for graduation and his coercion to the gratuitous unregulated service work as a condition
17 for graduation breached the contract.

18
19 EIGHTH CAUSE OF ACTION – Intentional Infliction of Emotional Distress

(Against Clinical Laboratory Defendants)
20
21
23 192. As discussed above, the foregoing conduct of defendants is extreme and outrageous. By
24
engaging in such conduct, defendants intended or recklessly disregarded the foreseeable risk that
25
plaintiff would suffer the above-described extreme emotional distress as a proximate result of
26
27 their conduct. Plaintiff suffered the general damages in an amount to be proved at trial.
28
- 39-
COMPLAINT
NINTH CAUSE OF ACTION – Tort of Negligence
1
(Against Entity X and Entity Y)
2
193. Entity X negligently approved De Anza, Natividad, CHOMP and Spectra for MLT
3
training, even though these defendants are blatantly non-compliant with state law and
4 regulations.
5
194. Entity Y negligently accredited the non-compliant De Anza MLT Program, and failed to
6 properly investigate the brazen misrepresentations contained in its application for accreditation.
7 195. In making his decision to enroll into the De Anza MLT Program, plaintiff relied on the
8 program’s accreditation and approval. Thus, negligent approval by Entity X and negligent
accreditation by Entity Y deceived plaintiff.
9
10
196. Entity X and Entity Y are sued for equitable and declaratory relief only.
11 TENTH CAUSE OF ACTION – Unfair Business Practices

(Against Clinical Laboratory Defendants for Violation of Cal. Bus. & Prof. Code § 17200 et
12 seq.)
13
14
15
16
198. Clinical laboratory defendants have been unfairly benefiting from the coerced
17 gratuitous service work of the students, especially in phlebotomy, for which the students
18 have been state licensed.
19
199. Clinical laboratory defendants have been fraudulently representing the coerced
20
gratuitous service work of the students as a training program.
21
22 200. Clinical laboratory defendants have been regulating enrollment into the De Anza’s
23 academic courses and graduation from the De Anza MLT Program on the basis of illegal
24
criteria, such as the student’s age and benefit to them from his unpaid service work.
25
201. The foregoing college defendants’ acts and omissions are contrary to Cal. Bus. & Prof.
26
Code § 17200 et seq.
27
28 202. The unlawful conduct described herein resulted in damages to plaintiff.

- 40-
COMPLAINT
.
1
2 ELEVENTH CAUSE OF ACTION – Taxpayer Claim

(Against College Defendants for Violation of Cal. Civ. Proc. Code § 526a (Illegal
3 Expenditure of Taxpayer Funds))
4
5
6
204. Plaintiff is a U.S. Citizen who is assessed for, is liable to pay and, within one year before
7
8 commencement of this action, has paid taxes.
9 205. College defendants’ expenditure of public funds to administer and implement a system
10
of public education that engages in the unconstitutional conduct, discrimination, economic
11
exploitation, violation of numerous California statutes, breach of contracts, fraud and other
12
13
unfair business practices, as challenged herein, is illegal and wasteful. Plaintiff, as a taxpayer,
14 has an interest in enjoining the unlawful expenditure of tax funds.

15 206. Pursuant to Cal. Civ. Proc. Code § 526a and this Court’s equitable power, plaintiff seeks
16
declaratory and equitable relief to prevent continued harm and to protect plaintiff and the public
17
from college defendants’ unlawful policies, practices, and deliberate indifference, as alleged
18
19 herein.
20 PRAYER FOR RELIEF

21
Wherefore, Plaintiff prays for relief as follows:
22
A. An award of general and special damages against all defendants, in the amount to be
23
determined according to proof;
24
25 B. An award of exemplary and punitive damages against the clinical agency defendants
26 in the amount to be proved at trial;

27
28
- 41-
COMPLAINT
C. An award of plaintiff’s costs, expenses and reasonable attorney's fees against all
1
2 defendants;
3 D. Declaratory judgment that:

4
(a) College defendants illegally outsourced a part of their public educational program
5
to clinical laboratory defendants;
6
7
(b) Clinical laboratory defendants breached their contract with plaintiff;
8 (b) Clinical laboratory defendants illegally regulated the students’ enrollment into De
9 Anza academic courses using the capricious employment interviews;
10
(c) Clinical laboratory defendants discriminated against Plaintiff because of his age;
11
(d) Clinical laboratory defendants unlawfully coerced the MLT students to perform
12
13 service work benefiting defendants.
14 (d) College defendants’ “externship” is designed to circumvent California labor law;

15
(e) The students supplied through the “externship” to work at clinical laboratory
16
defendants are their employees;
17
(f) College defendants have been engaged in the illegal expenditure of public funds;
18
19 (g) Clinical laboratory defendants have been engaged in the unlawful, unfair and
20 fraudulent business practices;

21
(h) Entity X negligently approved the non-compliant De Anza MLT Program and its
22
affiliates;
23
(i) Entity Y negligently accredited the non-compliant De Anza MLT Program;
24
25 F. An order that permanently enjoins defendants from the foregoing discriminatory,

26 unlawful, unfair and fraudulent practices;
27
28
- 42-
COMPLAINT
G. An order that defendants immediately enroll plaintiff in a proper accessible clinical
1
2 training course that assures plaintiff’s graduation from De Anza MLT Program.
3 H. Such other and further relief as the Court may deem just and proper, including further
4
injunctive and representative relief.
5
7
Date: December 19, 2019
10
11
__________________________________________
12
Gregory Steshenko, Plaintiff
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 43-
COMPLAINT
EXHIBIT A
EDUCATION AGREEMENT
BETWEEN
FOOTHILL-DE ANZA COMMUNITY COLLEGE DISTRICT
AND
NATIVIDAD MEDICAL CENTER (County of Monterey)
THIS AGREEMENT is made and entered into as of the date set forth herein below, by and between
fHD4 (0111UIVNl1/ (()Llf6r j)57{"SCHOOL') and Natividad Medical Center ("CLfNICAL
F ACILITY'') a general acute care teaching hospital wholly owned and operated by the County of
Monterey.
RECITALS:
1. SCHOOL is a vocational institution that complies with the State of California guidelines.
Students receive a certificate of completion upon meeting the Program criteria. The Program
requires a clinical learning site and the use of clinical facilities. The Program is that of the
SCHOOL and not of the CLINICAL FACILITY.
2. The CLINICAL rACILITY has facilities suitable for providing the clinical experience required
by the SCHOOL's Program.
3. It is to the mutual benefit of the parties hereto that SCHOOL's students have opportunities to
use the CLINICAL FACILITY facilities for their clinical practicum. This Agreement describes
the conditions or the participation between the parties.
NOW, THEREFORE, in consideration of the covenants, conditions and stipulations hereinafter

expressed and in consideration of the mutual benefits to be derived therefrom, the parties hereto
agree as follows:
4. DEFINITIONS:
a. Clinical Practicum means the practical experience that the Student obtains by means or
onsite actual clinical experience under CLfNICAL FACILITY supervision.
b. Preceptor is the CLINICAL rACILITY employee who directly supervises the Student in
his/her clinical practicum.
c. Unit means the department or clinic within the CLINICAL FACILITY in which the Student
obtains clinical experience.
d. Faculty Member means the professor who evaluates the Student's clinical practicum.
e. Student means the SCHOOL student who is performing his/her clinical practicum at the
CLINICAL FACILITY.
CLINICAL FACILITY SHALL:
5. Accept from the SCHOOL the mutually agreed upon number or students enrolled in the
SCHOOL's Program. CLINICAL FACILITY shall designate a member of its staff to participate
with the designee of the SCHOOL in planning, implementing and coordinating the clinical
STE-001162
experience practicum. CLINICAL FACILITY shall permit designated Hospital personnel to
participate in the instruction of the students; however, this shall not interfere with the service
commitments of the Hospital personnel.
6. Provide facilities as presently available and as necessary for the development and
maintenance of a clinical educational experience for SCHOOL's students taking part in
the practicum. CLINICAL FACILITY shall permit said student(s) of SCHOOL access to
the appropriate facilities for the clinical experience program, including classroom and
conference room space when available; provided that the presence of the students shall
not be allowed to interfere with the regular activities of the CLINICAL FACILITY.
7. Maintain its facilities used for the clinical experience in such a manner that said facilities
shall conform to all applicable provisions, requirements, standards and guidelines of State
Boards, licensing or accreditation agencies such as Joint Commission, and/or the Business &
Professions Code.
8. Assure that CLINICAL FACILITY staff is adequate in number and quality to insure safe
and continuous management of the clinical practicum in cooperation with SCHOOL's
educational program.
9. The CLINICAL FACILITY shall:
a. Provide students taking part in the clinical experience, whenever possible, with such other
incidentals as may be mutually agreed upon form time to time by the parties.
b. Provide equipment, materials and other necessary resources that are adequate to provide an
appropriate clinical experience.
c. Retain full responsibility for the supervision of patient care.
d. Provide the Student(s) with access to learning experiences and involvement in patient care
in its clinical facilities.
e. Maintain or cause the preceptor to maintain professional liability insurance in an amount
equivalent to that maintained by the Student.
f. Not use the name of the SCHOOL in any advertising, commercial, or published materials
without first obtaining the express written authorization from the SCHOOL.
g. Confirm and assure that the Student is not an employee of the Hospital and has no
responsibility for supervision of patient care in any department or unit of the Hospital.
h. CLINICAL FACILITY shall assign an appropriate individual to:
1. Be responsible, in coordination with the SCHOOL's staff, for planning and scheduling
of student activities at the CLINICAL FACILITY prior to each student rotation.
ii. Maintain during each clinical rotation, the clinical performance evaluations for
assigned students.
iii. Attend meetings, as appropriate, when requested by the SCHOOL or Hospital.
I 0. Provide emergency first aid and medical treatment for any student who becomes sick or injured
on CLINICAL FACILITY's premises during said student's participation ln the clinical
practicum at the CLINICAL FACILITY. Provide any additional medical examinations and/or
STE-001163
other protective measures that may be required by the CLINICAL FACILITY. Except as
provided herein the CLINICAL FACILITY shall have no obligation to furnish medical or
surgical care to any student.
11. Have the right, after consultation with the SCHOOL, to request withdrawal from further clinical
experience any student of the SCHOOL who, in the CLINICAL FACILITY's judgment, is not
participating satisfactorily in the clinical educational practicum, or who refuses to follow the
Hospital's administrative and patient care policies, procedures, rules and regulations, including
inappropriate behavior, dress and/or hygiene. The CLINICAL FACILITY's request must be in
writing and must include a statement of the reason(s) for withdrawal. Said request shall be
complied with immediately by the SCHOOL, but not later than five (5) days from its receipt of
same, depending upon the severity of the problem.
12. CLINICAL FACILITY supervisory employees may, in an emergency or based upon applicable
standards of client service, temporarily relieve a student from a particular assignment or
require that a student leave an area or department, pending the parties' final determination of
the student's future status.
SCHOOL SHALL:
13. Be responsible for the academic content, development, and administration, promotion of the
Program and shall provide necessary instruction and academic supervision. SCHOOL shall
be responsible for clear and specific objectives and planned learning activities for the clinical
component of instruction, clinical manuals for students, and appropriate evaluation instruments
for student learning, The clinical experience practicum shall be conducted in a manner
satisfactory to CLINICAL FACILITY; and the time, place and subject matter of all training
shall be subject to CUNICAL FACILITY's approval. Selection of specific learning or
educational experiences to be assigned to students shall be determined by mutual agreement
between the parties.
14. Establish a rotational plan for the clinical experience by mutual agreement between appropriate
representatives of the parties. The parties may formalize by letter the operational details of the
clinical experience program. SCHOOL shall provide both Student and CLINICAL FACILITY
with a copy of the performance objectives for the clinical practicum and the assurance that the
student is theoretically prepared for meeting those objectives.
15. Designate those students who are enrolled in the Medical Services Department of the SCHOOL
to be assigned for clinical educational experience at the CLINICAL FACILITY, in such
numbers as are mutually agreed to by the parties from time to time.
16. Supply the CLINICAL FACILITY with the name, biographical data, report of health status,
and information about health care coverage or insurance of each student to the CLINICAL
FACILITY at least two (2) weeks before the beginning date of each clinical experience
program. SCHOOL shall supply any additional information required by_ the CLINICAL
FACILITY prior to the beginning date of each clinical experience program. ·
STE-001164
17. Certify to CLINICAL FACILITY at the time each student first reports at CLINICAL
FACILITY to participate in the clinical educational experience that said student has been
informed of the requirement to comply with all agreed upon health and health insurance
requirements from students in the program.
18. Provide instruction to students through clinical instructors employed by the SCHOOL, who
shall assume full and complete responsibility for all classroom and clinical instruction of the
students unless, in specific instances, other provisions are made which are mutually satisfactory
to the parties. SCHOOL shall keep all attendance and academic records for all students
participating in the said program. The SCHOOL shall maintain records and reports of student's
clinical experience for a period of at least five (5) years.
19. Inform students of their responsibility to perform their duties in a professional manner and
conduct themselves appropriately while at the CLINICAL FACILITY. Instruct every student to
conform to all applicable CLINICAL FACILITY policies, procedures and regulations, and all
requirements and restrictions specified jointly by representatives of the SCHOOL and
CLINICAL FACILITY.
20. Designate a faculty member to be Clinical Coordinator and consult with a designee of the
CLINICAL FACILITY in the planning of the program of clinical experience to be provided
students of the SCHOOL, and arrange for periodic conferences between appropriate
representatives of the SCHOOL and CLINICAL FACILITY to evaluate and improve the
clinical educational experience program.
2 I. The parties shall arrange for evaluation of the student's performance during the clinical rotation.
22. Notify students that they are responsible for:
a. Following the CLINICAL FACILITY's administrative policies and procedures;

b. Providing the necessary and appropriate uniforms which shat! be designated, but not
provided, by the CLINICAL FACILITY;
c. Arranging for their own transportation and living accommodations when not provided by
the CLINICAL FACILITY;
d. Reporting to the CLINICAL FACILITY on time and following all established rules and
regulations of the CLINICAL FACILITY;
e. Arranging for his/her own health insurance when not provided by the SCHOOL;
f. Assuming responsibility for the personal illness, necessary immunizations, tuberculin test,
chest x-ray and annual health examination;
g. Maintaining the confidentiality of any and all patient information in accordance with
applicable state and federal law and regulations, including the Health Insurance Portability
and Accountability Act ('HIPAA"). No student shall have access to, or have the right to,
review any medical record except where necessary in the regular course of the program. The
discussion, transmission or narration in any form by students of any patient information of a
personal nature, medical or otherwise, obtained in the regular course of the clinical
experience program is forbidden, except when specifically made a necessary part of the
program.
STE-001165
STUDENT RESPONSIBIL TITES:
23. The student will keep a written log of procedures for which he/she is responsible. This
log will be signed off on a regular basis by the Preceptor verifying student attendance
hours and procedures.
24. The student will arrive at the Hospital on time every day for work-scheduled hours.
25. The student will be provided verbal and/or written feedback from Preceptor, which will
also be reported to the Clinical Coordinator.
26. The student will be considered a learner and shall not replace hospital staff nor give services
to patients, except as part of his/her educational training, and except as may be legally
permissible under the applicable California law, including the Health & Safety Code and the
Business & Professions Code.
GENERAL PROVISIONS:
27. The parties agree that Student shall not bill or charge any other party or entity including,
without limitation, the Medicare program or any other third party payor, for clinical
internship services. To the extent permitted by law, Clinical Facility shall be solely
responsible for billing and collecting any applicable fees and charges from during his/her
clinical internship.
28. Nondiscrimination. The parties agree that all students receiving clinical training pursuant to
this Agreement shall be selected and be treated throughout their clinical experience without
discrimination on account of race, color, ethnic group, national origin, ancestry, religious
creed, sex, sexual preference, age, veteran's status, cancer-related medical condition, physical
handicap (including AIDS) or disability.
29. Relationship of the Parties; Independent Contractors. It is expressly understood and

mutually agreed that this Agreement is not intended and shall not be construed to create the
relationship of agent, servant, employee, partnership, joint venture or association between the
SCHOOL and the CLINICAL FACILITY, but is rather an agreement between independent
contractors for the sole purpose of establishing a clinical experience component to the
SCHOOL's Program of instruction. This Agreement is not intended to, and shall not be
construed to, create rights or benefits of any kind or type in any third parties such as those
students who participate in the clinical experience program except and unless specifically set
forth herein.
30. No Third Party Rights. It is expressly agreed and understood by the parties to this
Agreement that the students who take part in this program are in attendance at the CLINICAL
FACILITY for educational purposes only. Without limiting the foregoing, no offer or
obligation of permanent employment with the County or with any department or Clinical
Facility of the County is intended or implied in any manner by this Agreement. SCHOOL's
STE-001166
students are not employees of either party and this shall not become entitled, by virtue of this
Agreement, to any form of employee benefits or fringe benefits whatever, including but not
limited to compensation for services, employee benefits of any and all types, including
workers compensation, unemployment compensation or insurance, vacation pay, sick leave,
retirement benefits, social security benefits, disability insurance benefits, or any other
employee benefits, except and unless specifically set forth herein.
31. Insurance. The SCHOOL and the CUNICAL FACILITY shall each procure and maintain in
full force and effect, at its own cost and expense, General and Professional Liability insurance
in the amounts of $1,000,000 per occurrence I $3,000,000 in the aggregate; or shall self-insure
its obligations under this Agreement, if permitted by law. Each shall be responsible for
providing the other with a Certificate of Insurance evidencing the required coverage.
The SCHOOL shall maintain or shall cause each Student to maintain professional liability,
public liability and property damage insurance in the amount of $1 Million for any single
occurrence and a minimum of $3 Million in the aggregate during the Student's clinical
experience. The SCHOOL shall furnish or cause its Student participants to furnish proof of
such insurance coverage prior to the beginning of the student's participation in the clinical
experience practicum.
32. Indemnification. The SCHOOL shall save harmless and indemnify the CLINICAL
FACILITY, the County of Monterey, their trustees, officers, employees and agents, against
any and all claims, demands, suits, judgments, expenses and costs of any and every kind,
insofar as it may legally do so, on account of the injury to or death of persons or loss of
property arising in any manner out of the SCHOOL's performance of the terms of this
Agreement.
The CLINICAL FACILITY shall save harmless and indemnify the SCHOOL, its directors,
trustees, officers, employees and agents, against any and all claims, demands, suits,
judgments, expenses and costs of any and every kind, insofar as it may legally do so, on
account of the injury to or death of persons or loss of property arising in any manner out of the
CLINICAL FACLIITY's performance of the terms of this Agreement.
It is the intention of SCHOOL and CLINICAL FACILITY that the provision of this paragraph
be interpreted to impose on each party responsibility for the negligent and/or intentional acts
of its trustees, officers, employees and agents.
33. Termrrermination of Agreement. This Agreement shall become effective on the date of the
countersignature and shall continue for a period of three (3) years, and shall be renewablev
thereafter by mutual agreement of the Parties for a period mutually agreed to by them:
provided, however, that it may be terminated earlier by either party after giving the other
party not less than thirty (30) days' advance written notice of its intention to so terminate. In
the event of such earlier termination, any student(s) currently participating in the clinical
educational experience at CLINICAL FACILITY shall be allowed do complete his/her
experience at CLINICAL FACILITY unless the parties to this Agreement mutually agree
otherwise.
STE-001167
34. This Agreement shall be subject to periodic review by the parties as the need may arise in
order to consider any amendment, alteration or change as may be mutually agreed to in
writing by the SCHOOL and the CLINICAL FACILITY. Additionally, this Agreement is not
legal and binding upon either party until executed by both the SCHOOL and the CLINICAL
FACILITY.
35. And written notice given under this Agreement shall be sent by United States mail to each
address below;
CLINICAL FACILITY: SCHOOL:
Natividad Medical Center

(1 original) (1 original)
Attn: Contracts Divisio:i

1441 Constitution Blvd.
Salinas, CA. 93906
aldrichk@natividad.com
Fax 831-757-2592
City, State, Zip:--------------
Email: ~--~~~-~~--~----~~
36. GENERAL CONDITIONS
a. The Student and Preceptor shall furnish the CLINICAL FACILITY with a copy of
the current license to practice in the State of California.
b. The Student shall furnish the CLINICAL FACILITY with evidence of current
immunization and other health related information as required by the CLINICAL
FACILITY.
c. The Student shall provide the CLINICAL FACILITY with documentation of current
Basic Cardiac Life Support ("BCLS") and Standard Precautions education.
d. The parties each affirm that they do not and shall not discriminate against any employee
or student on the basis of race, color, religion, age, sex, national origin, sexual
orientation, or disability.
37. Background Check. The SCHOOL shall, in a timely manner, at the Student's expense
conduct (or have conducted) a background check on each and every student assigned to the
Program. The background check for students shall include the following:
a. Social Security Number Verification

b. Criminal Search
c. Employment Verification
STE-001168
d. Sex Offender Registry
e. Combined OIG/GAS Report
f. Healthcare Sanctions Registry
Should the background check disclose adverse information as to any Student, the SCHOOL
shall immediately notify the CLINICAL FACILITY.
38. Governing Law. This Agreement shall be governed by and interpreted under the laws of the
State of California.
39. Intcgration/Moclitication. This Agreement, including any exhibits, represent the entire
Agreement between the County and the CONTRACTOR with respect to the subject matter of
this Agreement and shall supersede all prior negotiations, representations, or agreements,
either written or oral, between the County and the CONTRACTOR as of the effective date of
this Agreement, which is the date that the County signs the Agreement. This Agreement may
be amended or modified only by an instrument in writing signed by the CLiNICAL
FACILITY and the SCHOOL.
IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of the parties
hereto, on the dates set forth below.
NATIVIDAD MEDICAL CENTER {NMC)
critic)
03/22/2016
Date: _ Date: _q\<+___.·
~~-
By: V/~
~~C0~C)
Approved as to Legal Form:
Charles J. ~
J
Deputy County Couhscl
Date
STE-001169
r6
Cl
:::r-
~
<:::>
. . .1 ::r-
Community College District
o
I'
~
Vice Chancellor of Business Services ~ ~
Q..
al
FHDA Contract/Agreement Routing Sheet ~ ~
TYPE: CLINICAL SITE (Non-Monetary)
Must be auached lO contracts when sending to Vice Chancellor
Contract Name: 4;;., 7tt/1p' ;,/

Start Date: Li//7 /1J:, End Date: 4 /J t,/t r1 Program/Dept.: 01 o t lc:',/i.(l,
prim name/phone sig11a1ure date
1. Originator rl,c.,q'µ llt Ko llr v 1,tt(k t/1Lef4-._ ),/.J-//G

'> Supervisor/ Adminisrrator(tv /.Ne-TTE:) ...
3. Campus Vice President - Bernata
4. k. lJj2. T ~llJEG-
5. Risk Management - Marsha Kelly
6. Vice Chancellor, Business Services* --'f-F--,MJ-,:. -l~-----

"Required prior 10 beginning work of the contract, For clinical contracts, return originals to originator.
STE-001170
EXHIBIT B
Print Window https://mail.yahoo.com/d/search/keyword=fhda.edu/messages/AH5pim...
Subject: Re: Request for Information

From: rancklorrie@fhda.edu
To: gsteshen@yahoo.com
Cc: kandulaanita@fhda.edu; buchnerpatricia@fhda.edu
Date: Tuesday, August 15, 2017, 8:23:14 AM PDT
Greg,
This will respond to your most recent allega ons and request for informa on. As others have previously indicated, on mul ple
occasions, the intent of the MLT program is to “prepare students for employment in medical, clinical, research and public health
laboratories.” Students are trainees. “As a trainee...[students]... will be taught basic techniques and knowledge required for entry
in the Medical laboratory Technician Profession.” (MLT Student Handbook, 2) The MLT program “is designed to prepare...
[students]... to be a safe and effec ve prac oner of laboratory tes ng.” (Id.) The College’s MLT program “recognizes that to
achieve this, the student must be able to grasp technical and theore cal knowledge and to successfully apply this knowledge in a
clinical se ng.” (Id., 7) “The mission of the De Anza College Medical Laboratory Technician Program is to provide students with
the technical skills and knowledge needed to perform rou ne clinical laboratory tes ng in all major areas of the laboratory.” (Id.)
“Also during the second year, students par cipate in 828 hours of clinical rota on in local laboratories. During these clinical
rota ons, students learn the applica on of theore cal knowledge, tes ng procedures and gain prac cal exposure to laboratory
opera ons. This clinical mes is divided into three 216 hour rota ons and one 180 hour rota on.” (Id., 8)
To repeat, again, what we have previously told you, the College MLT program has no power or authority to force a par cipa ng
clinical site to accept any par cular student for an externship. Clinical sites par cipate in our program voluntarily, although their
par cipa on requires them to constantly supervise and evaluate the students they do accept. The College agreement with a
par cipa ng clinical site contains the site’s promise not to discriminate against students. Once the school selects students who
are able to advance to the externship por on (selec on of trainees), the decision on whether to accept or reject any of our
students for an externship is en rely that of the site. As the Student Handbook points out, “[s]ecuring placement in the clinical
training por on of the ...MLT program is a compe ve process. Students must interview with clinical affiliates for clinical training
posi ons and are not guaranteed placement.”
The Student Handbook makes it clear that a student’s failure to secure a training site will have consequences. If an MLT student
interviews for clinical placement and is not chosen by a clinical training facility, the MLT program director will contact the
Educa on Coordinator(s) for the feedback on the MLT student. The MLT program director will work with the student to improve
or alleviate any concerns brought forth by the clinical sites. In your case, both externship sites opted for other candidates be er
suited for their site who showed enthusiasm and interest in the opportunity. The student may be referred to De Anza College’s
Occupa onal Technical Ins tute where interview and resume assistance is available. We can certainly provide OTI as a resource
prior to the next round of externship applica ons. Per the Student Handbook, the student may con nue to interview for clinical
placement. If within the two years of comple ng the academic por on of the MLT program, the student has been unable to
secure clinical training, they will no longer be eligible to compete for placement. (MLT Student Handbook, p.20)
These provisions of the Student Handbook state the policy of the MLT program. They are clear. The program supplies you with a
list of qualifying clinical sites which are willing to accept students. We have done this. The burden is then on you to gain
acceptance at the clinical site, through the compe ve interview process. You have not done so. Your failure to secure a
placement and complete the externship hours, will result in your failure to earn the MLT cer ficate. Externship opportuni es, as
they become available, will con nue to be offered to eligible MLT students.
While the clinical sites have not selected you thus far, you have con nued to express your belief that you should be regarded as
an employee of the clinical site, rather than a student intern, and should be paid for “services” you provide. Of course you are
en tled to your opinion, but in this instance you are completely incorrect. Clinical sites are forbidden to use students to
subs tute for regular employees during student training. (MLT Student Handbook, 12, 84) The purpose of the clinical program is
to provide the training and educa on in clinical and technical skills students need to acquire, to graduate from the program. (Id.,
9, 18) “The clinical rota on is a guided, supervised experience.” (Id., 18) Students par cipate in the clinical training experience
under the supervision of the site instructor, and “[e]ach student will receive a clinical rota on evalua on by the clinical site
instructor(s); these will account for a percentage of the student’s grade. (Id., 18) The student’s “assignments are made by [his]
1 of 4 9/9/2018, 8:32 PM
STE-001180
instructor and are consistent with [his] level of prepara on.” (Id., 25) These statements of program policy are consistent with
applicable law. Students working in a training capacity as part of their educa on are not by virtue of that work “employees” of
the school. Bobilin v. Bd. of Educa on, State of Haw., 403 F. Supp. 1095 (D. Haw. 1975)(students performing cafeteria du es as
mandated by the Board of Educa on were not employees under the FLSA because such duty had an educa onal value which was
not inarguably frivolous. The mere fact that the School may have derived some economic value from the program does not
override the educa onal benefits of the program and is not disposi ve of the "employee" issue) See, Rutherford Food Corp. v.
McComb, 331 U.S. 722, 730 (1947)(the determina on of employment under the FLSA does not depend on isolated factors but
upon the "circumstances of the whole ac vity."); Walling v. Portland Terminal Co., 330 U.S. 148 (1947)(trainees are not
employees for FSLA purposes).
You have alleged age discrimina on was a factor in your inability to secure an externship. Allega ons of discrimina on
are taken seriously: your claim has been referred to the Dean of Student Development and should you wish to pursue
this claim further you will need to communicate with the Dean of Student Development, Hinson Campus Center, Lower
Level as she is the campus contact.
—
Lorrie Ranck
~* Accustomed to responding to the pronouns she/her/herself *~
Associate Vice President, Instruc on

De Anza College
Rancklorrie@deanza.edu
408.864.8510
From: Greg Steshenko <gsteshen@yahoo.com>

Reply-To: Greg Steshenko <gsteshen@yahoo.com>
Date: Sunday, August 6, 2017 at 7:07 AM
To: Tricia Buchner <buchnerpatricia@ da.edu>
Cc: Anita Muthyala-Kandula <kandulaanita@ da.edu>, Staff <rancklorrie@ da.edu>
Subject: Re: Request for Informa on
Patricia,
You have not answered my email requesting an alternative training for graduation from your school.
You have been given the sufficient time to offer a solution.
As you know, before I take an action, I always carefully collect and analyze all available information.
I am in possession of De Anza’s contracts with CHOMP and Natividad. The training “application”
procedure and the denial of training, to which I was subjected, are contrary to these contracts. The
clinical agencies have no part in selection of the trainees. The selection and the assignment to the
facility is performed solely by the school.
“Section II.1 Selection of Trainees. SCHOOL· shall be responsible for selecting the individual
trainees who shall be assigned to HOSPITAL.” CHOMP Contract.
“ CLINICAL FACULTY SHALL:

5. Accept from the SCHOOL the mutually agreed upon number of students enrolled in the SCHOOL’s
Program.” Natividad Contract.
School is fully responsible for the content of clinical training. See Natividad Contract, Section 13 et
seq.
2 of 4 9/9/2018, 8:32 PM
STE-001181
You have failed to assign me to the clinical training. My interviews with the clinical agencies were
inappropriately conducted for my evaluation as an unpaid employee, contrary to labor law.
You colluded with the clinical agencies to effect circumvention of labor law through the unpaid
employment of the already licensed and experienced phlebotomists under the guise of “clinical
training.” Under that scheme, only the experienced phlebotomists willing to donate their labor to the
clinical agencies are afforded an opportunity to graduate from your school. Because of that conspiracy
and because of my age, I am precluded from graduation.
If you dispute any part of this assessment and have legal justification for your actions, please let me
know.
I request an immediate assignment to a clinical agency within a commuting distance from my

residence, or any form of alternative training that would allow for my timely graduation from your
school. Barring that, I would have no choice but to take an action for recovery of damages.
-Gregory Steshenko
From: Greg Steshenko <gsteshen@yahoo.com>

To: Tricia Buchner <buchnerpatricia@fhda.edu>
Cc: Anita Muthyala-Kandula <kandulaanita@fhda.edu>; Lorrie Ranck
<rancklorrie@fhda.edu>
Sent: Thursday, July 13, 2017 5:52 PM
Subject: Re: Request for Information
Patricia,
You gave no meaningful responses to my following key questions:
4. What incentives do you clinical agency partners have to take your students?
5. Do you have any agreements with the clinical agencies that outline the scope of the school
curriculum and of the training the students would receive?
6. Is phlebotomy one of them?
7. Do the agreements make clear that the students are already licensed as the phlebotomists?
8. If the agreements specify phlebotomy as an area of the externship training, do they state
rationale for it and specify the supervision requirements?
9. Do I have to profess my enthusiasm about phlebotomy to get an MLT externship ?
Your reference to the student manual is disingenuous. The manual has no relevance to the practices of
the clinical training at your school.
The alternative training is any form of training that allows for timely graduation from your school
and that does not involve the selection of the students on the basis of their ages, prior paid experience
at the clinical labs, prior paid employment as a phlebotomist and an expression of enthusiasm about
performance of the unpaid work as a phlebotomist.
-Greg Steshenko
3 of 4 9/9/2018, 8:32 PM
STE-001182
From: Tricia Buchner <buchnerpatricia@fhda.edu>

To: Greg Steshenko <gsteshen@yahoo.com>
Cc: Anita Muthyala-Kandula <kandulaanita@fhda.edu>; Lorrie Ranck
<rancklorrie@fhda.edu>
Sent: Thursday, July 13, 2017 5:14 PM
Subject: Request for Information
Hello Greg,
I have forwarded your request for public record information to the appropriate contacts.
I have tried to address your questions and concerns please see the student manual and if you still have
questions please let me know.
I do not understand your alternative training suggestion. Please explain.
Tricia
4 of 4 9/9/2018, 8:32 PM
STE-001183
EXHIBIT C
STATE OF CALIFORNIA Arnold Schwarzenegger, Governor
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
455 Golden Gntc Avenue, 9•h Floor
San Francisco, California 94102
(415) 703-4863
(415) 703-4806 fax
ANGELA BRADSTREET, STATE LABOR COMMISSIONER
DAVID BALTER
Acting Chief Counsel
April 7, 2010
Joseph W. Ambash, Esq.

GREENBERG TRAUIUG, LLP
One International Place
Boston, MA 02110
Re: EducationalInternshipProgram
Dear Mr. Ambash:
This responds to your request for an opinion regarding an internship program administered
by your client, Year Up, Inc., which is aimed at developing fundamental job skills and technical
skills in information technology for 18-24 year olds primarily in underserved communities.
Specifically, you seek an opinion from the Division of Labor Standards Enforcement's (DLSE) as
to whether California law requires that the trainee/interns enrolled in the program are to be treated
as employees subject to California's wage and hour laws.
As more fully discussed below, our analysis of the internship program structure and interns'
specific activities leads us to conclude that such interns enrolled in the internship program are not
employees under California law. Consequently, based upon the representations of the program
structure and practices in your letter, interns in the described program are exempt from coverage
under the State's minimum wage law.
In summary, the internship program is operated by Year Up, Inc., a non-profit 50l(c)(3)
organization (the "Program"), that serves 18-24 year olds in primarily underserved communities
who have not progressed beyond a GED or high school diploma. The objective of the program is to
"close the Opportunity Divide by providing urban young adults with the skills, experience, and
support that will empower them to reach their potential through professional careers and higher
education."
The Program is described as providing an I I-month intensive educational and training

curriculum designed with the following goals: providing young adults with technical skills in
information technology; developing professional skills for working in an office environment;
offering a support network of social workers, instructors, and mentors; and instilling the
importance of lifelong learning through career development tools and assistance with applying to
college. In the first 5 months enrollees participate in a learning and development phase where they
receive college level classroom instruction. Students are dually enrolled with the Program and local
community college where students can earn up to 14 college credits in approved courses. The
2010.04.07
Letter to Joseph W. Ambash
April 7, 2010
Pagc2
Program pays the college the cost of tuition for participants. The second phase of the program is
the Internship Phase which is for 6 months with placements made pursuant to agreements with
non-profit or for-profit businesses. It is the latter phase of the program on which you seek an
opinion from this office.
In addition to the overall internship program structure, you have also provided specific
information regarding internship placements with 5 area businesses and site-specific practices at
those business sites.
This letter will initially address your request for clarification of the criteria DLSE uses to
determine the trainee/intern exemption from the minimum wage law for enforcement purposes.
Then, a description of salient aspects of the internship program will be discussed followed by an
analysis of the program under the relevant criteria. The analysis portion generally addresses the
common features of the 5 placement sites described in your letter and will only identify a specific
placement site where appropriate to the analysis.
California L{tW Regarding Trainees and Interns
There is no state statute or regulation which expressly exempts persons participating in an

internship from the minimum wage and overtime requirements. The federal courts have noted, as
well, that the federal Fair Labor Standards Act (FLSA) itself provides little guidance in
distinguishing between trainees/interns and employees. (Reich v. Parker Fire Protection District,
992 F.2d 1023, 1025 (10th Cir. 1993).) Federal courts, however, have long interpreted the
definitional provisions under the FLSA as not including categories of individuals who perform
some work for others, but who are not "employees" and thus not covered under the Act.
The FLSA provides requirements for payment of minimum wages and other protections to
"employees."! The FLSA defines "employee" as "any individual employed by an employer" and
the term "employ" to include "to suffer or permit to work." (29 USC §203(e)(l)) The Supreme
Court long ago interpreted these definitions to conclude that the language does not make all
persons employees who, without any express or implied compensation agreement, may work for
their own advantage on the premises of another. (Walling v. Portland Terminal Co., 330 U.S. 148
(1947); Wirtz v. San Francisco and Oakland Helicopter Airlines, Inc., 370 F.2d 328 (9th Cir.
1966) [ stating same Portland Terminal principle].)
The State minimum wage requirements are set forth in various statutes and in Orders of the
Industrial Welfare Commission. (Labor Code §1171 et seq., IWC Orders 1 through 17) California
courts long ago recognized that the power of the Legislature and IWC to establish minimum wages
of employees contemplates existence of an employment relationship in order for the minimum
wage law to apply. (Hutchison v. Clark (1944) 67 Cal.App.2d 155, 160-161 [ cosmetology students
1
Among the purposes of the FLSA is to establish a national floor under which wage protection cannot drop. (Pacific
Merchant Shipping v. Aubry, 918 F.2d 1409, 1421 (9th Cir. 1990), cert den. 112 S.Ct. 2956.) The FLSA expressly
allows states to provide higher protections. (29 USC 218(a))
2010.04.07
April 7, 2010
Page 3
in training are not employees subject to IWC Order 2].) State provisions relating to coverage
similarly define "employee" to mean "any person employed by an employer" and the term
"employ" as meaning "to engage, suffer, or permit to work." (See e.g., IWC Order 4-2001, §2,
Definitions [8 CCR 11040 §2].) Based upon the similarity of the definitional provisions for
"employee" and "employ" which relate to coverage under the respective laws, and in view of the
similar purposes for the State and Federal minimum wage law generally, it is reasonable to look to
federal interpretations as guidance for purposes of enforcing the State's minimum wage and
overtime provisions where there is no inconsistency. (DLSE OL 2000.05.17 [DLSE applies federal
case law and interpretations of the FLSA where such interpretation is not inconsistent with state
law]; see also, Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 812-818; Ramirez v.
Yosemite Water Co. (1999) 20 Cal.4th 785, 798 ["where the language or intent of the state and
federal labor laws substantially differ, reliance on federal regulations or interpretations to construe
state regulations is misplaced"].)
DLSE has historically followed federal interpretations which recognize the special status of
trainees and interns who perform some work as part of an educational or vocational program.
Similar to the federal exemption from coverage, the effect of a sufficient showing that the
intern/trainee is enrolled in a bona fide internship or training program is that the trainee/intern falls
outside the coverage of the State's minimum wage laws. (See, DLSE OLs 1993.1.7, 1993.09.07,
1996.12.30, 1998.11.12, 1998.11.12-1, 2000.05 .17)
The federal Department of Labor (DOL) has articulated six criteria, derived from the
Supreme Court's Portland Terminal case, to be applied to determine whether a "trainee" is exempt
from FLSA's minimum wage coverage.2 (DOL OL 5/17/04 [criteria derived from Portland
Terminal].) The six criteria used by DOL are as follows:
(1) The training, even though it includes actual operation of the employer's
facilities, is similar to that which would be given in a vocational school;
(2) The training is for the benefit of the trainees or students;
(3) The trainees or students do not displace regular employees, but work
under their close observation;
(4) The employer derives no immediate advantage from the activities of

trainees or students, and on occasion the employer's operations may be
actually impeded;
(5) The trainees or students are not necessarily entitled to a job at the
conclusion of the training period; and
2
The listed criteria is also contained in DOL's Wage & Hour Manual (BNA) 91 :416 (1975) and in DOL/WH Field
Operations Handbook, Sec. lObl 1 (I 0/20/93).
2010.04.07
April 7, 2010
Page 4
(6) The employer and the trainees or students understand that the trainees or
students are not entitled to wages for the time spent in training.
DOL has consistently applied this test for trainees to determine the employment status of
student interns. (DOL OL 5/17/04, citing DOL OLs 5/8/1996, 7/11/95, 3/13/95, and WH
Publication 1297 [Employment Relationship Under the Fair Labor Standards Act].) The above
criteria must be applied in view of "all the circumstances" surrounding the intern's activities.
(DOL OL 5/17/04, 5/8/96 [ activities on premises of employer business].) The six criteria thus
provide for a consistent assessment of the "totality of the circumstances" necessary to determine
whether a trainee or intern is an employee or exempt from coverage. (Reich v. Parker Fire
Protection District, supra, 992 F.2d 1023, 1027.)
In the past, DLSE has articulated an "I I-factor test" which consisted of the 6 factors from
DOL's criteria interpreting federal law, plus 5 additional factors which are identified in Wilcox,
California Employment Law, §104[1](e).3 (See also, DLSE OLs 1998.11.12, 1993.10.21)
However, the 5 additional factors do not appear to be based upon any source statute or regulation
from which they derive nor are the additional factors identified with specific case law. More
recently, DLSE applied a 6-factor test for the trainee/intern exemption under an economic realities
test for determining an employment relationship where the 6 factors differed, in part, from the
above-stated 6 factors used by DOL.4 (DLSE OL 2000.05.17)
The DLSE has consistently applied federal interpretations of statutes, regulations, and case
law under the FLSA where there is no inconsistency with State laws. In this regard, the similar
definitions for "employee" and "employ" under the FLSA and State law manifest a consistency
which warrants similar interpretation. Since DOL's 6-point formulation is derived from the early
U.S. Supreme Court's opinion in Portland Terminal case and has been applied (with varying
3
The additional factors to be met under the historical I I-factor test by DLSE are as follows: (7) Any clinical training
is part of an educational curriculum, (8) the trainees or students do not receive employee benefits, (9) the training is
general, so as to qualify the trainees or students for work in any similar business, rather than designed specifically for a
job with the employer offering the program, i.e. upon completion of the program, the trainees or students must not be
fully trained to work specifically for only the employer offering the program, (10) the screening process for the
program is not the same as for employment, and does not appear to be for that purpose, but involves only criteria
relevant for admission to an independent educational program, and (11) advertisements for the program are couched
clearly in terms of education or training, rather than employment, although the employer may indicate that qualified
graduates will be considered for employment.
4
The 6 factor test in the DLSE opinion letter in 2000 stated: (1) whether the student is closely supervised during his
or her externship experience, (2) whether records are maintained with respect to on-hands training received, (3)
whether the student's on-hands training activities are directly related to the educational goals, (4) whether the student
replaces regular workers, (5) whether or not the student becomes an integral part of the principal activity of the
business in which the student extern was placed, and (6) whether the business activity derives any consequential
economic benefit from work performed by an individual. (DLSE OL 2000.05.17, citing Marshall v. Baptist Hospital,
Inc., 473 F.Supp 465 (D.C.M.D 1979), overruled on other grounds, 668 f.2d 234, and Souder v. Brennan, 367 F.Supp
808, 813 (D.D.C. 1973).)
2010.04.07
April 7, 2010
Page 5
degrees of deference) by the federal appellate courts.i' it is reasonable and appropriate for the DLSE
to look to the factors used by the DOL in determining the exemption for purposes of coverage of
State minimum wage coverage for trainees/interns in the absence of a State statute or regulation on
the matter.
It is, therefore, the 6 criteria derived from the Portland Terminal case that will be utilized
in evaluating the internship program described in your letter. We now turn from our discussion of
the applicable law to a description of the Program followed by an analysis under the applicable 6
criteria.
Initial Learning & Development Phase of Program
The organization's overall educational program is funded from a variety of sources.

Approximately one half of the funding is from a mix of contributions from individuals, foundation,
or corporations, and in-kind donations. The other half of funding is from the internships where
corporate partners are asked to financially sponsor the interns they take to train. The corporate
partners on average contribute approximately $875 per week per intern and such payment is critical
to the intensive training and guidance students receive during the L&D phase and for the tuition
payments made by the program to the local community college.
The organization recruits students to the overall program based upon word of mouth,
presentations at high schools, distribution of flyers, radio ads, and other media publicity. Students
are selected competitively on the basis of an application for admission, interviews, and learning
assessments to evaluate basic computer, writing, and communication skills.
Students who participate in the internship must first complete the first five-month Learning
& Development phase of the program which consists of 32 hours of college level instruction per
week in classrooms conducted by program-employed instructors. There is no cost to the student for
the educational courses and, upon completion, students receive up to 9 college credits through a
dual-enrollment agreement with a local community college.
Students receive an educational stipend of $153/week for the San Francisco Bay Area
which serves two purposes. First, it helps students cover living expenses while learning. The
stipend allows students the option of learning on a full-time basis which is consistent with
overcoming opportunity barriers to individuals from underserved communities who often must
divide their time between work and school.
5
E.g. Reich, supra, 992 F.2d at 1027 [six criteria are relevant but not determinative, affirmed judgment using criteria];
Atkins v. General Motors Corp., 701 F.2d 1124, 1127-1128 (5th Cir. 1983) [substantial deference].
2010.04.07
April 7, 2010
Page 6
The stipend is also used as a behavior modification tool throughout both phases of the
program.6 The stipend amount may be lowered for specific types of infractions of a code of
conduct which all students agree to follow. Under the point system for infractions, students who
are tardy, skip class, dress inappropriately, or behave inappropriately lose points pursuant to a
predetermined matrix which results in reductions to the stipend. Students have the opportunity to
restore their points over time when they do not receive infractions but the stipend cannot be
increased above the original amount. Significantly, reductions in a stipend attributable to
infractions have no effect on the sponsorship payment from the corporate partners who pay a fixed
amount.
As stated previously, under a dual-enrollment agreement with the local community college,
the Program's students earn a total of 9 college credits in courses meeting certain academic
standards required by the educational institution. The Program pays course fees to the college
under the dual-enrollment agreement. Courses during the L&D phase for which credit is earned
include Introduction to Computers, Using PCs, Computer Hardware, Operating System
Technology, Business Communications, and Professional Skills.
The Internship Phase of Program
Students successfully completing the first L&D phase of the program advance to the
internship component where they are provided work-based experiential training in information
technology (IT) as an application and further development of skills from the classroom instruction
received during the L&D phase.
The Program has "partner agreements" with local business with the purpose of providing
on-the-job training to student interns as a part of their educational experience. The agreements
provide for a (sponsorship) fee payable by the internship partner and invoiced by the program.
The partner agreement further describes the relationship with the student as follows: "The
intern is a full-time student in the [Program] and in a local institution of higher education. Because
the intern is participating in an educational program s/he is not considered an employee of [the
Program] or the Internship Partner. The intern receives a weekly educational stipend, paid directly
by [the Program]. The Intern shall not be expected to, or entitled to, participate in direct
compensation, health or disability insurance, retirement benefits, or other company welfare or
pension benefits (if any) to which employees of the Internship Partner may be entitled."
The partner business designates a supervisor, who is an employee, to train the interns and
the program surveys the supervisors throughout the internship. Internship hours are limited to 36
6
The point system has three main goals which: (I) ensures the students know the rules of the program and understand
that rule enforcement is predictable and fair, (2) ensures that all interns are working positively towards a common set of
goals, and (3) establishes a tool for learning the expected minimum standards of professional behavior by holding them
accountable for their actions and face consequences for their behavior. Students start with 150 points and gain or lose
points depending on their compliance with established rules of conduct. For example, if a student violates the dress
code on a particular day, s/he will lose 15 points. Ifa student gets to zero points, s/he is asked to leave the program. A
loss of points ties directly to a loss in dollars from the weekly stipend.
2010.04.07
April 7, 2010
Page 7
hours per week but no more than 40 hours. During the internship phase, interns also spend an
additional 2 class hours per week at the non-profit organization at an internship management class
for job skill development and support where participants receive up to 3 hours of college credits
(tuition is paid by the Program). Examples of internship activities include: Installing, repairing,
upgrading PCs and printers, virus investigation and removal, assisting with corporate LAN
consolidation and migration efforts, LAN deployments for new hires and internal team transfers,
imaging and configuring desktops and laptops, using diagnostic .tools to troubleshoot desktop,
laptop and peripheral hardware to resolve technical issues, and conducting reports using software
programs.
The participating student also signs an internship acceptance form where he or she agrees
to the expectations and consequences under the internship program requirements. The student
agreement states, in part: "I understand that I will be placed at a corporation for an unpaid
Internship as part of my educational experience at [the Program]. This Internship will allow me
on-the-job training to supplement the training and course work at [the Program]. During my
Internship I will continue to be a full-time student of [the Program] and will not be considered an
employee of [the Program] or the corporation. I understand my Internship is a training experience
and that I will not be entitled to a position at the corporation where I train."
The intern is required to submit weekly time sheets (signed by site supervisors) and status
reports describing the type of work done at the partner businesses. If an intern is asked to work
more than a specified number of hours per week, including class hours, they are to contact the
Manager of Internships at the program. The written Internship Procedures allows for 3 personal
days which may be used with appropriate advance notice and may be taken in half-day increments.
Interns can take a personal day six weeks after the start date at their sites.
The interns receive weekly-based educational stipends throughout the internship to assist
with living expenses and motivate participants to adopt professional behaviors through the point
system, as previously discussed. In the San Francisco Bay Area, the stipend rate is increased from
the $153/week amount during the L&D Phase to $250/week during the internship phase. The
stipend in San Francisco is higher than some other programs in other parts of the country to reflect
the higher cost of living in San Francisco.
A student's behavior impacts receiving stipend dollars as it does in the L&D phase. Thus,
points may be lost for violating written standards regarding such matters as arriving and leaving on
time and notification of lateness, regular attendances and notification of absences, business dress,
appropriate use of electronic devices, timely completion of assignments, timely submission of
accurate signed time sheets and status reports, attendance at all planned meetings with the program
and internship partner, respecting the law and the core values of the program and those of the
internship business site. There is no reduction in the sponsorship fee paid by the partner business if
a student's stipend is reduced for infractions.
Students receive up to an additional 4 college credits through the local community college
for participating in the internship program in computer technical support (3 credits) and internship
work experience (1 credit).
2010.04.07
April 7, 2010
Page 8
Upon successful completion of the internship phase, students receive a Computer

Networking and Information Technology (CNIT) Computer Technician certificate which is a
marketable credential. The certificate is offered through the local community college which also
issues it to its own students who receive similar training arranged through the college. The
certificate prepares students to take the Computer Technology Industry Certification (CompTIA)
test for A+ industry certification as a next career step.
Application o(Enforcement Criteria to the Educational Interns/tip Program
(1) The training, even though it includes actual operation of the employer's
facilities, is similar to that which is given in a vocational school.
The overall program describes the participants as "students" who are dually enrolled in the
job skills development program and the local community college. The program further describes
the study program as providing specific training in computer technology training that is beyond the
end-use of computers. The internship phase of the program appears to be a continuation of the
learning and development phase with both phases developing individual discipline, basic job skills,
and applied knowledge in computer technology. The training is tied to earning college level credits
through an academic program with a community college during both core phases of the program.
This criterion contemplates that the training will, to some degree, include operation of the
employer's facilities which recognizes that "hands on" experiential training requires use of the
employer's facilities. Thus, an intern's use of the employer's computers, network systems, and
tools to perform tasks is permissible provided that such use of facilities is directly related to
training and the educational and vocational objectives of the program.
There appears to be a sufficient level of technical training in computer hardware and

software applications in the internship phase of the program which applies previous and on-going
classroom instruction with focus on real world applications and working environments. Training
includes both "hard skills" of IT systems support and "soft skills" of professional behavior and
etiquette which are more specifically described in your letter and vary amongst placement sites.
The training appears to provide educational experiences not typically available in the classroom
and similar to a vocational school.i
The fact that the internship is not directly administered by a vocational or educational
institution is not determinative because the criterion addresses the "similarity" of the training with
that given in a vocational school. In this case, the descriptions of the class instruction, the
described activities at the placement sites, and certification for completion of the program are
sufficiently similar to that provided in vocational programs.
7
DLSE does not approve programs under vocational or academic standards for purposes of this analysis. The inquiry
is limited to determining the nature of the training/internship program for purposes of determining whether California's
wage and hour laws apply to these interns.
2010.04.07
April 7, 2010
Page 9
Based upon the information provided, the internship program satisfies this criterion.
(2) The training isfor the benefit of the trainees or students.
DOL has recognized that an internship inures to the benefit of the students who receive
college credit for performing the internship even though it is not a required program. (DOL OL
5/17/04). DOL has also found that a training program "primarily" benefits the students where they
observe the practical application of the classroom instruction in the workplace. (DOL OL 4/6/06
[externship program in various careers].) However, the student must derive more than "some"
benefit from exposure to the workings at the placement site so as to enhance their marketability in
the vocational area. (See DLSE OL 1998 .11.12) fj ournalism interns performing activities beyond
that which would be included in a journalism program].) Conversely, where there is a
"predominant" benefit to the student, there is generally no employment relationship. (DOL OLs
3/13/95 [insufficient information for determination of college interns], 7/7/77 [pharmacy student
clinical externship not employees].)
The educational program serves young adults who have not progressed beyond a high
school diploma or GED certificate. Its core objectives are development of basic job skills and
workplace discipline, and technical training in computer technology. To that end, the internships at
the 5 placement businesses provide each intern with up to 36 hours of training per week and the
program provides two hours per week of a class (Internship Management) for which interns receive
both college credits and a marketable computer technician certificate upon successful completion.
During the internship, the Program continues to provide college and career readiness
resources such as advisors, business mentors, guest speakers, social workers, career counselors,
and assistance with financial aid applications. Some of these services are through partnerships with
other social services organizations as well as a full-time on-site social worker to assist students
with issues that arise during their internship.
The internship phase of the program provides for both observation and application of
classroom instruction for the young adult interns to succeed in a computer vocation. The internship
training activities and additional other services provided by the Program during the internship
appear to be directly tied to the core components of the educational objectives which
predominantly benefit the interns.
(3) The trainees or students do not displace regular employees, but work under
their close observation.
DLSE has, at times, previously interpreted the non-displacement criterion strictly to mean
that any work performed by an employee that could be performed by a regular worker would not
satisfy this factor.i Thus, whenever an intern would perform any described tasks that could be
8
One previous DLSE letter set forth a "but for" test such that "but for" the utilization of interns, the employer would
have to hire additional employees or pay existing employees for tasks performed by the interns. (DLSE OL 1998.11.12
[factor not met for journalism interns performing clerical, research and accounting tasks].)
2010.04.07
April 7, 2010
Page 10
performed by other workers, e.g. minor clerical, incidental administrative work, etc., the test would
not be met and the trainee exemption could not apply. An overly strict interpretation of the factor
which fails to recognize both the dynamic real world environments interns are placed and the
objectives of the internship program could easily operate to render nearly all bona fide training and
internship programs invalid under applicable wage and hour laws. However, if the educational
goals or objectives of an internship program include exposure to real world working environments
(to a similar extent as the recognition that a trainee's activities may result in the operation of an
employer's facilities under the first criterion), occasional 01· incidental other work by the intern
should not defeat the exemption so long as such work does not unreasonably replace or impede the
educational objectives for the intern and effectively displace regular workers.
A more recent DLSE letter stated that the non-displacement factor requires that the tasks
performed must be "directly pertinent to his or her education only" and the activities performed
should not be "an integral part of the [business'] activities from which the [business] derives a
substantial economic benefit. (DLSE OL 2000.05.17 [applying variation of criteria to determine
employment relationship of culinary externs].) Our office views this formulation as providing an
analytical approach to the non-displacement language under this criterion and not necessarily
separate criteria with independent significance. Consistent with the overall determination to be
made under the totality of the circumstances, no bright line exists and the impact to which minor or
incidental work will have upon the trainee or internship will, of course, depend on the facts.9
The non-displacement language is joined with "close supervision" language under this
criterion which, taken together, underscores that the actual role of the trainee must be one which
necessarily requires close supervision rather than performing substantial independent work which
can be performed by regular workers. If a trainee or intern is loosely supervised, there is more
likely an employment relationship (DLSE OL 1998.11.12) On the other hand, substantial
supervision may offset any advantage perceived to be received by the employer (DOL OLs
3/13/95, 1/28/88.) and may demonstrate the role of the intern or trainee as the true recipient of the
benefits of experiential training consistent with the Program's educational requirements and
objectives.
The agreement between the Program and its internship partners who provide on-site
placements at the latter's businesses states that interns will not displace regular workers. Your
letter also indicates that each of the business placement sites has confirmed that regular workers
have not been displaced as a result of the placement of interns. Regarding non-displacement,
however, a showing requires more than such representation that no regular employee was replaced
by a trainee. Rather, the nature of the activities to be performed by the intern must be examined to
determine whether the training activities bear a direct relationship with the educational or
vocational objectives and do not unreasonably intrude into activities which could be performed by
regular workers who would be subject to compensation for such work.
9
The impact of other minor tasks or incidental work is also relevant to the fourth criterion as discussed infra.
2010.04.07
April 7, 2010
Page 11
In addition to the Program's partnership agreements which represent that there will be no
displacement of workers as a result of the intern's activities and the more recent representation by
the businesses confirming those facts, your letter acknowledges that "interns perform services that
may be parallel to the service provided by Company ... employees working in the type of position
for which the intern is training."
You state that the interns "are not viewed as employee substitutes and are monitored,
evaluated, reviewed, and considered as the students they truly are." This statement is supported by
the supervision structure at the program sites where both supervisors directly train one-on-one
(ranging up to 10-15 hours per week per intern), serve as a resource for the intern at other times
answering questions, monitor intern's activities, and provide weekly evaluation and feedback on
the interns customer service and business professional skills. In addition to observation by
supervisors, indirect training and mentoring every day is provided by regular employees in the
activity area in which the intern is training.
Except for Company C, the other four business placements generally provide one assigned
supervisor for each intern and also utilize other employees who are shadowed by the intern or
otherwise assigned to train or mentor in activities performed by the intern. Supervisors are required
to attend an orientation session where the Program communicates the requirements for the
educational training and the Program regularly surveys supervisors and visits business partner sites
to ensure students are participating in meaningful internships.l"
Regarding interns placed at Company C who appear to have a larger supervisor to intern
ratio, the supervisor generally spends the same number of hours with each intern and other
employees are delegated to interns to provide mentoring and training as at other placement
businesses in the Program.
Rather than displacing regular workers, the interns at all placements appear to require and
rely upon their supervisors directly and other regular workers indirectly to acquire and learn the
skills necessary for the described activities. Additionally, the extensive level of observation of the
interns by the businesses' employees at the various placement sites demonstrates that the interns
are performing in accordance with the educational objectives and shows that an assigned
supervisor (employee) is required to and actually performs sufficient supervision of the interns
work.
The six month duration of an internship is not unlike a semester-long internship through a
regular educational institution. Since the business sites have their full complement of workers prior
to and after interns are placed, the modest time period interns are placed at the sites for technical
training (most likely in their first real-world experience) makes their contribution to the business'
service somewhat limited and appropriately monitored by the business.
LO Also, the local community college which grants college credits for the Program's interns has representatives make
on-site visits to confirm that the students are performing the types of technical activities required for receiving college
credit. These visits are similar to those which the college makes to verify training activities for its own non-Program
students earning credits at other companies.
2010.04.07
April 7, 2010
Page 12
Based upon all of the above facts, and in view of the extensive supervision of interns by
assigned on-site employees and monitoring of the interns activities site by the Program and local
college, there is no displacement of regular workers at placement sites where students perform
internship activities.
(4) The employer that provides the training receives no immediate advantage from
the activities of the trainees or students and, on occasion, the employer's
operations may even be impeded.
With regard to this criterion, DOL has indicated that where the "predominant benefit" is to
the student, no employment relationship will exist. (DOL OLs 7/7/77, 3/13/95) On the other hand,
where trainee/interns are placed in a business and the activities performed are directly performing
the main work of the business, such interns are stepping in the place of a worker and the employer
may likely gain an immediate (economic) advantage as a result. (E.g., DOL OL 3/24/94 [interns
assisted in daily operations and general duties in youth hostel; Mcl.aughlin v. Ensley, 877 F.2d
1207, 1208 (4th Cir. 1989) [ where trainees are required to work alongside regular employees and
perform all job duties without any learning opportunity, the employer is essentially using trainees
to get work done that they otherwise would have to pay an employee to do].)11 However, isolated
instances of performing activities not directly related to training (and ordinarily compensable) may
be de minimis. (Atkins v. General Motors Corporation, 701 F.2d 1124, 1129 (5th Cir. 1983)
[isolated instances of activities such as general cleaning and uncrating machinery were de
minimis].)
The key language in this criterion is whether the advantage or benefit the employer receives
is immediate. Where the training activities involved increased responsibility near the end of the
training but trainees are still supervised throughout the period and do not assume the duties of
regular workers, there is no immediate benefit to the employer. (Reich v. Parker Fire Protection
District, supra, 992 F.2d 1023, 1028; see also, DOL OLs 1/28/88, 3/13/95 [substantial supervision
may offset any advantage perceived to be received by employer] DLSE OL 1998.11.12. [if interns
are loosely supervised, an employment relationship may be found].)
Additionally, the educational validity of the training program may be relevant to the
calculus of relative benefits under this factor (Reich, supra, 992 F.2d at 476) which serves as a
reminder that the context of the inquiry depends upon all the circumstances surrounding the
interns' activities including consideration of the educational and vocational objectives of a
program.
11
Both DLSE and federal cases have previously noted that the exemption will not be found where the intern's
activities become an integral part of the business' activities and the business derives any consequential economic
benefit from the intern's activities. (DLSE OL 2000.05.17, citing Marshall v. Baptist Hospital, Inc., 473 F.Supp 465
(D.C.M.D. 1979) [x-ray technician trainees performed all duties of regular employees and minimally supervised] and
Souder v. Brennen, 367 F.Supp 808, 813 (D.D.C. 1973) [patient workers in mental hospitals performed work for which
they were in no way handicapped and institution derived some consequential economic benefit which indicate an
employment relationship under economic reality test].)
2010.04.07
Letter to Joseph W. Am bash
April 7, 2010
Page 13
Here, the educational validity of the training provided to the Program's interns establishes
that interns predominantly benefit from the training at all business sites since the internship follows
an intensive classroom phase and provides an opportunity for further learning in the application of
previous and continuing instruction for which college credit is earned by the student.
The Program has listed the types of activities performed by interns at the five placement
sites with examples of hardware and software installation/configuration, repair and preventative
maintenance of PCs and related systems, trouble shooting, virus detection and removal, etc. The
Program acknowledges that the various businesses may receive incidental benefits from the tasks
interns perform while practicing their skills (especially towards the end of the internship period)
and may indirectly benefit from goodwill generated through corporate social responsibility. It
maintains, however, that any advantage is outweighed by the burden the businesses assume as a
corporate partner in the Program and that any benefit or advantage is not immediate.
The performance of the described tasks performed by interns at the placement sites has
some benefit to the placement business. This is natural and expected insofar as some work is being
done to maintain the business' information technology based systems. The described activities,
however, are consistent with the course curriculum provided in the previous L&D phase and the
Program's overall educational objectives and certification which are transferable within the
industry, It appears that an individual would only be qualified to perform productively as an
employee at the business sites only upon completion of the internship, after which an intern is
issued a computer technician certificate.
Moreover, the described supervision of the on-site activities performed by interns and the
ongoing training and mentoring by other regular employees, as discussed previously, demonstrates
substantial supervision of the intern's activities. Additional monitoring and visits by the Program
and local college to verify the educational training components at the placement contributes to the
educational integrity of the internship program. Such direct supervision of interns and monitoring
of the internship ensures that interns are neither treated nor have the same duties as regular
employees, but simply are regarded as students provided with an opportunity to learn skills in
information technology and professional behaviors which are targeted skills under the Program.
The substantial structured supervision and informal observation of interns by other workers thus
offsets any perceived advantage the businesses receive in the activities performed by the Program's
interns. (DOL OLs 1/28/88, 3/13/95 [substantial supervision may offset any advantage perceived to
be received by employer].)
Due to the interns' inexperience, any perceived benefit the businesses receive in
performance of tasks is not likely realized until the latter period of the internship. Yet, the
supervision continues throughout the internship period. (See Reich, supra, [no immediate benefit if
trainees supervised and do not assume duties of regular employees].) Further, any such limited
benefit is counter-balanced by impediments to the employer's operations in both time and
economic costs in teaching the intern the activities, reviewing any work performed as well as
immediate economic costs to the business in participating in the program. Specifically, the
Program asserts that all internship partners incur substantial supervision costs which involves time
2010.04.07
April 7, 2010
Page 14
taken away from and impeding their regular duties. Other employees are also imgeded in their role
2
in training and mentoring which lowers productivity of the affected employees. Each supervisor
also incurs additional commitments such as attending the Program's orientation sessions for their
training, biweekly calls from the Program's internship team, completion of written surveys twice
per internship cohort for each intern and hosts 1-2 on-site visits from the Program.13 Additionally,
each partner business contributes over $22,000 to sponsor each intern for the duration of the 6
month internship period.14
Based upon the above, the partner businesses derive no immediate advantage from the
activities of interns and sponsorship of interns is a clear burden and impediment to the operation of
the partner businesses.
(5) The trainees are not necessarily entitled to a job at the conclusion of the
training period.
The inquiry under this factor is aimed toward the time period of the training and up to its
completion. Federal interpretations of this factor, including the seminal case of Portland Terminal
Co. (FLSA not intended to penalize employers for instruction that will greatly benefit trainees),
clearly recognize that employers may offer training programs for reasons which include training of
novices and assessing potential employees. (See, Donovan v. American Airlines, Inc., 686 F.2d
267, 272 (5th Cir. 1982); Reich v. Parker Fire Protection District, supra, 992 F.2d at 1028, fn. 1.)
The Program here requires participants to sign an acceptance form for both the L&D and
internship phases of the program. The L&D phase acceptance form expressly states that an
internship is not guaranteed and the internship phase acceptance form states that interns are not
necessarily entitled to a position at the corporation where the intern is trained. Additionally, the
partnership agreement between the Program and partner businesses states that "interns are not
necessarily entitled to a job ... at the conclusion of the training period." These pre-program forms
12
In addressing a university externship program where a student "shadows an employee" and is designed to expose
students to various careers, DOL stated: ... the sponsor's need to assign a shadowed employee means the sponsor does
not receive any tangible benefit and may in fact lose productive work from the employee assigned the student." (DOL
OL 4/6/06)
13
The partner businesses estimate that their employees spend the following totals for supervisor hours due to
participating in the internship program: Company A - 1,249 hours for 14 supervisors (15 interns), Company B - 350
hours for 7 supervisors (8 interns), Company C - 200 hours for l supervisor (5 interns), Company D - 1,320 hours for
4 supervisors ( 4 interns), Company E - 96 hours for I supervisor ( 1 intern). Additional hours spent by other employees
of the businesses who spend time on an ongoing basis training and mentoring the Program's interns are not tracked by
the Program.
14
The sponsorship contribution is used to pay both the direct costs of the L&D phase and fees owed to the community
college for college credits under the Program's dual-enrollment agreement.
2010.04.07
Letter to Joseph W. Arnbash
April 7, 2010
Page 15
executed by the student participants and the partner businesses make it sufficiently clear that
trainees are not entitled to positions at the conclusion of the internship training phase. 15
The Program provides some evidence that some interns are subsequently hired by the
business partners following their internship. This fact, however, does not defeat satisfaction of this
factor which is focused on the time up to completion of the training period. The Program has taken
the above-described steps to make it clear to interns at the outset their non-employment status both
during and upon the completion of the internship period. Additionally, there is no evidence that the
application and criteria for acceptance to the Program itself is in any way intended or perceived as
a mechanism for application and screening by the business partners who have offered employment
to interns subsequent to completion of the Program.
(6) The employer and the trainees or students understand that the trainees or
students are not entitled to wagesfor the time spent in training.
Generally, students who perform work in the course of their studies, as part of the
curriculum, are not employees if they receive no remuneration or credit toward fees. (DLSE
Manual, §43.6.8, citing DLSE OLs 1993.10.21, 1993.01.07-1) This factor seeks to determine any
expectation of the trainee to receive payment of wages (or other benefits constituting
compensation) for performing training activities.16
The Program's materials describe and the student internship acceptance form states that "I
understand that I will be placed at a corporation for an unpaid internship as part of the educational
experience at [the Program]." Additionally, each business partner signs an agreement that states
that "the trainees are not entitled to wages for time spent in training" and that the company "shall
have no obligation to pay any amounts to the Program or others as a result of the Program except
[the specified sponsorship fees]." The Program further represents that none of the Program's
interns have ever received any wage, commission, salary, or bonus for the time spent during the
internship
15
On the other hand, the Program utilizes some verbage in its program materials (radio ad and Internship Management
Class) which essentially describes the training as an "apprenticeship." However, this word does not appear to be used
as a term of art which could raise some ambiguity over the student's status during the training period. In any event, the
other program materials and forms executed by students and corporate businesses refer to "internship" and the overall
structure of the program is clearly that of an education-based internship such that the solicitations are effectively for
training and not for employment.
16
Agreements or other statements by trainees that they will not be paid for their activities do not constitute a waiver of
protections under the FLSA but are relevant only insofar as it shows the expectations of trainees for purposes of this
factor. (Donovan v. American Airlines, Inc., supra, 686 F.2d at 269, fn 3; Reich v. Parker Fire Protection District,
supra, 992 F.2d at 1029, fn. 2). Under State law, the minimum wage law is similarly protected against waiver. (Labor
Code § 1 l94(a).) The inquiry in the above discussion seeks only to determine the exemption from coverage of the
minimum wage laws for trainees/interns who are not regarded as employees.
2010.04.07
April 7, 2010
Page 16
While the above language is clear with respect to payment of wages, the intern does receive
an "educational stipend" during their internship which must be examined. Such examination is
appropriate to address the source of the stipend and variations in amounts for interns based upon
the described point system. The educational stipend is described as serving two purposes: 1) to
help students cover living expenses while learning and 2) as a behavior modification tool where
points are either lost for violations of an established code of conduct or restored over time when
students do not have infractions.
DOL has noted in opinion letters that "the payment of a stipend to the interns does not
create an employment relationship under the FLSA as long as it does not exceed the reasonable
approximation of the expenses incurred by the interns involved in the program. (DOL OLs 5/8/96,
7/17/95.) The stipend is paid to students during both phases of the Program and the amount during
the internship phase is $250 per week 17 and is intended to allow students from underserved
communities to learn on a full-time basis. The educational stipend is established, administered and
paid directly by the Program to the students, i.e., no amounts are paid to the interns by the
corporate employers.
The amount of the stipend can only be lowered by application of the Program's point
system which students are subject to throughout both phases. A critical objective of the point
system is to develop general job skill behaviors to maximize success in job and career endeavors
and to discourage behaviors such as tardiness, skipping class or training, dressing inappropriately,
or behaving inappropriately in violation of an established code of conduct of which all students are
made aware. Significantly, the Program states that while stipend amounts may be lowered for
infractions (and may be restored over time for no infractions), the stipend amount never exceeds
the established amount ($250/week). This effectively ensures that the stipend amount paid to
interns during the internship does not exceed the amount previously established for helping
towards reasonable expenses incurred by interns. Further, it appears that the Program's own
requirements and standards determine the infractions, point values for the types of infractions, and
actual reductions which are directly related to the educational objectives of the Program.18 Thus,
the corporate partner does not have significant control over administering the point system, nor, in
ultimately determining reductions from the educational stipend amount.
Notably, any decrease in the stipend a student receives does not reduce the amount of the
fee the partner businesses pay to the Program for sponsorship. The sponsorship fee amounts paid
by the corporate partners also do not appear to be directly tied to the educational stipend other than
17
During the L&D phase, the educational stipend is $153/week. The program explains the increase for the internship
phase as necessary to cover increased travel expense and professional dress-related costs while on internships. The
stipend amount is higher in San Francisco than at other Program sites across the country to reflect the higher cost of
living in the area.
18
The point system appears to create a behavior modification tool aimed solely at developing important general work
place behaviors which are not necessarily tied to the interns actual training activities but promote behaviors enabling
students to be disciplined and successful in maintaining a job. On this basis, the ability of the Program to lower the
educational stipend for an intern should not be considered a form of remuneration for training activities.
2010.04.07
April 7, 2010
Page 17
to provide a significant source of funding for the Program in general. The sponsorship fee amounts
to approximately $22,000 per intern while the entire stipend students receive over the 11-month
period is approximately $9,500.
Since the educational stipend amount here is a modest contribution towards living and
other expenses incurred by interns (and is received during both phases of the Program), it neither
constitutes direct nor indirect payment in the form of wages or other remuneration.for the activities
performed by interns at the corporate partner site.
Based upon the above analysis and in view of the totality of the circumstances described in
your letter, DLSE concludes that the Program's internship satisfies the 6 criteria.19 Thus, the
interns would appear to be exempt from California's minimum wage law. Of course, the facts of
any new intern placement which vary from your letter must continue to be reviewed on a case by
case basis.
This opinion is based exclusively on the facts and circumstances described in your request
and is given based upon your representations, express or implied, that you have provided a full and
fair description of all facts and circumstances that would be pertinent to our consideration of the
questions presented. The existence of any other factual or historical background not contained in
your letter might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private litigation concerning the
issues addressed herein. You have also represented that this opinion is not sought in connection
with an investigation or litigation between a client or firm and the Division of Labor Standards
Enforcement.
I hope the above sufficiently responds to your request for an opinion in this potentially
confusing area of employment law and thank you for your interest in ensuring compliance with
California's wage and hour laws.
r .•
• S_)_ncerely yours,~~7
(
, .., .,/)./. '.A
~c-~·-...._..,, I
,.'
e:·, ~-···-··
David Balter
Acting Chief Counsel
cc: Angela Bradstreet, Labor Commissioner
19
The above analysis does not include a discussion of the additional 5 criteria previously used by DLSE under the
discontinued historical 11 -factor test (see, Footnote 3, supra). However, the ultimate conclusion would be the same had
the discontinued additional factors been taken into account. The training is part of an educational curriculum since the
students are dually enrolled in a local college during the internship period and receive college credits upon completion
(Factor 7); the students do not receive any employee benefits during the internship (Factor 8); the training is
sufficiently general and, upon completion, students receive a computer technician certification for use in the industry
rather than providing training designed specifically for a job with the corporate partners (Factor 9); the screening
process for enrollment in the Program is not the same as for employment in that the Program selects students on the
basis of an application for enrollment from a population of underserved young adults, interviews, and a learning
assessment for evaluation of basic computer, writing, and communication skills (Factor 1 O); and advertisements are
clearly couched in terms of education or training, rather than employment (Factor 11; see also, footnote 15, supra)
2010.04.07
EXHIBIT D
ST AT E O F C ALIF OR NIA PETE W ILSON, Governor
D E P A R T M E N T O F IN D U S T R I A L R E L A T IO N S
DIVISION OF LABOR STANDARDS ENFORCEMENT
L E G AL S EC T IO N
455 Golden Gate Avenue, Room 3166
San Francisco, CA 94102
(415) 703-4150
H. TH OMA S CAD ELL, JR ., Chief Counsel
January 7, 1993
Wayne D. Clayton
O'Melveny & Myers
400 South Hope Street
Los Angeles, CA 90071-2899
Re: Vocational Trainees
Dear Mr. Clayton:
The Labor Commissioner has asked this office to respond to

your letter of November 20th, 1992, regarding the training program
your client, a nonprofit service-provider wishes to inaugerate.
You explain that the program will teach skills, at varying
levels, to homeless or near-homeless young adults. In addition to
the current program which includes individual and group counseling,
schooling and tutoring, vocational counseling, a life-skills
workshop, pro bono legal representation and recreational/cultural
activities, the program anticipates engaging in training which will
include on-site "hands-on" experience with "trainer businesses". It
is in regard to this latter training that you seek guidance.
You letter correctly states the Division policy regarding such
programs. It is simply a matter of applying those policy statements
to the factual situations which arise. It is not possible for the
Division to find that in each and every case, based upon the nature
of the Program and the design of the vocational training component,
that a student participant will be a "trainee" exempt from the
minimum wage requirements under California law.
As you state, the Program will have only limited oversight

over the participants while they are engaged in the on-site portion
of their training with the private employers. The description of
the program sounds like any on-the-job training project. The 6- to
8-week training program your letter describes for the "offset
printing" trade would rival that of many small offset shops. While
the program could not be considered a full apprenticeship, it
appears that the training goes far beyond that anticipated in the
DLSE "training" exception.
Wayne D. Clayton
January 7, 1993
Page 2
Your reliance on federal law in this area is misplaced. What

the federal cases you cite interpret are the provisions of the
federal Code of Federal Regulations. The court in Alcala v. Western
Ag Enterprises (1986) 182 Cal.App.3d 546, was not speaking of the
interpretation of regulations adopted by the Department of Labor,
but of the interpretation of the language of the Fair Labor
Standards Act. As the court stated in DLSE v. Texaco, Inc. (1983)
152 Cal.App.3d Supp. 1, 9; 199 Cal.Rptr. 561 "[u]nder settled law,
the federal cases, although entitled to "considerable respect," are
not binding on this court, Kahn v. Kahn (1977) 68 Cal.App.3d 372,
387, 137 Cal. Rptr. 332. State courts are, of course, always the
final arbiters of the meaning of state law. (Meanley v. McColgan
(1942) 49 Cal. App.2d 203, 209, 121 P.2d 45.) Since the question
revolves around the application of the California minimum wage, the
interpretation by the DLSE is given great weight by the courts.
Skyline Homes v. Department of Industrial Relations (1985) 165
Cal.App.3d 239; 211 Cal.Rptr. 792; 166 Cal.App.3d 232(c) (hrg. den.
5/29/85) You should be aware, in this regard, that the definition
of "Hours Worked" for purposes of the Fair Labor Standards Act
differs substantially from the definition found in the California
Industrial Welfare Commission Orders.
This letter is not intended to endorse or condemn the Program

which you have proposed in general terms. The purpose underlying
the Program is laudable, but that is not the criteria. We have
raised some questions for your consideration. It may be possible,
with close supervision of the on-site training of the participant
by the Program personnel, to meet the requirements for an exception
to the minimum wage.
However, the Division feels that it can not give blanket
approval to a training program which is described in general terms,
involves a number of undisclosed trainers and training sites and
which has not yet been implemented.
If we may be of assistance to you in implementing a training
program which will meet the requirements of an exception to the
minimum wage obligation, please direct your questions to the office
of the Labor Commissioner here in San Francisco. We can set up an
appointment for one of our Deputies to inspect the worksite and
review the program.
Yours truly,
H. THOMAS CADELL, JR.

Chief Counsel
c.c. Victoria Bradshaw

Complaint Served

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Q., 5.

Gregory ~s Steshenko, Plaintiff

4 1. Plaintiff, Gregory Steshenko, is a long-term unemployed engineer pursuing professional

19 college, in violation of California law.

25 experience were sent to the “externships” instead.

3 secure the “externship.”

17 the State of California. Plaintiff studied at defendant De Anza College.

22 Anza’s acts and omissions party.

28 “individual college defendants.”

13 the course1. They are sued in their individual capacities.

2 thereafter referred to as “clinical laboratory defendants.”

6 program and its affiliates.

8 The “externship” is college defendants’ internal design intended to benefit defendants.

13 equipment, De Anza’s staff conducts the training.

19 hereto are as follows:

20 (a) Placement for the “externships” is a “competitive process” completely managed by

25 the clinical laboratories in De Anza’s “externship” program;

25 good fit for it.

2 phlebotomy experience was assigned instead.

8 56. After numerous unanswered attempts to communicate with college defendants2, on

14 B, reiterating the foregoing defendants’ conditions of the “externships.” According to Ranck, as

28 continued till August 8, 2017.

13 College defendants failed to take any corrective action.

23 LEGAL FRAMEWORK FOR OPERATION OF MLT PROGRAMS IN CALIFORNIA

24 Requirements for MLT Training Programs under California Law

13 responsibility for which lies solely with the MLT program.

14 Methods of Lawful Operation of the Direct Work Part of an MLT Program

25 training program pursuant to Cal. Labor Code § 3092;

8 §205(e). An apprenticeship program is administrated and operated by the program sponsor

9 (usually the employer). 8 CCR §§ 205(g) and 218.

15 205(f), 212 and 212.2.

2 78. An internship is a planned series of educational training activities, paid or unpaid, in

3 a particular occupational field. Cal. Ed. Code § 79144(c).

9 Other Training Programs

15 MLT Students’ Service Work at the Clinical Laboratories Presumably Constitutes

18 presumed to be an employee." Cal. Labor Code § 3357.

3 LEGAL FRAMEWORK FOR AN AGENCY IN CALIFORNIA

8 persons. Such representation is called agency.” Cal. Civ. Code § 2295.

8 89. “An agency may be created […] by a precedent authorization or a subsequent

19 training. A state phlebotomy technician’s license is a pre-requisite to the program.

25 94. An “externship” is a half-a-year unpaid full-time on-the-job training program that De

26 Anza requires for graduation from its MLT program.

13 authorized by Cal. education law.

3 further permanent employment.

8 personnel and are exploited as the unpaid skilled licensed workforce.

19 103. Access to education is a “uniquely fundamental personal interest in California” and

26 Cal.3d at p. 8, 95 Cal.Rptr. 329, 485 P.2d 529.

12 Cal. Constitution, Article IX, §8.

17 activities.” Hartzell v. Connell, 35 Cal. 3d 899 (1984).

3 for any other academic course. It is funded by public money.

14 outsourcing of its MLT program is unlawful.

2 the students barter their skilled labor for graduation.

8 course required for graduation.

13 California Law Doesn’t Authorize “Externships” Operated by Community Colleges

14 122. There is no legal basis for the notion of an “externship.”

2 and supplemental instruction.

3 126. As shown above, De Anza Community College is not authorized to establish an

14 the employees of the laboratories that should be paid.

2 discrimination at them is illegal.

19 action for damages. Cal. Ed. Code §§ 66292.3 and 66292.4.

2 11135, 11139 and under Cal. Ed. Code § 66292.

18 employment and training programs conducted on their grounds is illegal.

25 147. Age discrimination by itself is a subject to punitive damages. Stephens v. Coldwell

2 hardship in conscious disregard of [plaintiff’s] rights,” hence it is oppressive pursuant to Cal.