Calvo v. Summit Broadband Inc., et alMOTION for summary judgmentM.D. Fla.February 6, 2019 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DAVID CALVO, Plaintiff, vs. SUMMIT BROADBAND INC. et. al., Defendants. _____________________________________/ CASE NO. 2:16-cv-746-UA-MRM DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant Summit Broadband Inc. (“Summit”), by and through its undersigned counsel and pursuant to Fed.R.Civ.P. 56, hereby moves for summary judgment and states as follows: I. STATEMENT OF MATERIAL FACTS 1. Summit is a fiber-optics telecommunications provider in Central and Southwest Florida providing cable, telephone, television, and internet to its customers. [L.,¶3]; [H.,¶3]1. 2. Summit engaged Qualified Cable Contractor, LLC (“QCC”) to provide services in the homes and businesses of Summit’s customers pursuant to the “Master Service Agreement” (the “MSA”). [L.,¶6]. 3. QCC and Summit do not share any common ownership or management, or control over one another. [id. at ¶5, 7]. 4. Summit’s customers were the end users of its equipment and services and did not resell the services and equipment. [id.]. 5. 95% of Summit’s dollar volume of the sale of goods or services is not for resale. [L2., ¶11].2 1 The declarations of Mark Lipford, the COO of Summit, and Mike Hall, Calvo’s QCC supervisor, were filed on October 6, 2017. [Docs. 87-1; 87-2] and will be referred to as “L.,¶___” and “H.,¶___.” Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 1 of 520 PageID 637 2 6. Nothing in the MSA prevents or prohibits QCC or its employees from seeking out other work [Doc. 16-1,¶4] and because QCC was only one of many to compete to perform work for Summit, it could and did maintain engagements or employment with other companies. [L.,¶20,22]. 7. QCC engaged technicians to perform the work associated with the MSA and the technicians were required to have special skills, including the ability to install and repair fiber- optic or coaxial wiring and cable equipment. [id. ¶8,21]. 8. Summit relied on QCC to hire technicians who possessed the necessary skills and does not know the identity of the individuals and could not produce a list. [id.] 9. The MSA provides that Summit shall have no control over the QCC’s technicians. [Doc. 16-1]. 10. Technicians were exclusively under the control of QCC. [id. at ¶10.06]. 11. Plaintiff David Calvo (“Calvo”) was one such technician. [H.,¶2]. 12. Calvo applied to work at QCC and did not apply with or submit any application to Summit. [P.D., 58:8-10]3. 13. Calvo speculates that QCC submitted technicians’ applications and background checks to Summit, but also admits that he does not know what QCC actually did and only assumed otherwise. [id. at 58:14-24]. 14. Summit relied solely on QCC to vet the technicians, including performing background checks and drug testing. [L.,¶18]. 2 The second declaration of Mark F. Lipford, the COO of Summit, filed in connection with the instant motion, will be referred to as “L2., ¶___.” 3 The deposition of the Plaintiff David Calvo taken on September 22, 2017 and filed on October 6, 2017 [Doc. 88-1], will be referred to as “P.D., __.” Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 2 of 520 PageID 638 3 15. Calvo was skilled and knowledgeable and worked for QCC from October 16, 2014 to June of 2015. [Doc. 56,¶1]; [H.,¶12,2]. 16. Calvo performed three kinds of jobs: (1) initial installation of cable internet, television, or telephone equipment for new Summit customers, (2) service calls to existing Summit customers, and (3) “surveys,” [P.D., 79:14-80:8], which were rare. [id. at 83:1-3]. 17. About 80% of the jobs were new installations, [id. at 82:20-21], which took approximately one to four hours per job. [H.,¶8]. 18. QCC paid technicians a predetermined amount to complete each assignment and [id. at ¶7] was based on the work invoiced to the customer. [P.D., 85:15-21;86:21-87:5]. 19. QCC paid technicians solely on a commission basis according to the extent and type of work performed, regardless of how long the work took, which motivated the technicians to work efficiently. [id.¶7]. 20. Commission payments generally ranged from about $100 to $400 per task. [id.]; [P.D., 83-84; 21-5]. 21. Technicians could earn more money if they sold customers additional services, such as rewiring an additional location, which Calvo was aware of and did. [H.,¶20]; [P.D., 118:6- 20]. 22. Summit never paid Calvo or any other QCC technician a single dollar. [P.D., 149- 150: 17-6]; [H.,¶7]; [L.,¶9]. 23. In accordance with the MSA, QCC was responsible for compensating technicians. [L.,¶9]. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 3 of 520 PageID 639 4 24. While Calvo claims he worked approximately 60-70 hours per week in 20144 and 2015, Summit does not know how Calvo was paid, nor does it possess payment records for Calvo and he did not file taxes for 2014 and 2015. [id.]; [P.D., 113:18-24; 114: 2-3, 13-18; 20:12- 15]. 25. Calvo earned $5,400 from October 16, 2016 through December 31, 2014, and $56,500 from January 1, 2015 through July 26, 2015. [Doc. 56]. 26. Summit did not issue 1099-MISC forms, W-2 forms, or any other tax document to technicians. [L.,¶9]. 27. When Calvo had questions about his paycheck he directed them to QCC and it fixed any issues. [P.D., 123:9-16]. 28. Calvo did not direct questions about his paycheck to Summit. [id. at 126-127: 3- 12]. 29. Calvo did not have any discussions with anyone at Summit about his pay. [P.D., 127:15-17]. 30. While technicians placed their completed work orders in a box, Calvo admits that he does not know whether someone from Summit or QCC cleaned out the box. [id. at 91:2-25, 124:4-125:14]. 31. Calvo admits that he did not receive training from Summit on how to install or service telecommunications equipment. [id. at 102:21-103:19,128:10-21,148-149:9-1]; [L.,¶15]. 32. Prior to working at QCC,5 Calvo was trained on all aspects of his job as a 4 Calvo also stated in response to interrogatories that he worked 50 hours per week in 2014. [Doc. 56, p. 2]. 5 Calvo worked as a technician at six companies that provide similar services, including companies that contracted with Frontier, Comcast, and Verizon. [P.D., 9:15-22; 10:14-15; 11:14-15; 12:3-4,7; 16:9-10; 21:9-11, 21-23; 24: 18-24; 27:14-15]. He admits that he often just quits when he finds a company that pays a better rate: “Whenever I find a better pay rate I Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 4 of 520 PageID 640 5 technician, [P.D., 128:10-14], except as to Summit’s inventory tracking system that was never actually implemented and he never actually used. [id. at 104:15-17]. 33. During the first month of Calvo’s employment with QCC, a Summit employee would perform weekly, after-the-fact quality control checks on technicians’ work, but about one month later QCC assumed that responsibility. [H.,¶15]; [L.,¶16]; [P.D., 128:15-130:10, 160:18-161:13]. 34. If QCC failed an inspection, Summit would not penalize the technician. [L.,¶¶16, 17]. 35. Summit would charge a penalty to QCC. [H.,¶15]. 36. Even if a quality control employee was onsite, which was not often, that person was not overly active and did not “breath[] down [Calvo’s] neck.” [P.D., 161:4-8]. 37. Calvo began his day by arriving at a predetermined location around between 6:00 and 7:30 A.M. [P.D., 66:3-6]; [H.,¶11]. 38. If a technician did not want to work, he did not have to show up at the facility. [P.D., 67-68:24-3]. 39. It was within each technician’s discretion as to whether he worked a particular day or not. [id.]; [H.,¶11]. 40. Initially, this location was an office operated by Summit, but in either late 2014 or early 2015,6 Calvo began reporting to a QCC-operated warehouse. [id.¶11]; [P.D., 92]. just move on to the next company… [I have quit] almost all the ones I worked for. I switch over every time.” [P.D., 50:8- 12]. 6 Calvo began employment with QCC in October 2014. Summit would have only operated this location for a few weeks or perhaps a few months, at most. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 5 of 520 PageID 641 6 41. Upon arrival, technicians would receive a work order ticket providing him with information relating to a job. [H.,¶11]. 42. QCC, not Summit, that chose which work orders to assign to each technician. [H.,¶10]; [L.,¶12]. 43. Typically, Calvo received one work order to start. [P.D., 135-136: 24-8]. 44. Summit generated additional work orders during the day and sent them to QCC, which in turn assigned the work orders. [H.,¶10]. 45. After a technician finished a work order, he could contact a dispatcher, or vice versa, to get more work. [H.,¶11]; [P.D., 141:17-143:1]. 46. Technicians could also ask dispatchers to move their schedules around. [id. at 142:7-14]. 47. If a technician had not called into QCC for more work, a QCC supervisor would call to check on the technician’s status. [H.,¶11]. 48. However, technicians were not required to accept additional work orders, nor were they disciplined if they chose not to accept additional jobs. [id.]. 49. Moreover, Calvo admits that he was never told by anyone at Summit that if he did not accept additional work order that he would be fired. [P.D., 101-102:25-3]. 50. Calvo was not directed to be anywhere at a specific time, except for in two limited circumstances, such as for escalated calls or when a customer requested a specific time. [id. at 142:21-24]. 51. Other than those two circumstances, work orders only designated an “A.M.” or “P.M.” timeslot. [id. at 146:21-24]. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 6 of 520 PageID 642 7 52. Technicians could do whatever they wanted before their first work order and between work orders. [H.,¶11]; [P.D., 77:15-17; 78:3-7]. 53. For example, sometimes Calvo stopped for gas or went grocery shopping. [id. at 77:15-17; 148:1-3]. 54. Calvo could complete work orders anytime in the morning or afternoon, if it was done within the A.M. or P.M. timeslot given to the customer. [P.D., 136:9-23; 146:14-147:5]. 55. Technicians were not under any obligation to work a full day. [H.,¶11]. 56. There were days when Calvo would not work past 4:00 P.M. [P.D., 76:12-14]. 57. When Calvo arrived at a customer’s house, he generally knew what kind of work Summit expected. [id. at 128:18-130:5-10, 144:13-145:16]. 58. Calvo believed that Summit expected him to perform quality and professional work and to also educate its elderly customers to ensure satisfaction and to avoid future calls due non-functioning equipment. [id. at 144:5-6; 9-12; 144-145:23-5; 101:5-8]. 59. Although Calvo knew what Summit generally expected from him, Calvo had the discretion as to how to perform his job, such as whether to change wiring and which tools to use. [P.D., 144:13-22]. 60. Calvo does not recall having ever received any written policies or procedures from Summit. [P.D., 154, 155]. 61. Summit furnished only the materials that Calvo would need for installation and repairs, such as cable boxes, routers, and wires. [L.,¶13]; [H.,¶13]; [P.D., 79:3-8]. 62. Calvo carried extra of that equipment with him. [id. at 140: 5-7]. 63. Calvo was required to provide his own vehicles and tools. [L.,¶13]; [H.,¶13]. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 7 of 520 PageID 643 8 64. Calvo admits that he had his own tools and paid for replacement tools when necessary. [P.D., 79:1-2; 9-20]. 65. He also admits that he paid for his gas, maintenance and road tolls. [id.]. 66. Calvo was required to wear a shirt with Summit written on the front, but the shirt also had QCC on the sleeve, so that customers would allow the technicians into their homes. [id. at 160:14-17]; [H.,¶13]. 67. Summit did not discipline Calvo; it merely requested that he, through QCC, go back and fix any mistakes. [P.D., 97:4-12, 100-101:18]. 68. Calvo’s claim that Summit “directed when a tech would be terminated,” [Opt- ins—Doc.86,¶7], which was only based on his belief that he personally was fired at the direction of a Summit employee. [P.D., 35-37:18-19, 98-99:21-9]. 69. Calvo admits that his termination was communicated to him by Mike Hall, a QCC contractor who served as his supervisor whom he liked and believes would not lie, [id. 38:12-14, 53:22-54:16; 54:19-55:2], and Hall has testified that Summit had no input into hiring or firing. [H.,¶15]; [L.,¶17]. II. ARGUMENT7 A. SUMMARY JUDGMENT STANDARD Courts may grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir.2018). The burden then shifts to the nonmoving party to show that a genuine issue of fact exists. The nonmoving party “may not rest upon mere allegations or denials,” but “must set forth specific facts showing that there is a 7 To avoid duplication of record citations, please refer to the statement of facts supra at I. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 8 of 520 PageID 644 9 genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, at 252. An issue of fact is genuine if “the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir.2004). The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. Anderson, 477 U.S. at 249. Furthermore, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that a jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). B. PLAINTIFF IS EXEMPT UNDER § 7(i) Assuming that Calvo was jointly employed by Summit, which Summit expressly denies, the undisputed facts demonstrate that Calvo is exempt under the FLSA. Calvo alleges in that 29 U.S.C. § 207(a)(1) entitled him to receive overtime compensation for work he performed over forty hours a week. [Compl.,¶85]. Section 207(a)(1) states, relevant part: Except as otherwise provided in this section, no employer shall employ any of his employees … for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate…. The FLSA establishes overtime compensation requirements, but it also creates exemptions. Whether an employee falls within the scope of an exemption is a legal issue. Paneto v. Motor Car Concepts II, Inc., 2007 WL 328730, at *2 (M.D. Fla.2007). Section 7(i) of the FLSA exempts certain employees of retail or service establishments who are paid on a commission basis from overtime. Tussing v. Quality Res., Inc., 2009 WL 4350253, 3 (M.D. Fla.2009). 7(i) provides that employees of retail or service establishments, who are paid on commission basis, may be exempt from overtime pay if certain criteria are satisfied, specifically if: “(1) the regular rate of pay of Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 9 of 520 PageID 645 10 such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services.” 29 U.S.C. §207(i). In order for the 7(i) exemption to apply, Summit must satisfy the following three factors: (1) the employer is a retail or service establishment; (2) the employee’s regular rate of pay is at least one and one-half times the minimum wage; and (3) more than half of the employee’s compensation for the representative period is from commission. See Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.2001). 1. Summit Is A Retail Or Service Establishment The Department of Labor (“DOL”) defines retail and service establishments as: “establishments 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” See Jones v. Tucker Commc'ns, Inc., 2013 WL 6072966, at 5 (M.D. Ga. Nov. 18, 2013) (quoting 29 C.F.R. § 779.411). Summit’s customers were the end users of its were the end users of such equipment and services and did not resell such services and equipment. 95% of Summit’s dollar volume of the sale of goods or services is not for resale. The DOL regulations provide a non-exhaustive list of establishments to which the retail concept applies, which includes establishments whose sales or services may be recognized as retail, indicating that they are part of industries with a "retail concept." See 29 C.F.R. § 779.320. While telecommunications services are not identified on the list, it does identify a number of repair services that are analogous to Summit’s services, including refrigerator service and repair shops, automobile repair shops, and other repair shops. See id. Accordingly, the cable technicians Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 10 of 520 PageID 646 11 qualify as technicians because they were analogous to other repair technicians in the regulation. See Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (N.D.N.Y. 2013). Courts have found that companies like Summit qualify as retail or service establishments because such companies “serve[] the everyday needs of the community in which [they] are located,” “perform[] a function in the business organization of the Nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization,” “do[] not take part in the manufacturing process,” and “provide[] the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living.” See Jones, 2013 WL 6072966; Matrai, 168 F. Supp. 3d at 1362; Moore v. Advanced Cable Contractors, Inc., 2013 WL 3991966, at 3 (N.D. Ga. 2013). Accordingly, Summit is a retail or service establishment within the meaning of Section 7(i) exemption. 2. Plaintiff’s Regular Rate Was One And One-Half Times Minimum Wage The second element of the 7(i) exemption is that Calvo’s regular rate of pay must exceed one and one-half times the minimum wage. At all relevant times, the federal minimum wage was $7.25 an hour. 29 U.S.C. § 206(a)(1) (2017). To be exempt from overtime on any given week, Calvo’s regular rate of pay must exceed $10.88 per hour ($7.25 x 1.5) for that week. Where an employee is paid by commission, the regular rate is calculated by allocating the commission payments among each workweek of the commission computation period. 29 C.F.R. § 778.120. Because Summit was not Calvo’s employer, it does not have pay records that concern Calvo. Calvo’s estimation of his earnings is also speculative because he did not file federal income tax returns in 2014 or 2015. [P.D., 20: 12-15]. However, Courts have found that in the absence of detailed records, testimony regarding a Calvo’s hours are sufficient to establish that they were paid more than one and one-half times the applicable minimum wage. See Battle v. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 11 of 520 PageID 647 12 DirecTV, L.L.C., 2017 WL 4076205 at 8; See also Kuntsmann v. Aaron Rents, Inc., 903 F. Supp. 2d 1258 (N.D. Ala. 2012) (concluding plaintiff’s testimony about his working hours proved that regular rate of pay exceeded one and one-half times the minimum wage). Accordingly, the Court here should accept Calvo’s testimony regarding his earnings as sufficient to establish that he was paid more than one and one-half times the applicable minimum wage. Calvo estimates that he earned $5,400 from October 16, 2016 through December 31, 2014, and $56,500 from January 1, 2015 through July 26, 2015 for a total of $61,900 during the 40 weeks that Calvo was employed by QCC. Assuming that the Court finds the Calvo’s testimony sufficient, as other Courts have, Calvo would clearly qualify for the 7(i) exemption during that period because his regular rate each week would be approximately $25.80 ($61,900 divided by 40 weeks divided by 60 hours). Accordingly, the second factor is satisfied. 3. More Than Half Of Plaintiff’s Compensation Is From Commission The third element of the 7(i) exemption requires that Calvo received at least fifty percent of his compensation from commissions. The Eleventh Circuit has defined “commission” in Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1255, 1256 (11th Circ. 2001), which was succinctly summarized in Moore 2013 WL 3991966, at *4: In Klinedinst v. Swift Invs., Inc., the defendant employer paid his employees, automobile painters, on the basis of “flagged hours,” which essentially assigned a certain time value to the painting of a certain portion of an automobile. 260 F.3d 1251, 1253 (11th Cir.2001). Employees were paid based on the amount of “flagged hours” of tasks they had completed multiplied by their hourly rate, which was set by the employer based on their experience and skill level. Id. Employees were paid for the entire “flagged hour” time value, regardless of how long it took them to complete the given task. Id. The Court of Appeals reasoned that the flat rate payment plan qualified as a commission based payment system as a matter of law because it incentivized employees to work efficiently, which allowed the employer to take on more customers, which in turn allowed employees the opportunity to make more money. Id. at 1256. The Court stated “[t]he function of a commission exemption as embodied by section 7(i) is to ensure that Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 12 of 520 PageID 648 13 workers who are paid on a commission basis are guaranteed to receive at least the legislated minimum wage without requiring them to work overtime for it.” Id. Following Klinedinst, cable technicians are paid on commission where, as here, the technicians are “paid a set amount per task,” and “the length of time they took to complete jobs did not determine their compensation.” Jones, at 10; Moore, 2013 WL 3391966, at 5; Matrai, 168 F. Supp. at 1364 (collecting a wide variety of cases across jurisdictions). This is because in such circumstances the technicians have an incentive to work quickly and “get additional work if they complete their scheduled appointments ahead of time . . .” Moore, 2013 WL 3391966, at 5. It is also significant that QCC technicians earned more money if they sold customers additional services. For example, if a work order instructed a technician to wire a living room for cable internet, he could earn additional money if he persuaded the customer to wire a bedroom, as well. As a result, the pay for each job fluctuated with type of services the technicians performed and the more jobs that Calvo could complete, the more he was paid. See McAninch v. Monro Muffler Brake, Inc. (S.D. Ohio 2011) (summary judgment granted because defendant was entitled to retail commission exception where defendant’s compensation plan provided incentive to work more and to work more productively). Summit has clearly satisfied the requirements of the 7(i) exemption. Summit is a retail or service establish which had 75% of its annual sales and services not connected to resale and is recognized as retail sales or services in the particular industry. Calvo’s compensation came in the form of commissions. Calvo earned well over one and one-half times the applicable minimum wage. Accordingly, Summit’s motion for summary judgment should be granted as to the 7(i) exemption. C. PLAINTIFF IS AN INDEPENDENT CONTRACTOR AND NOT AN EMPLOYEE Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 13 of 520 PageID 649 14 In addition to being exempt under Section 7(i), Calvo is also not an “employee” as defined by the FLSA. An employee is “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). To “employ” is defined broadly as “to suffer or permit to work.” 29 U.S.C. § 203(g). However, independent contractors are not protected. See Freund v. Hi-Tech Satellite, Inc., 185 Fed. Appx. 782, 782 (11th Cir.2006). To determine whether an individual is an employee or an exempt independent contractor, the Eleventh Circuit looks to the “economic reality of the relationship between the alleged employee and alleged employer and whether that relationship demonstrates dependence.” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (11th Cir.2013). To determine whether an individual is an employee under the FLSA, courts apply the six-factor economic realities test, which considers: (1) the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed; (2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee’s investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; (6) the extent to which the service rendered is an integral part of the alleged employer’s business. Scantland, at 1312. Courts weigh all six factors and no one of the six factors can alone be determinative. See Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (5th Cir.1976); See also Antenor v. D&S Farms, 88 F.3d 925, 933 (11th Cir.1996). While these six factors serve as guidelines, the predominant focus of the inquiry is on economic dependence. See, e.g., Quarles v. Hamler, 652 Fed.Appx. 792 (11th Cir.2016). Courts focus on whether an individual is “in business for himself” or is “dependent upon finding employment in the business of others” to determine economic dependence. See, e.g., Scantland, 721 F.3d at 1312. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 14 of 520 PageID 650 15 1. Summit Did Not Exert Control Over Plaintiff Calvo could arrive to the warehouse between 6:00 A.M. and 7:30 A.M. He was not required to arrive at a specific time. Once he arrived and received the first work order, Calvo retained all control and discretion as to when to arrive at the first customer’s house. Calvo admitted that Summit did not control the timing of Calvo’s work beyond a simple “A.M.” or “P.M.” timeslot. Calvo admitted that, at his discretion, he ran errands, such as going to the grocery shopping during the day. Summit did not use any equipment to track Calvo’s time and whereabouts. Nor did Summit call technicians to check on their status, instead Calvo’s QCC supervisor would call Calvo to check on his whereabouts. When Calvo first began at QCC, a Summit employee would perform an after-the-fact quality control check on the technician’s work. However, about one month later, QCC took over that responsibility. Furthermore, when Summit was performing the checks, QCC technicians were not disciplined for quality control failures. Summit had no authority or ability to punish or penalize technicians. Summit never disciplined Calvo, nor did it supervise Calvo’s work beyond a few weeks of quality control checks, which was eventually taken over by QCC. The technicians were not informed of any specifics specs beyond providing professional and quality work, and educating Summit’s senior citizen customers. The technicians maintained the control over how to perform each task, which tools to use, the discretion as to where to place the cable or internet equipment, whether to replace wires. Moreover, Summit was not responsible for paying Calvo’s wages. Summit paid QCC a specified amount and QCC retained the discretion as to how to pay its technicians. In addition to pay, Summit also did not possess the ability to hire, fire, or discipline QCC’s technicians. At most, if a customer complained about malfunctioning equipment, Summit relayed that Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 15 of 520 PageID 651 16 information to QCC who then directed a technician to correct any problems. Furthermore, when Calvo was fired, it was a QCC supervisor that terminated him and Summit had no input into such decision. These factors support a finding of independent contractor status. 2. Plaintiff Had Independent Opportunity For Profit Or Loss This factor considers Calvo’s opportunity for profit or loss dependent upon his managerial skills, such as “initiative, judgment and foresight.” See Artola v. MRC Express, Inc., 2015 U.S. Dist. LEXIS 130183 (S.D. Fla.2015); See also Scantland, at 1316. "An individual's ability to earn more by being more technically proficient is unrelated to an individual's ability to earn or lose profit via his managerial skill…” Scantland, at 1316. Here, the record shows that Calvo’s work allowed him to exert significant managerial skill, especially in a way that would allow him additional opportunity for profit. Calvo had the ability to provide more services to Summit’s customers. If a work order instructed Calvo to wire a living room for cable internet, he could earn additional money if he persuaded the customer to wire another room. Calvo also admits that he often replaced wiring, which allowed him to earn more money per job. Moreover, Calvo had full control over the speed with which he worked. Technicians were incentivized to work quickly and to ask for additional work if they completed work ahead of schedule. If he worked at a faster rate of speed, he could take on more work orders thereby increasing his final takeaway. Finally, technicians had the direct ability to mitigate overhead expenses. Technicians provided their own vehicles and were not required to purchase specific vehicles approved by Summit. It would be simply untrue to find that technicians exercised no skill that would translate into potential for profit or loss. See Bennett, 2013 WL 4804841, at 8-9; See also Chao v. Amerilink, 16 Fed. Appx. 104, 106-07 (4th Cir.2001) (finding installer’s net profit or loss “depends on his skill in meeting technical specifications … on the business acumen … required capital Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 16 of 520 PageID 652 17 investment in tools, equipment, and a truck…”). Calvo’s ability to earn more, or even less, was a direct result of how many work orders he completed, as well as his ability to sell additional services to customers. Accordingly, these factors support a finding of independent contractor status. 3. Plaintiff Invested In Equipment/Materials Courts have found in favor of independent contractor status when plaintiffs invest in equipment or materials required for completing his tasks. Scantland, 721 F.3d at 1317. Here, Calvo did make such investments. It is undisputed that Calvo supplied his own tools. It is also undisputed that Summit only provided cable boxes, routers, and wires. Further, it is not disputed that Calvo paid for his own gas, oil, maintenance, and related road tolls. Accordingly, this weighs in favor of independent contractor finding. See Battle, 2017 WL 4076205 (Finding in favor of independent contractor status where undisputed evidence demonstrated that plaintiffs made sizeable investments in tools, vehicle, fuel, phones, equipment, ladders necessary to perform). 4. Plaintiff Required Special Skills To Perform The Job “[U]ltization of initiative and the employment of special skills indicates independent contractor status." Artola, 2015 WL 12672722, at 8. "A worker with unique skills and the opportunity to exercise initiative is more likely to be able to operate as an independent business entity than an interchangeable worker who completes routine tasks." id. "A lack of specialization indicates that an individual is an employee, not an independent contractor." Molina v. S. Fla.Express Bankserv, Inc., 420 F. Supp. 2d 1276, 1286 (M.D. Fla.2006). "Finally, even if an individual has specialized skills, that is not indicative of independent contractor status where the individual does not use those skills in an independent fashion." Molina, 420 F. Supp. 2d at 1286. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 17 of 520 PageID 653 18 Calvo was trained in his position prior to working at QCC and because he worked at other similar companies, he was trained on all aspects of his job. Summit relied on QCC to hire individuals who possessed the appropriate skill level to perform work for Summit’s customers and Calvo’s supervisor testified that Calvo was knowledgeable and skilled. The Court in Battle v. DirecTV, L.L.C., supra stated “if [it is] correct [that these services do not require special skills], no need would exist for their services, as the average consumer would be able to install and connect the equipment at issue.” Moreover, numerous courts have found that cable and satellite technicians require special skills. See Freund, 185 Fed. Appx. at 784 (installation of home satellite systems required special skills, including that technician be able to explain the inner workings of the system to customers); Santelices v. Cable Wiring, Inc. 147 F. Supp. 2d 1313, 1320 (S.D. Fla.2001) (installation of cable services requires special skills and that “a cable installed in today’s market is considered a skilled tradesman”); Roslov v. DirecTV, Inc. 2016 WL 6892110, at 17 (N.D. Ark. 2016) (“[t]he skills involved in cable installation and service are akin to carpentry and electrical work,’ and that ‘the [w]orkers in such trades . . . are traditionally designated as independent contractors”). Therefore, in accordance with other district court, this Court should find that these factors weigh in favor of an independent contractor finding. 5. Small Degree Of Permanency And Duration The degree of permanency and duration of the working relationship points in favor of employee status when the tenure is long and exclusive. Scantland at 1318-1319. In Clincy v. Galardi South Enters., 808 F. Supp. 2d 1326, 1348 (N.D. Ga.2011), the court indicated that a working relationship of less than one year is "transient or itinerant" and signaled independent contractor status. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 18 of 520 PageID 654 19 Calvo admits that in performing this same type of work in the past he quits when he finds better rates. Therefore, one can assume that this evidences no exclusivity or permanency to any contractor or cable/internet provider in Calvo’s opinion. Moreover, nothing in the MSA indicates that Calvo, or QCC for that matter, was restricted in performing services for other companies. In fact, the Chief Operating Officer of Summit testified that technicians often do work for other companies at the same time. Further, Calvo was employed with QCC for approximately eight (8) months. These factors weigh in favor of an independent contractor status. 6. Plaintiff Was Not An Integral Part Of Summit’s Business “If a worker's tasks are integral to the business of the employer, this suggests economic dependence.” Chavez v. Arancedo, 2018 U.S. Dist. LEXIS 162898 (S.D. Fla.2018) (citing Scantland, at 1319). Although installing cable and internet was certainly integral, QCC was not the only company competing for Summit’s business, so neither QCC nor any of its contractors was integral to Summit’s business. Therefore, Summit would have provided cable and internet services to its customers irrespective of whether QCC and its contractors were the contractors/company offering those services. Moreover, Calvo acted like an independent contractor, not an employee. He provided his own vehicle, was required to pay for his own gas, oil, road tolls, and he was required to purchase his almost all of his own equipment and supplies. Calvo had already-acquired skills that were necessary to this industry. Calvo had the discretion as to how and when to perform his work, which was subject to only a minimal number of weeks of quality controls. Calvo had direct control over his own profitability, which was increased when he worked efficiently and also when he sold additional services. Accordingly, the Court should find that Calvo was not an Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 19 of 520 PageID 655 20 employee, but rather was an independent contractor. See Parrilla v. Allcom, 2009 WL 2868432 (M.D. Fla.2009) (Cable installers were independent contractors exempt from the FLSA). D. SUMMIT WAS NOT PLAINTIFF’S JOINT EMPLOYER To determine whether someone is jointly employed, the Courts look to “each employment relationship as it exists between the worker and the party asserted to be a joint employer.” Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1177 (11th Cir.2012). “The existence of a joint employment relationship depends on the economic realities of all the circumstances and whether those circumstances demonstrate economic dependence.” Amponsah v. DirecTV, LLC, 278 F.Supp. 3d 1352 (N.D. Ala. 2017). The Eleventh Circuit has identified eight factors the court should consider when making a joint employer determination: (1) the nature and degree of control of the workers; (2) the degree of supervision, direct or indirect, of the work; (3) the power to determine the pay rates or the methods of payment of the workers; (4) the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; (5) preparation of payroll and the payment of wages; (6) ownership of facilities where work occurred; (7) performance of a specialty job integral to the business; and (8) investment in equipment and facilities. See Layton, 686 F.3d 1172 (11th Cir.2012); Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1294 (11th Cir.2016). The Court in Layton stated that no one of the eight factors are determinative alone and “the weight of each factor depends on the light it sheds on the []workers’ economic dependence (or lack thereof) on the alleged employer, which in turn depends on the facts of the case.” id. at 1177. 1. Summit Did Not Control, Supervise, Or Have The Ability To Hire, Fire, Or Modify Conditions Of Employment Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 20 of 520 PageID 656 21 The Eleventh Circuit has succinctly described actions that constitute “control” suggesting “joint employment.” An alleged employer takes an ‘overly active’ role when it decides such things as (1) for whom and how many employees to hire; (2) how to design the employees’ management structure; (3) when work begins each day; (4) when the employees shall start and stop their work each day; and (5) whether an employee should be disciplined or retained. Martinez-Mendoza v. Champion Int’l. Corp., 340 F.3d 1200, 1210-11 (11th Cir.2003). A company exerts control when it “goes beyond general instructions… and begins to assign specific tasks, to assign specific workers, or to take an overly active role in the oversight of workers.” Aimable, 20 F.3d at 441. Minimal and infrequent oversight does not constitute the required amount of supervision. Martinez-Mendoza, 340 F.3d at 1212. Here, as discussed supra at (II)(C)(1), the MSA and testimony clearly demonstrates that QCC not Summit determined who was hired, fired or disciplined. While Calvo speculates that QCC submitted his QCC application and background check to Summit for approval, Calvo admits that he is speculating and does not actually know.8 Summit relied on QCC to vet the technicians, including background checks and drug testing. Calvo’s termination was also communicated to him directly by his QCC supervisor. No one from Summit told him that he was terminated. Furthermore, the most “discipline” administered by Summit were occasional requests made directly to QCC that its technicians go back to fix any problem or report a customer complaint. The technicians arrived between 6:00 A.M. and 7:30 A.M. and it was within each technician’s discretion if he worked on any given day. Calvo determined his departure time, 8 “I mean, everything has to go through [Summit], the background check in order for them to hire me. I mean, I don’t know. I’m assuming that’s the way it works.” Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 21 of 520 PageID 657 22 which was dependent on how many jobs and how quickly he worked. Calvo testified that he finished at different times, sometimes by 4:00, 6:00, or even 9:00 P.M. Calvo could request additional work orders if he chose to, but he did not have to do so. While Summit had objectives, such as providing satisfactory and professional cable, internet, and telephone services to its customers, Summit did not apportion specific tasks to specific individuals. Rather, QCC determined which technician received what assignments. Once a technician left with a work order, Summit had no control over how the technician performed, how long it took, what additional services he offered, what he did between jobs, how many jobs he picked up on any given day. Accordingly, these factors weigh in favor of a finding that Summit did not take an “overly active role in the oversight of the work,” but rather it showed “abstract control.” 2. Summit Did Not Have The Ability To Determine Pay Or Method And Did Not Prepare Payroll Or Payments For Technicians As discussed supra at (I), Calvo admits that Summit never paid him a dollar, nor did he discuss his pay with anyone at Summit. Summit paid QCC a predetermined amount of money. QCC then determined how and how much should be paid to technicians, who were paid solely on a commission basis according to the extent and type of work performed, irrespective of the amount of time it required and technicians could earn more if they sold more services. The commission payments ranged depending on the type of work. Calvo admits that every installation was different and his pay would vary as a result and that he received direct deposit from QCC. Summit does not know how Calvo was paid, nor does it possess payment records for Calvo because QCC exclusively compensated technicians. Summit did not have access to Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 22 of 520 PageID 658 23 such documents. Summit also did not issue 1099-MISC forms, W-2 forms, or any other tax document to Calvo. Although QCC received a predetermined amount from Summit, that does not mean that Summit controlled or determined how much Calvo should receive from QCC. Other courts have expressly rejected this exact argument. See, e.g., Tafalla v. All Fla.Dialysis Servs., Inc., 2009 WL 151159 (S.D. Fla.2009) (hospital did not set a subcontractor’s pay because the contractor’s decision to pay a subcontractor was potentially influenced by hospital’s compensation scheme); Roslov, 2016 WL 6892110, at 6 (While Plaintiff is entitled to an inference that the Service Provider’s decision to pay him an amount may be influenced by the compensation it received, this is no different than any other contractor relationship, and is not control contemplated by the FLSA); See Battle, at 6 (“The Plaintiffs contend that, because [Defendant] set the rates at which it paid subcontracting companies under a piece rate pay system… it had the practical effect of controlling the pay rates… This argument is unavailing”). Accordingly, these factors weigh against a joint employer finding. 3. QCC Operated The Facility For The Majority Of Plaintiff’s Employment Calvo worked for QCC for approximately 40 weeks prior to his termination. Initially, he picked up his work orders from Summit’s facility until QCC opened its own facility sometime in late 2014 or early 2015. From that point, he picked up his work orders from QCC’s facility. As such, Calvo only arrived at the Summit location for a brief period — approximately 15 weeks, at most, after which he reported to QCC’s facility. Moreover, an individual’s worksite is where he spends the majority of his time. See, Morrison v. Magic Carpet Aviation, 383 F.3d 1253 (11th Cir.2004) (pilot’s worksite was the Boeing airplane he flew). Even if Summit operated the warehouse for the first weeks of Calvo’s employment, he Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 23 of 520 PageID 659 24 only spent a small amount of his time there – picking up work orders in the morning and dropping them off in a QCC maintained box. Instead, Calvo spent the majority of his time driving in his vehicle and using his own tools, which Summit did not own or maintain, and in the homes or businesses in which he installed services. Summit’s brief operation of the facility does not suggest economic dependence, and therefore, also weighs against joint employer. See Amponsah, 278 F.3d 1365 (Plaintiffs admitted that their work occurred in the homes of customers and Court found this factor in favor of the Defendants) (internal citations omitted). 4. QCC’s Technicians Were Not Integral To Summit’s Business “A worker who performs a routine task that is a normal and integral phase of the grower's production is likely to be dependent on the grower's overall production process.” See Antenor, 88 F.3d 925, 937 (11th Cir.1996). As discussed supra at (II)(C)(6), although installing cable and internet was certainly integral to Summit’s business, QCC was not the only company competing for and performing Summit’s installation services. As such, neither QCC nor any of its contractors was integral to Summit’s business. Accordingly, Summit would have provided cable and internet services to its customers irrespective of its agreement with QCC9. Further, Calvo spent most of his time alone in his vehicle or at customers houses or businesses. Calvo typically worked by himself and not side-by-side with other QCC or Summit employees/contractors. Only a “handful of times” was a quality control person on site, and such person not “behind [Calvo’s] back [] breathing down [his] neck.” The Court in Layton proffered: “Drivers performed most of their work away from DHL’s facilities and supervision; they did not work side-by-side with other DHL employees. Drivers also operated vehicles not owned by DHL… On balance, we find that this factor does not 9 Indeed, Summit terminated the MSA in approximately January 2016. [L,¶4]. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 24 of 520 PageID 660 25 strongly support a conclusion that a joint employment relationship exists.” Accordingly, the Court should find that the above factors do not weight in favor of finding joint employment. 5. Investment In Equipment And Facilities The Court must consider the “degree of investment in equipment and facilities by the independent contractor on the one hand, and the putative employer on the other.” See Antenor, 88 F.3d at 937. As discussed supra at (II)(C)(3), Calvo supplied his own tools, except for cable boxes, routers, and wires. It is undisputed that he invested in his own gas, oil, maintenance. When the parties have both invested in equipment, Courts have found this factor be neutral or excluded it from their analyses. See Diaz v. U.S. Century Bank, 2013 U.S. Dist. LEXIS 68399 (S.D. Fla.2013); Likes v. DHL Exp., Inc., 2012 WL 8499732 (N.D. Ala. 2012); Layton, 686 F.3d at 1181. Summit exercised virtually no control or oversight into the details of the technicians’ work and had no input into the purported class members’ compensation or termination. On facts such as these, many courts have found that cable providers are not the joint employers of technicians. See Santelices v. Cable Wiring, 147 F. Supp. 2d 1313, 1327 (S.D. Fla.2001); see also Valdez v. Cox Commc’ns Las Vegas, Inc., 2012 WL 1203726 (D. Nev. 2012) (“every court to consider this issue ultimately has found no joint employment for cable installers at the summary judgment stage under factual circumstances fairly similar” to those at issue in this case); Jean-Louis v. Metro. Cable Commc’ns, Inc., 838 F. Supp. 2d 111 (S.D.N.Y. 2011); Lawrence v. Adderley Indus., Inc., 2011 WL 666304 (E.D.N.Y. 2011); Jacobson v. Comcast Corp., 740 F. Supp. 2d 683 (D. Md. 2010). III. CONCLUSION For the foregoing reasons, Defendant Summit Broadband Inc. respectfully requests that this Court enter an order grating summary judgment in its favor as to all claims against it. Respectfully submitted, Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 25 of 520 PageID 661 26 /s/ Catherine H. Molloy Catherine H. Molloy Florida Bar No. 33500 Email: molloyk@gtlaw.com GREENBERG TRAURIG, P.A. 101 E. Kennedy Boulevard, Suite 1900 Tampa, FL 33602 (813) 318-5700 – Telephone (813) 318-5900 – Facsimile and Dawn I. Giebler-Millner Florida Bar No. 856576 GREENBERG TRAURIG, P.A. 450 South Orange Avenue, Suite 650 Orlando, Florida 32801 Telephone: (407) 420-1000 Facsimile: (407) 841-1295 Primary Email: gieblerd@gtlaw.com Attorneys for Defendant Summit Broadband Inc. CERTIFICATE OF SERVICE I hereby certify that on 6th day of February, 2019, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF. /s/ Catherine H. Molloy Attorney ORL 299890411v4 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 26 of 520 PageID 662 Case 2:16-cv-00746-SPC-MRM Document 87-1 Filed 10/06/17 Page 1 of 5 PageID 341 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DAVID CAL VO, individually, and on behalf of all others similarly situated, Plaintiff, vs. CASE NO. 2:16-cv-746-UA-MRM QUALIFIED CABLE CONTRACTOR, LLC; SUMMIT BROADBAND INC.; WAYNE FOGELSON; and SHAWN WALLACE, Defendants. ________________ ./ DECLARATION OF MARK F. LIPFORD 1. I, Mark F. Lipford , am of majority age, competent to testify, and provide this Declaration based on personal knowledge of facts I know to be true and correct. 2. I am the Chief Operating Officer for Summit Broadband and have been since July 28, 2014. In that position, I am responsible fo r all aspects of the business; financial, operations, engineering, sales, marketing, customer experience and human resources. 3. Summit is and was, at all times relevant to the above-captioned action, a fiber- optics telecommunications provider in Central and Southwest Florida providing cable television, internet, and telephone services to consumers. 4. From September 26, 2014 until approximately January 2016, pursuant to a "Master Agreement for Installation," Summit engaged Qualified Cable Contractor, LLC ("QCC") to install and service cable and internet connections in the homes or businesses of Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 27 of 520 PageID 663 Case 2:16-cv-00746-SPC-MRM Document 87-1 Filed 10/06/17 Page 2 of 5 PageID 342 Summit Broadband Inc. 's ("Summit's") customers. Except as otherwise provided, any and all statements below apply to that time period. 5. QCC and Summit shared no common ownership or management, nor did Summit control QCC, or vice versa. QCC's principals and managers were m no way affiliated with Summit beyond their engagement as set forth in the Agreement. 6. At all relevant times, Summit, engaged in enterprises that are recognized as retail in the telecommunications industry. The consumers in whose homes or businesses Summit, directly or th.rough various subcontractors such as QCC, provided telecommunications equipment and services were the end users of the equipment and services. The consumers did not resell the equipment or services. Summit, directly or through its subcontractors pursuant to various subcontract agreements, did not engage in non-retail activities. For example, it did not work in the construction industry installing telecommunications equipment in unfinished buildings that were being constructed for the purpose of sale to a third party or install cable underground to new housing developments previously unserved by a cable connection. 7. Summit did not have any ownership interest or control over QCC, directly or indirectly through subsidiaries, and vice versa. 8. QCC engaged with technicians to perform work that QCC undertook pursuant to the Agreement. 9. In accordance with the Agreement, QCC, not Summit, was responsible for compensating the technicians. Summit therefore knows nothing of how the technicians were compensated and has no records or other evidence relevant to that issue. Summit did not 2 Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 28 of 520 PageID 664 Case 2:16-cv-00746-SPC-MRM Document 87-1 Filed 10/06/17 Page 3 of 5 PageID 343 issue 1099-MISC forms, W-2 forms, or any other tax documents to technicians. Summit had no authority to withhold compensation from any technician, nor did it ever recommend that QCC do so. Summit never required, collected, or reviewed any documents or other information for the purposes of determining, recommending, or otherwise affecting any technicians' compensation. I 0. Summit was not informed about the hours the technicians worked and has no records or evidence of same. 11. Technicians performed two types of jobs for Summit. They (1) performed initial installation of cable internet, television, or telephone equipment for new Summit customers and (2) made service calls to existing Summit customers. 12. Throughout each day, Summit generated work orders and provided them to QCC, which in tum assigned work orders to technicians. Summit played absolutely no role in assigning work orders to technicians. Other than identifying that an appointment as in the "AM," "PM," or "All Day," Summit did not require that any job be performed at any particular time. 13. Technicians were required to provide their own truck and tools. Summit only provided the materials needed for installations and repairs, namely cable boxes, routers, and wires. Sometime in late 2014 or early 2015, Summit issued laptops to the technicians for the purpose of tracking inventory that had been given to a customer. 14. Technicians were required to wear a shirt with Summit Broadband written on the front and QCC on the sleeve so customers, who would only be familiar with Summit, would feel comfortable giving them access to their homes. 3 Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 29 of 520 PageID 665 Case 2:16-cv-00746-SPC-MRM Document 87-1 Filed 10/06/17 Page 4 of 5 PageID 344 15. Summit did not t~ain technicians on how to install or service cable equipment, nor did Summit supervise or otherwise direct technicians' work in any way. Summit did not provide any instruction to technicians as to how to complete work orders. Rather, Summit relied on QCC to vet its technicians to ensure that they knew how to do the work. 16. Prior to November of 2014, Summit performed quality control inspections on completed jobs once or twice a week. If QCC failed the inspection, then Summit would charge a penalty to QCC. Summit did not penalize or discipline any technician because it lacked the authority to do so, nor did it direct or encourage QCC to do so. In November of 2014, QCC assumed responsibility for its own quality control checks. 17. Summit never evaluated, disciplined, warned, or rewarded technicians, nor did it recommend that QCC do so. Summit had no input whatsoever into the hiring or firing of technicians or any terms and conditions of their engagement with QCC. 18. Summit did not perform background checks or drug testing on the technicians hired by QCC and instead relied on QCC to perform such checks. 19. Summit does not possess a list of who QCC hired as technicians. If Summit were requested to produce such a list, it could not do so. 20. Several other telecommunications contractors competed with QCC to perform work for Summit, so neither QCC nor any of its contractors was integral to Summit's business. 21. The work of technicians required special skills, including the ability to install and repair fiber optic or coaxial wiring and cable equipment. This includes, but is not limited to installation activities, such as running cable and installing jacks, placing Optical Network 4 Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 30 of 520 PageID 666 Case 2:16-cv-00746-SPC-MRM Document 87-1 Filed 10/06/17 Page 5 of 5 PageID 345 Terminals (ONT's), cable boxes, routers and modems, installing wired or wirelessly the customers own equipment, including home theatre, sound systems, printers, phones and personal computers and ensuring all services were working for voice, video and data services; as well as repair activities, such as troubleshooting the reason for an interruption of voice, video or data services and initiating repairs to restore service, including cable box, router or modem swaps, inside wire replacement or repair and ONT replacement or repair. Summit relied on QCC to hire technicians who possessed the necessary skills to perform these functions and did not provide any training to the QCC technicians on how to do these jobs. 22. Summit did not concern itself with whether technicians, while engaged by QCC, simultaneously maintained engagements or employment with other companies, even competitors of Summit. I DECLARE UNDER PENAL TY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on this 6th day of October, 2017. MarkF.~J} f ~ 5 Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 31 of 520 PageID 667 ORL 299634527v1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DAVID CALVO, individually, and on behalf of all others similarly situated, Plaintiff, vs. CASE NO. 2:16-cv-746-UA-MRM QUALIFIED CABLE CONTRACTOR, LLC; SUMMIT BROADBAND INC.; WAYNE FOGELSON; and SHAWN WALLACE, Defendants. / DECLARATION OF MIKE HALL 1. I, Mike Hall, am of majority age, competent to testify, and provide this Declaration based on personal knowledge of facts I know to be true and correct. 2. I have been working in the telecommunications industry since 2003, initially as an installer and later training and supervising other installers. Prior to that I was in the military working as an electronics technician working on aircraft. I formerly worked for Qualified Cable Contractor, LLC (“QCC”) and in that capacity served as the direct supervisor of technicians/installers (“technicians”), including David Calvo (“Plaintiff”), with whom QCC engaged to service and install cable and internet connections for Summit Broadband Inc. (“Summit”) at all times relevant to the above- captioned action, from approximately October 2014 through January 2016. Except as otherwise provided, any and all statements below describe and apply to that time period. Case 2:16-cv-00746-SPC-MRM Document 87-2 Filed 10/06/17 Page 1 of 6 PageID 346Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 32 of 520 PageID 6 8 2 ORL 299634527v1 3. Summit is a fiber-optics telecommunications provider in Central and Southwest Florida providing cable television, internet, and telephone services to consumers. 4. From September 26, 2014, through all times relevant, pursuant to a “Master Agreement for Installation,” Summit engaged QCC to install and service cable and internet connections in the homes or businesses of Summit’s customers. 5. QCC engaged with Plaintiff either directly or through a subcontractor, in order for QCC to complete its projects for Summit. QCC also engaged with other technicians. In these relationships, the parties understood the technicians to be independent contractors and not employees, and the parties governed themselves accordingly. Each year, QCC provided all of its technicians with a Form 1099-MISC. 6. Technicians performed two types of jobs for Summit. They (1) performed initial installation of cable internet, television, or telephone equipment for new Summit customers and (2) made service calls to existing Summit customers. 7. Summit paid QCC a predetermined amount for the completion of any given task. Summit never paid or compensated technicians in any way. Rather, it was QCC that paid the technicians, and it did so solely on a commission basis according to the amount and type of work the technician performed for the customer, regardless of how long the work took. For example, as a technician wired more parts of a building, his or her commission increased. QCC paid technicians on a commission basis in order to incentivize the technicians to work efficiently. Case 2:16-cv-00746-SPC-MRM Document 87-2 Filed 10/06/17 Page 2 of 6 PageID 347Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 33 of 520 PageID 669 3 ORL 299634527v1 8. QCC typically paid technicians $100 to $150 dollars for initial installations, although technicians could make as much as $300 to $400 in some circumstances. Initial installations could take anywhere from one to four hours to complete. For service calls, QCC typically paid technicians between $32 to $40. 9. Technicians considered this pay arrangement very generous. The compensation provided by QCC was better than the compensation provided by any other entity with which I have engaged. 10. Throughout each day, Summit generated work orders and sent them to QCC, which in turn assigned work orders to technicians. Summit played absolutely no role in assigning work orders to technicians. Summit did not require that any job be performed at any particular time. Summit occasionally performed quality control checks after work was done, but played a less significant role in QCC’s operations than any other company with which I have ever worked. 11. On any given day, technicians who desired to work would show up at a predetermined location between 6:30 A.M. and 7:30 A.M. in the hope of being assigned a work order by QCC. When I first began working as a supervisor for QCC, this location where was operated by Summit, but in late 2014 or early 2015, the location was a warehouse operated by QCC. When I first began working as a supervisor for QCC, technicians who arrived seeking work each morning would sign up on a piece of paper and would receive work on a first come, first served basis. I thought that was a poor arrangement, so instead I began handing out assignments based on the skill level of the technicians present. QCC tried to keep track of to whom each job was assigned. Case 2:16-cv-00746-SPC-MRM Document 87-2 Filed 10/06/17 Page 3 of 6 PageID 348Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 34 of 520 PageID 670 4 ORL 299634527v1 Technicians were under no obligation to work for a full day. After a technician finished a work order, he or she could call QCC and ask for more work. Technicians were not required to do so. If a technician did not call QCC, then I would call the technician and check his or her status. The technicians were in complete control of their own schedules. They were not penalized if they chose not to accept work orders. Technicians were never required to be on call. There were no restrictions on their freedom in between being assigned work orders. 12. Plaintiff was a skilled, knowledgeable technician. 13. Technicians were required to provide their own truck and tools. Summit provided the materials needed for installations and repairs, namely cable boxes, routers, and wires. Sometime in late 2014 or early 2015, Summit issued laptops to the technicians for the purpose of tracking inventory that had been given to a customer. Technicians were required to wear a shirt with Summit Broadband written on the front and QCC on the sleeve. The Summit logo was required so that customers would let the technicians into their homes. 14. I do not recall the Plaintiff ever working on Saturdays. 15. Summit exercised no control over the technicians. Indeed, Summit exercised the least control of any entity with which I have contracted. Summit did not train technicians on how to install or service cable equipment, nor did Summit supervise or otherwise direct technicians’ work in any way. When I first began working as the technicians’ supervisor, Summit performed quality control inspections on completed jobs once or twice a week. If QCC failed the inspection, then Summit would charge a penalty Case 2:16-cv-00746-SPC-MRM Document 87-2 Filed 10/06/17 Page 4 of 6 PageID 349Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 35 of 520 PageID 671 5 ORL 299634527v1 to QCC. Summit did not penalize or discipline any technician because it lacked the authority to do so, nor did it direct or encourage QCC to do so. In November of 2014, QCC assumed responsibility for its own quality control checks. 16. Because technicians were not required to work on any particular day or accept any particular work order, they were free, during the course of their engagement with QCC, to simultaneously maintain engagements or employment with other companies. Indeed, several technicians did so. In addition, technicians could terminate their engagement with QCC at any time. 17. QCC and Summit share no common ownership or management, nor does Summit control QCC. QCC’s principals were in no way affiliated with Summit beyond their engagement as set forth in the Agreement. 18. Summit, QCC, and its technicians were engaged in enterprises that are recognized as retail in the telecommunications industry. The consumers in whose homes or businesses QCC and Summit provided telecommunications equipment and services were the end users of the equipment and services. The consumers did not resell the equipment or services. The technicians did not work in the construction industry. That is, they did not install telecommunications equipment in unfinished buildings that were being constructed for the purpose of sale to a third party. QCC did not do any non-retail work for Summit, such as installing telecommunications equipment with the construction industry, or laying cable underground to new housing developments previously unserved by a cable connection. Case 2:16-cv-00746-SPC-MRM Document 87-2 Filed 10/06/17 Page 5 of 6 PageID 350Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 36 of 520 PageID 672 6 ORL 299634527v1 19. While Plaintiff was a skilled technician, he was not reliable. On many occasions, Plaintiff would not show up to receive assignments or he would show up for work at 9:00 A.M., upset because there were no work orders left, and then wait around asking to be assigned a work order as they came in. 20. Technicians had the opportunity to earn more money if they sold customers additional services. For example, if a work order instructed a technician to wire a living room for cable internet, he could earn additional money if he persuaded the customer to wire a bedroom, as well. 21. Plaintiff was very aggressive in his billing practices. At one point he and two other technicians substantially over-billed for a project called “Kelly Green.” The bill was about $5,000 for a week of work, but the amount due was in fact about $2,300. The offending technicians included wiring for parts of the building that were already pre- wired. Summit later performed a quality control check and informed me of the discrepancy, which I verified. Summit refused to pay QCC for work that had not in fact been done, and QCC decided it was not going to pay the technicians to the extent it was not paid by QCC. I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on this 5 day of October, 2017. MIKE HALL Case 2:16-cv-00746-SPC-MRM Document 87-2 Filed 10/06/17 Page 6 of 6 PageID 351Case 2:16-cv-0 746-SPC-MRM Document 109 Filed 02/ 6/19 Page 37 of 520 PageID 673 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 1 of 8 PageID 214 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DAVID CAL VO, individually, and ) ) ) ) ) ) ) ) ) ) ) ) ) on behalf of all others similarly situated, Plaintiff, vs. QUALIFIED CABLE CONTRACTOR, LLC; SUMMIT BROADBAND, INC.; WAYNE FOGELSON; and SHAWN WALLACE Defendants. CASE NO.: 2:16-CV-746-UA-MRM --------------~/ PLAINTIFF, DAVID CALVO'S, AMENDED RESPONSE TO COURT'S INTERROGATORIES 1. During what period of time were you employed by the Defendants? ANSWER: I was employed by the Defendants from approximately October 16, 2014 through approximately June of 2015. 2. Who was your immediate supervisor? ANSWER: Mike Hall. 3. Did you have a regularly scheduled work.period? If so, specify. ANSWER: Yes, I worked Monday through Saturday, from 6:00 a.m. until all ofmy jobs were completed. Thee end times would vary but we were required to be at the warehouse by 6:00 a.m. each morning. 4. What was your title or position? Briefly describe your job duties. ANSWER: My job title was field technician which included installation and repair of internet and other services. I Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 38 of 520 PageID 674 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 2 of 8 PageID 215 5. What was your regular rate of pay? ANSWER: I did not have a regular rate of pay. I was paid a piece-rate and each assignment was priced differently. 6. What is the nature of your claim (check all that apply)? X Off the clock work (Defendant failed to record, or prohibited you from recording all of your working time); Misclassification (Defendant mistakenly classified you as exempt from overtime); Miscalculation (Defendant failed to correctly calculate your compensation); Other (Please describe): 7. Provide an accounting of your claim, including: 2 ANSWER: a. Dates: Approximately October 16, 2014 through June 23, 2015. b. Regular hours worked: I am unable to provide an exact accounting of my regular hours worked, as I am not in possession of all of my time and pay records. However, I typically worked from 6:00 a.m. to 8:00 p.111. Monday through Saturday, although the end time would vary based on when the jobs were completed. Further, I v.:as required to be on "standby" between 6:00 a.m. through 8:00 p.111. Monday through Satlll"day, if I was not on a job. Based on my best recollection and review of limited information in my possession, I estimate that I worked an average of fifty (50) hours per week from October 16, 2014 through the end of December 2014 for a total of twelve (12) weeks. Similarly, it is estimated that I worked approximately sixty ( 60) hours per week from J anurn·y 1, 2015 through July of 2015, for a total of thirty (30) weeks. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 39 of 520 PageID 675 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 3 of 8 PageID 216 -\ 3 c. Over-time hours worked: Again, I am unable to provide an exact accounting of my regular hours worked, as I am not in possession of all of my time and payroll records. However, I typically worked from 6:00 a.m. to 8:00 p.m. Monday through Saturday, although the end time would vary based on when the jobs were completed. Further, I was required to be on "standby" between 6:00 a.m. through 8:00 p.m. Monday through Saturday, if I was not on a job. Based on my best recollection and review of limited information in my possession, I estimate that I worked an average of fifty (50) hours per week from October 16, 2014 through the end of December 2014 for a total of twelve (12) weeks, resulting in ten (10) hours of overtime per week for that time period. SimilaT!y, it is estimated that I worked approximately sixty (60) hours per week from January 1, 2015 through July of 2015, for a total of thirty (30) weeks, resulting in twenty (20) hom·s of overtime per week during this period. d. Pay received versus pay claimed: I was paid by the Defendants on a "piece-rate" for the assignments that I completed. However, I was never paid an hom·ly rate for each and every hour that I worked and I was not paid time and half for each and every hour that I worked in excess of forty (40) hours per week. Although I do not have possession of all ofmy payroll records, I was able to ascertain that I was paid approximately $5,400.00 by the Defendants during 2014 and $56,500.00 during 2015. e. Total amount claimed: I am unable to provide an exact accounting of my claim without reviewing my time and payroll recOl'ds, which are in the possession of Defendants. However, I believe that I am owed the difference between what I was Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 40 of 520 PageID 676 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 4 of 8 PageID 217 4 paid and the proper amount pursuant to the Fair Labor Standards Act which includes, but is not limited to, an hourly wage for each and every hour that I worked for Defendants, time and a half for each and every hour that I worked for the Defendants in excess of forty ( 40) hours per week, and an equal amount of liquidated damages. Although I do not have possession of all of my payroll records, I was able to ascertain that I was paid approximately $5,400.00 by the Defendants during 2014 and $56,500.00 during 2015. Using these amounts, and the hours I allege I worked stated above, I have made the following estimation of my damages, which are subject to change should additional information or records be discovered. Should the CoUJt determine that the fluctuating work week calculation applies, my damages would be as follows: For the time period from October 2014 through the end of December 2014, I worked 12 weeks for the Defendants. During this time period, I worked approximately fifty (50) hours per week, including ten (10) overtime hours per week. Based on the total amount I was paid for 2014, I was paid $450 per week for fifty (50) hours of work, resulting in an hourly wage of$9.00 per hour. As such, I should have also. been an additional $4.50 per hour for ten (10) hours per week for those twelve (12) weeks. As such, I am owed 120 hours at $4.50 per hour for a total of$540.00 for 2014. For the time period from January 2015 through July 2015, I worked 30 weeks for the Defendants. During this time period, I worked approximately sixty (60) hours Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 41 of 520 PageID 677 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 5 of 8 PageID 218 5 per week, including twenty (20) overtime hours per week. Based on the total amount I was paid for 2015, I was paid approximately$!,883.00 per week, resulting in an hourly wage of $31.38 per hour. As such, I should have been paid an additional $15.69 per hour for twenty (20) hours per week for those thirty (30) weeks. As such, I am owed 1,200 hours at $15.69 per hour for a total of$18,828.00. Total amount claimed under fluctuating work week: Based on the foregoing, I believe that I run owed $19,368.00 plus an equal runount ofliquidated damages. Should the Court determine that the normal work week calculation applies, my damages would be as follows: For the time period from October 2014 through the end of December 2014, I worked 12 weeks for the Defendants. During this time period, I worked approximately fifty ( 50) hours per week, including ten (I 0) overtime hours per week. Based on the total amount I was paid for 2014, I was paid $450 per week for, resulting in a11 hourly wage of $11.25 per hour. As such, I should have also been paid one and one halftimes my hourly rate ($16.87) for ten (10) hours per week for those twelve (12) weeks. As such, I am owed 120 hours at $16.87 per hour for a total of$2,024.40 for 2014. For the time period from Jrumru-y 2015 through July 2015, I worked 30 weeks for the Defendants. During this time period, I worked approximately sixty (60) hours per week, including twenty (20) overtime hours per week. Based on the total amount I was paid for 2015, I was paid approximately $1,883.00 per week, resulting in an hourly wage of$47.07 per hour. As such, I should have been paid one and Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 42 of 520 PageID 678 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 6 of 8 PageID 219 ' - ' 8. one half times my hourly rate for twenty (20) hours per week for those thirty (30) weeks. As such, I am owed 1,200 hours at $70.60 per hour for a total of$84,720.00. Total amount claimed under normal work week calculation: Based on the foregoing, I believe that I am owed $86,744.40 plus fill equal amount ofliquidated dfilnages, if the normal work week calculation applies. If you have brought this case as a collective action: a. Describe the class of employees you seek to include in this action: I seek to include any and all individuals who fil"e similarly situated as myself pursuant to 29 U.S.C. § 201, Sec. 3(e), who CU!Tently work, or have worked, for Defendants as a technicifilJ/installer aJid performed similar techniciaJI duties for Defendants at MY time during the applicable statutory period immediately preceding the filing of the Complaint in this matter. b. Has fill opt-in notice been filed for every potential opt-in Plaintiff who has identified himself or herself as a person who wishes to join this action? Not at this time. 9. Please specify all attorney's fees aJid costs incurred to date. With respect to attorney's fees, please provide the hourly rate( s) sought filld the number of hours expended by each person who has billed time to this case. ANSWER: Jeremiali J. Talbott, Esq.: 14.20 hours expended; seeking rate of$350/hour Tyler L. Gray, Esq.: 6.90 hours expended; seeking rate of$300/hour Bradley S. Larsen, Esq.: 8.90 hours expended; seeking rate of$250/hour Costs incurred to date: $845.53 10. When did you (or your attorney) first complain to your employer about alleged violations of the FLSA? 6 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 43 of 520 PageID 679 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 7 of 8 PageID 220 ANSWER: August of 2015. 11. Was this complaint written or oral? (If written complaint, please attach a copy). ANSWER: Oral. 12. What was your employer's response? (Ifa written response, please attach a copy) ANSWER: The response received, as to the minimum wage and overtime compensation allegations, was that Defendants were not going to change the way I was paid and that they had an attorney if I had any concerns. 7 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 44 of 520 PageID 680 Case 2:16-cv-00746-UA-MRM Document 56 Filed 05/23/17 Page 8 of 8 PageID 221 couNTY oF · Cc:tok BEFORE ME, the um.lersign,:d authority, on this day, personally ,lf>pe,wctl .................... . -----,-----------• who being lirsl duly sworn, t!cp<)se, and ,ny, Uta\ ,ho '"'"' the foregoing Answers 1o· the Cou1t'~ Inlcrrogutories to the Pla\n!\ff, knows the conkt\\ of-~"~· and to the best of her knowledge and belief, the snmc am true and correct SWORN TO AND SUBSCRIBED before me this Z '2- dt1y ()fM11rch, 2017. SAMAREO MIUS OFFICIAl SEAl , No1ary Pvblir ~ w~,~~either one) as its designated representative ancj OWNER designates Mark Lipford or Tony Ontiveros (either one) as its designated representative for the purposes of negotiating and validating any such written instrument of change. There shall be no deviation, change or departure from the Plan ecifications, or the terms and Master Agreement for Installation Page 2 of 16 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 50 f 520 PageID 686 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 4 of 15 PageID 78 provisions of this Agreement unles.s the foregoing procedure shall have been fully performed and completed. No work shall be commenced witt, respect to any such change, deviation or departure until the foregoing procedure shall have been performed and completed. 8. TIME FOR PERFORMANCE: 8.01 Force Majeure Clause: In the event that an act of God; war: fire; strike; lock-outs of workmen; embargoes; non-availability of electronic components, cable and necessary materials or supplies; unseasonable weatt1er conditions; restrictions imposed by the government or governmental agencies; or other delays beyond the SUBCONTRACTOR'S reasonable control, shall affect the performance of the work, the time for completion of the work shall be extended for such period as shall be just and reasonable to cover the time lost from any of the above mentioned causes. 8.02 DelaYS: If the SUBCONTltA.CTOR has accepted the Purchase Order, the SUBCONTRACTOR shall have satisfied itself that all the necessary permits, easements and materials are available to undertake the work outlined in the Purchase Order. The SUBCONTRACTOR shall not have claim against the OWNER for any lost profits, additional costs , mobilization or demobilization, if the SUBCONTRACTOR has accepted the Purchase Order. 9. PAYMENT: Total payment due SUBCONTFtACTOR will be determined by the works satisfactorily constructed at prices quoted in and memorialized in executed Purchase Order and/or Change Order Documents. SUBCONTRACTOR will invoice OWNER on a weekly basis; invoices will include Purchase Order and/or Change Order Number. Payment will be made 30 days from the receipt of SUBCONTRACTOR'S invoice or week ending date, unless SUBCONTRACTOR fails to complete work satisfactorily. In the event that the SUBCONTRACTOR requests payment within 14 days from the receipt of SUBCONTRACTOR'S invoice, there will be a 4% discount of the invoiced amount paid by OWNER. In the event that the SUBCONTRACTOR requests payment within 21 days from the receipt of SUBCONTRACTOR'S invoice, there will be a 2% discount of the invoiced amount paid by OWNER. All invoices should be emailed to each of the following addresses: dl-bizops@summit-broadband.com ap@summit-broadband.com 9.01 In the event of claims of improper performance, deficiencies, un-workman like works by the SUBCONTRACTOR, the OWINER shall give the SUBCONTRACTOR written notice and description of the deficiency (the "Deficiency"). The parties, acting reasonably, shall agree to a "hold-back" calculated at 200% of the estimated cost of the correction or rectification of the Deficiency If the SUBCONTRACTOR has not rectified the Deficiency within thirty (30) days of notice of the Deficiency, the OWNER has the right to use its own forces or an alternate SUBCONTRACTOR to correct the Deficiency. 9.02: Charge Backs - Charge back flat fee of $75.00 for a repeat service call or cost of the install for a service call on an install. Master Agreement for Installation ~ Page3of16 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 51 f 520 PageID 687 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 5 of 15 PageID 79 Charge backs will be assessed in the following categories: 1. SeNice Calls on installs (within 7 days-craftsmanship) >5% 2. Repeat calls (within 7 days-craftsmanship) >5% 3. On Time Guarantee >5% 4. Quality Inspections 5. Missing/damaged equipment, material or CPE Should there be a dispute as to thE? amount of such hold-back, such dispute shall be submitted to arbitration before the American Arbitration Association. Arbitration shall be conducted before a single arbitrator, based in Central Florida or Lee County, selected in accordance with rules and regulations of the American Arbitration Association. and the arbitration shall be conducted as rapidly as possible by the OWNErt and the SUBCONTRACTOR. Each of the parties shall bear his own cost of arbitration and sl1all bear ratably the costs and expenses of services of the Association and the arbitrator. The: parties shall be bound, conclusively, by any award entered as the result of such arbitration. 10. MANNER OF SUBCONTRACTOR'S PERFORMANCE: 10.01 Quality Work: SUBCONTRACTOR shall perform the work embraced by this Agreement in a workmanlike manner, in accordance with Exhibit B, and in accordance with the terms and provisions of this Agreement. As irequired by OWNER guidelines, SUBCONTRACTOR shall do 10% inspection of all work that has been performed. OWNER will also quality check SUBCONTRACTOR's work and OWNER'S customer may also do its own checks. In the event SUBCONTRACTOR fails to pass any such quality assurance checks of OWNER or OWNER'S customer, any charge or expense (a "Quality Cost') that is incurred by the OWNER including charge backs for repeat trouble, deficiencies in SUBCONTRACTOR's services will remain the sole responsibility of SUBCONTRACTOR. Such charges shall be deducted from payments otherwise owed to SUBCONTRACTOR. To the extent the Quality Costs exceed the amount of payments owed to SUBCONTRACTOR, SUBCONTRACTOR shall promptly pay the costs to OWNER unless SUBCONTRACTOR promptly fixes the problems to the mutual satisfaction of OWNER and its customer. If SUBCONTRACTOR damages property of OWNER'S customer, SUBCONTRACTOR shall address and correct the probl,em outlined by the OWNER. and follows an agreed time-line to make the necessary corrections or, at OWNER'S option, and pay the cost of required repairs. 10.02 Compliance with Codes: SUBCONTRACTOR shall conform to all applicable federal, state and local safety codes, including OSHA regulations. The OWNER shall not be liable for any penalties or suits from whatever source, which results from any violations of such safety regulations. In accord with paragraph 13 of this Agreement. SUBCONTRACTOR agrees to indemnify, defend, and hold harmless OWNER for any claims arising out of, or relating to, a violation of this section of the Agreement. 10.03 Laws: SUBCONTRACTOR shall comply with all laws, Federal and State, which may regulate the performance of this a!~reement, including , but not limited to, laws relating to wages and hours, and keep records showing such compliance. In accord with paragraph 13 of this Agreement, SUBCONTRACTOR a~~rees to indemnify, defend, and hold harmless OWNER for any claims arising out of, or relating to, a violation of this section of the Agreement. 10.04 Workmanship: SUBCONTRACTOR warrants its workmanship for a period of two (2) years after SUBCONTRACTOR's work is accepted by OWNER. This warranty includes repair and replacement of any defective workmanship and satisfaction of any damage claims resulting from its operations. OWNER reserves the right to inspect and approve any and all installations made by Maste, Ag,eement to, Installation ~ Page 4 of 16 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 52 f 520 PageID 688 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 6 of 15 PageID 80 SUBCONTRACTOR. If it has been determined that an installation has not been properly made, SUBCONTRACTOR shall, at the OWNER'S option, remedy the improper installation in a timely manner or shall reimburse the OWNER its costs to remedy such installation 10.05 Delays: SUBCONTRACTOR shall notify the OWNER of any delays occasioned by causes specified in Section 8.01 "Force Majeure" clause of this Agreement within 72 hours of such event. Such evidence shall be available to the OWNER for inspection. 10.06 Employees to be Exclusively Those of the SUBCONTRACTOR: The SUBCONTRACTOR'S performance under this Agreement shall be subject to the inspection of the work from time to time by the OWNER; but it is understood that the SUBCONTRACTOR shall control all materials and labor at all times. All persons engaged by the SUBCONTRACTOR in connection with this Agreement st1aU be under the control of the SUBCONTRACTOR exclusively, and at no time shall any of such employees be authorized to act as agents, seNants, or employees of the OWNER. 11. INSURANCE Cl AUSE: The SUBCONTRACTOR shall maintain, in full force and effect, during the performance of the work, the following insurance with a major insurance carrier. The Public Liability and Property Damage Insurance shall insure SUBCONTRACTOR from any and all liability, loss or damage to persons or property, under the coverages and subject to the limitations above appearing Exhibit C inclusive, resulting from any accident arising out of the work required by this Agreement. All policies of insurance shall name OWNER as an additional insured and shall contain endorsements to the effect that the amount of coverage of the insurance provided thereby will not be reduced or terminated without triirty (30) days written notice first being given to OWNER. 12. SAFETY The SUBCONTRACTOR shall designate one employee as a safety representative at each technician work center. This designee shall follow all training and observation criteria set forth in the standard OSHA Safety Manual for Construction. and the National Electric Code/National Electric Safety Code handbooks. 13. Customer Proprietary Netv\1ork Information The SUBCONTRACTOR shall abide by and comply with Customer Proprietary Network Information regulations. See Exhibit D for the details pertaining to this requirement. 14. PROTECTION AGAINST LIENS: SUBCONTRACTOR shall not allow any liens to be filed against or in connection with any property upon which the work is done on account of labor used in connection with the said work. Unless SUBCONTRACTOR timely cures ainy such lien, OWNER reserves the right to cure such lien and to secure reimbursement from the SUBCONTRACTOR. 15. INDEMNIFICATION: SUBCONTRACTOR shall indemnify and save the OWNER free and harmless from any and all claims, damage or liability on account of any injury, including death, to persons, estruction or Master Agreement for Installation age 5 of 16 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 53 f 520 PageID 689 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 7 of 15 PageID 81 damage to property belonging to the OWNER, as well as property belonging to third persons, resulting in any manner directly in connection with or in the course of the work, or by any act of SUBCONTRACTOR, its employE~es with or in the course of the work, or by an act of the SUBCONTRACTOR, its emp!oye13s or agents or SUBCONTRACTOR'S; provided, however, that SUBCONTRACTOR shall not be responsible for any such injury, destruction or damage caused by any negligence of the OWNER, its agents or employees in connection with the work. 16. NOTICES: Any written notice which either party hereto may give the other concerning the subject matter of this Agreement may be given by mailing such notice to the SUBCONTRACTOR at Qualified Cable Contractor LLC., 28367 Rose Oak St. , Ponchatoula, LA 70454 and mailing to the OWNER at 24017 Production Circle, Bonita Springs, Florida 34135. 17. BLANKET ARBITRATION CLAUSE: Should any dispute &rise betvveen the parties as to the meaning of Plans, Specifications, or any of the terms and conditions of this Agreement, or with respect to the performance thereof, or the quality of performance thereof, which are not covered by the arbitration clause herein, such dispute shall be arbitrated by a single arbitration through the medium of the American Arbitration Association. in manner and fashion as specified in Section 9.01; and the parties hereto shall be bound by the results of such arbitration. 18. ASSIGNMENT: SUBCONTRACTOR agrees that it will not assign this Agreement, or any of the monies due it , or to become due hereunder, nor sublet any portion of the work without first obtaining written consent of OWNER. 19. Compensation of SUBCOf\lTRACTOR's Employees: SUBCONTRACTOR is responsible for assuring that persons and employees furnished by SUBCONTRACTOR under this Ag1reement are paid in a timely manner and hereby indemnifies the Company and its customers against SUBCONTRACTOR'S failure to so timely pay. The OWNER may withhold payment if SUBCOMTRACTOR fails to pay its employees. SUBCONTRACTOR is also responsible for (i) withholding or causing SUBCONTRACTOR'S employees to withhold, all Federal, state and local income, scicial security, unemployment, excise, payroll and all other taxes or charges required by law to be1 withheld from compensation of such individuals performing SeNices, (ii) all employment taxes and withholdings, (iii) payment or causing payment of such taxes or charges to the appropriate governmental agencies and (iv) all workers' compensation benefits, premiums and other similar charges. Persons furnished by SUBCONTRACTOR under this Agreement shall not be entitlecl to any benefits that the OWNER or its customers provides to their own employees and SUBCONTRACTOR shall indemnify defend and hold harmless the OWNER and its customers against any claims alleging that any of SUBCONTRACTOR'S employees or subcontractors are employees of the OWNER or its customers or are entitled to benefits from the OWNER or its customers. Master Agreement for Installation Page 6 of 16 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 54 f 520 PageID 690 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 8 of 15 PageID 82 IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date(s) ind icated below: Accepted By: Summit Broadband Inc. ~ Master Agreement for Installation Page 7 of 16 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 55 f 520 PageID 691 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 9 of 15 PageID 83 MASTER AGREEMENT FOR INSTALLATION BETWEEN · Qualified Cable Contractor·. LLC 28367 Rose Oak St. Ponchatoula, LA 70454 Hereiinafter designated SUBCONTRACTOR AND Summit Broadband Inc . . a l='lorida corporation · 24017 Production Circle Bonita Springs, Florida 34135 tJ~~-~i_r:iafter_q~s-~gQ_ated OWNE~. - .,,. ,,, ~ J. ,r,, THIS AGREEMENT is made and entered into this .c:_.f:_ day ot,_,, "·J.ttf¥2014 ("Effective Date"), among and between the parties above designated. • WITNESSETH, that the parties hereto, in consideration of their mutual covenants and a!~reetl'ients, do hereby covenant and agree as follows: 1. DESCRIPTION OF WORK: SUBCONTRACTOR agrees to provide the services (the ''lnstaHations'') as set forth in Exhibit A - Scope of Work attached hereto and ln strict accordance to the specifications as detailed in the Purchase Order duly executed by the OWNER and delivered to the SUBCONTRACTOR (the "Pure hase Order"). It is contemplated that this agreement shall outline the general. contract conditions between the SUBCONTRACTOR and OWNER whereas the scope, pricing and responsibilities of specific works are detailed in Purchase Orders and accompanying Exhlbit A. 2. Plans and Specifications: The installations to be made, under this .Agreement. shall be done and made in strict accordance with the specifications attached hereto and made a part hereof. The specifications are lo be prepare_9,~ ~N'~~j arn:fsu~ted to the SUBCONTRACTOR and sl~all be reviewed by the pa1··es., if s~Je;"within; f'ft n (1 .52. days after receipt by the owNE:R. . •. . .. ., ; M ae i15tli ru~ !JJ1Jh.ee___ vP SUBCONTRACTOR hereto des,i: fiates . and ~t(Jµ/(1 as the primary contac:ts of the SUBCONTRACfOR for urposes of validating and accepting such plans and specifications. 3. Commencement_ of Work: Upon receipt of the Purchase Order the SUBCONTRACTOR will advise the OWNER in writing, that SUBCONTRACTOR will accept the Purchase Order. The OWNER has the unfettered righ1 to cancel or revoke the Purchase Order 1f the OWNER has not received written acceptance of the Purchase Order. Any variances, changes or modifications to the Purchase Order must be in writing and signed by the SUBCONTRACTOR and thie OWNER. 4. Term of Agreement: The term of this Agreement shall commence on the Effective Date and renew for an additional (1) year at the OWNERS discretion and only with a written notification from the OWNER SUBCONTRACTOR agrees to perform servfces for the work to OWNE:R on or before the expiration of the term set forth above. OWNER may terminate the use of the :SUBCONTRACTOR'S services at any time without cause and without further obligation to Master ,C\greement for Installation Page 1 of 13 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 56 f 520 PageID 692 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 10 of 15 PageID 84 the SUBCONTRACTOR except for payment due for services prior to date of such termination. Further, either party may terminate this agreement with a written 30 day notice to the other party. Terminatio1n of this agreement or termination of services shall not affect the provisions of this agreement relating to SUBCONTRACTOR'S obligations arising following the termination of this Agreement as set forth herein or in Exhibit "A" which shall survive any termination. 5. EQUIPMENT, MATERIALS, LABOR AND TOOLS: The OWNER shall furnish all of the equipment and materials required for the performance of the work, as sp1ecified in the Purchase Order and the accompanying Exhibit A. SUBCONTRACTOR shall provide all the necessary tools, equipment, materials and electronics, labor and supervision to execute ilhe work as Specified in the Purchase Order. Exhibit A - Scope of Work and Pricing, shall be the basis for, which the Purchase Orders will be prepared. l'f there is a conflict with Exhibit A and the Purchase Order, the Purchase Order shall take precedence. 6. PERMITS AND LICENSES: The OWNER shall obtain all necessary permits, licenses and easements for the proper authorities for said work and shall keep the SUBCONTRACTOR indemnified, at all times, against all fines, penalties and losses incurred by reason of any breach of this Section 6. 7. DEVIATION FROM PLANS AND SPECIFICATIONS: There shall be no deviation or departure from Exhibit A, the Purchase Order, or the terms of this Agreement, unless: 7.01 Suet, deviation, change or departure from Plans, Specifications or Agreement shall have been first reduced to writing; and, 7.02 The additional cost thereof shall be negotiated to a firm, flat sum, which shall be included in and be a part of such written instrument; and, 7.03 Such written instrument shall have been signed by the duly authorized representative of the parties. The SUBCONTRACTOR designates either _____ or _____ (either one) as its desiginated representative and OWNER designates Richard Pardy or Mark Lipford (either one) as its designated representative for the purposes of negotiating and validating any such written instrument of change. There shall be no deviation, change or departure from the Plans, Specifications, or the terms and provisions of this Agreement unless the foregoing procedure shall have been fully performed and completed. No work shall be commenced with respect to any such change, deviation or departure until the foregoing procedure shall have been performed and completed. 8. TIME FOR PERFORMANCE: 8.01 Force Majeure Clause: In the event that an act of God: war; fire; strike; lock-outs of workmen; embargoes; non-availability of electronic components, cable and necessary materials or supplies; unseasonable weather conditions; restrictions imposed by the government or Master Agreement for Installation Page 2 of 13 Case 2:16-cv-0 746-SPC 09 Filed 02/06/19 Page 57 of 520 I 693 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 11 of 15 PageID 85 governmenital agencies; or other delays beyond the SUBCONTRACTOR'S reasonable control, shall affect the performance of the work, the time for completion of the work shall be extended for such period as shall be just and reasonable to cover the time lost from any of the above mentioned causes. 8.02 Delays: If the SUBCONTRACTOR has accepted the Purchase Order, the SUBCONTRACTOR shall have satisfied itself that all the necessary permits, easements and materials are available to undertake the work outlined in the Purchase Order. The SUBCONTRACTOR shall not have claim against the OWNER for any lost profits, additional costs, mobilization or demobilization, if the SUBCONTRACTOR has accepted the Purchase Order. 9. PAYMENT: Total payment due SUBCONTRACTOR will be determined by the works satisfactorily constructecl at prices quoted in and memorialized in executed Purchase Order and/or Change Order Documents. SUBCONTRACTOR will invoice OWNER on a weekly basis; invoices will include Purchase Order and/or Change Order Number. Payment will be made 14 days from the receipt of SUBCONTRACTOR'S invoice or week ending date, unless SUBCONTRACTOR fails to complete work satisfactorily. All invoi.ces should be emailed to each of the following addresses: d 1-bizops@:sum m it-broadband .com ap@summil-broadband.com 9.01 In ttie event of claims of improper performance, deficiencies, un-workman like works by the SUBCONTRACTOR, the OWN,ER shall give the SUBCONTRACTOR written notice and description of the deficiency (the "Deficiency''). The parties, acting reasonably, shall agree to a "hold-back" calculated at 200% of the estimated cost of the correction or rectification of the Deficiency ll f the SUBCONTRACTOR has not rectified the Deficiency within thirty (30) days of notice of the Deficiency, the OWNER has the right to use its own forces or an alternate SUBCONTRACTOR to correct the Deficiency. Should ther1e be a dispute as to the amount of such hold-back, such dispute shall be submitted to arbitration before the American Arbitration Association. Arbitration shall be conducted before a single arbitrator, based in Central Florida or Lee County, selected in accordance with rules and regulations of the American Arbitration Association, and the arbitration shall be conducted as rapidly as possible by the OWNER and the SUBCONTRACTOR. Each of the parties shall bear his own co:st of arbitration and shall bear ratably the costs and expenses of services of the Association and the arpitrator. The parties shall be bound. conclusively, by any award entered as the result of such arbitration. 10. MAl'JNER OF SUBCONTRACTOR'S PERFORMANCE: 10.01 Quality Work: SUBCONTRACTOR shall perform the work embraced by this Agreement in a workmanlike manner, in accordance with Exhibit B, and in accordance with the terms and provisions of this Agreement. As required by OWNER guidelines, SUBCONTRACTOR shall do 10% inspection of all work that has been performed. OWNER will also quality check SUBCONTRACTOR's work and OWNER'S customer may also do its own checks. In the event SUBCONTFlACTOR fails to pass any such quality assurance checks of OWNER or OWNER'S customer, any charge or expense (a "Quality Cost") that is incurred by the OWNER incfuding Master Agreement for Installation Page 3 of 13 Case 2:16-cv-0 746-SPC 09 Filed 02/06/19 Page 58 of 520 I 694 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 12 of 15 PageID 86 charge backs for repeat trouble, deficiencies in SUBCONTRACTOR'S services will remain the sole responsibility of SUBCONTRACTOR. Such charges shall be deducted from payments otherwise owed to SIUBCONTRACTOR. To the extent the Quality Costs exceed the amount of payments owed to SLIBC0NTRACT0R, SUBCONTRACTOR shall promptly pay the costs to OWNER unless SUBCONTRACTOR promptly fixes the problems to the mutual satisfaction of OWNER and its customer. If SUBCONTRACTOR damages property of OWNER'S customer, SUBCONTRACTOR shall address and correct the problem outlined by the OWNER, and follows an agreed time-line to make the necessary corrections or, at OWNER'S option, and pay the cost of required repairs. 10.02 Compliance with Codes: SUBCONTRACTOR shall conform to all applicable federal, state and local safety codes, including OSHA regulations. The OWNER shall not be liable for any penalties or suits from whatever source, which results from any violations of such safety regulations. In accord with paragraph 13 of this Agreement, SUBCONTRACTOR agrees to indemnify, defend, and hold harmless OWNER for any claims arising out of, or relating to, a violation of this section of the Agreement. 10.03 Laws: SUBCONTRACTOR shall comply with all laws, Federal and State, which may regulate thE~ performance of this agreement, including, but not limited to, laws relating to wages and hours, and keep records showing such compliance. In accord with paragraph 13 of this Agreement, SUBCONTRACTOR agrees to indemnify, defend, and hold harmless OWNER for any claims arising out of, or relating to, a violation of this section of the Agreement. 10.04 Workmanship: SUBCONTRACTOR warrants its workmanship for a period of two (2) years after SUBC:ONTRACTOR's work is accepted by OWNER. This warranty includes repair and replacement of any defective workmanship and satisfaction of any damage claims resulting from its operations. OWNER reserves the right to inspect and approve any and all installations made by SUBCONTRACTOR. If it has been determined that an installation has not been properly made, SUBCONTRACTOR shall, at the OWNER'S option, remedy the improper installation in a timely manner or shall reimburse the OWNER its costs to remedy such installation 10.05 Dela~ SUBCONTRACTOR shall notify the OWNER of any delays occasioned by causes specified in Section 8.01 "Force Majeure" clause of this Agreement within 72 hours of such event. Such evidence shall be available to the OWNER for inspection. 10.06 Employees to be Exclusively Those of the SUBCONTRACTOR: The SUBCONTRACTOR'S performance under this Agreement shall be subject to the inspection of the work from time to time by the OWNER; but it is understood that the SUBCONTRACTOR shall control all materials and labor at all times. All persons engaged by the SUBCONTRACTOR in connection with this Agreement shall be under the control of the SUBCONTRACTOR exclusively, and at no brne shall any of such employees be authorized to act as agents, servants, or employees of the OWN!ER. 11 . INSURANCE CLAUSE: The SUBCONTRACTOR shall maintain, in full force and effect, during the performance of the work, the following insurance with a major insurance carrier: 11.01 Worker's Compensation and Employers Liability covering SUBCONTRACTOR'S full liability under the Worker's Compensation Laws of the State where the work is being performed. 11.02 Comprehensive General Liability Insurance including completed operations coverage and blanket contractual coverage with limits of not less than: Master Agreement for Installation Page 4 of 13 Case 2:16-cv-0 746-SPC 09 Filed 02/06/19 Page 59 of 520 I 695 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 13 of 15 PageID 87 Bodily Injury Property Damage $1 ,000,000 $1 ,000,000 11.03 Comprehensive Automobile Liability Insurance covering all owned automobiles and including hired and non-owned coverages with minimum limits as follows: Combined Single Limit $1 ,000,000 The Public Liability and Property Damage Insurance shall .insure SUBCONTRACTOR from any and all liability, loss or damage to persons or property, under the coverages and subject to the limitations above appearing in Sections 11.01 - 11 .03 incl.usive, resulting from any accident arising out of the work required by this Agreement. All policies of insurance shall name OWNER as an additional insured and shall contain endorsements to the effect that the amount of coverage of the insurance provided thereby will not be reduced or terminated without thirty (30) days written notice ,first being given to OWNER. 12, PROTECTION AGAINST LIENS: SUBCONTIRACTOR shall not allow any liens to be filed against or in connection with any property upon which the work is done on account of labor used in connection with the said work. Unless SUBCONTIRACTOR timely cures any such lien, OWNER reserves the right to cure such lien and to secure reimbursement from the SUBCONTRACTOR. 13. INDEMNIFICATION: SUBCONTRACTOR shall indemnify and save the OWNER free and harmless from any and all claims, damage or liability on account of any injury, including death, to persons, or destruction or damage to property belonging to the OWNER, as well as property belonging to third persons, resulting in any manner directly in connection with or in the course of the work, or by any act of SUBCONTRACTOR, its employees with or in the course of the work, or by an act of the SUBCONTf~ACTOR, its employees or agents or SUBCONTRACTOR'S; provided, however, that SUBCONTF~ACTOR shall not be responsible for any such injury, destruction or damage caused by any negliigence of the OWNER, its agents or employees in connection with the work, 14. NOTICES: Any written notice which either party hereto may give the other concerning the subject matter of this Agreement may be given by mailing such notice to the SUBCONTRACTOR at Qualified Cable Contract.or ILLC., 28367 Rose Oak St, Ponchatoula, LA 70454 and mailing to the OWNER at 24017 ProdIuction Circle, Bonita Springs, Florida 34135. 15. BLP,NKET ARBITRATION CLAUSE: Should any dispute arise between the parties as to the meaning of Plans, Specifications, or any of the terms and conditions of this Agreement, or with respect to the performance thereof, or the quality of performance thereof, which are not covered by the arbitration clause herein, such dispute shall be arbitrated by a single arbitration through the medium of the American Arbitration Association, in manner and fashion as specified in Section 9.01; and the parties hereto shall be bound by thi= results of such arbitration. Master Agreement for Installation Page 5 of 13 Case 2:16-cv-0 746-SPC 09 Filed 02/06/19 Page 60 of 520 I 696 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 14 of 15 PageID 88 16. ASSIGNMENT: SUBCONTRACTOR agrees that it will not assign this Agreement, or any of the monies due it, or to become due hereunder, nor sublet any portion of the work without first obtain.ing written consent of OWNER 17. Compensation of Subcontractor's Employees: SUBCONTRACTOR is responsible for assuring that persons and employees furnished by SUBCONTRACTOR under this Agreement are paid in a timely manner and hereby indemnifies the Company c;lnd its customers against SUBCONTRACTOR'S failure to so timely pay. The OWNER may withhold payment if SUBCONTRACTOR fails to pay its employees. SUBCONTRACTOR is also responsible for (i) withholding or causing SUBCONTRACTOR'S employees to withhold, al! Federal, state and local income, social security, unemployment, excise, payroll and all other taxes or charges required by law to be withheld from compensation of such individuals performing Services, (iii) all employment taxes and withholdings, (iii) payment or causing payment of such taxes or charges to the appropriate governmental agencies and (iv) all workers' compensation benefits, premiums and other similar charges. Persons furnished by SUBCONTRACTOR under this Agreement shall not be entitled to any benefits that the OWNER or its customers provides to their own employees and SUBCONTRACTOR shall indemnify defend and hold harmless the OWNER and its customers against any claims alleging that any of SUBCONTRACTOR's employees or subcontractors are employees of the OWNER or its customers or are entitled to benefits from the OWNER or its customers. Master Agreement for Installation Page 6 of13 Case 2:16-cv-0 746-SPC 09 Filed 02/06/19 Page 6 of 520 I 697 Case 2:16-cv-00746-UA-MRM Document 16-1 Filed 11/18/16 Page 15 of 15 PageID 89 IN WffNESS WHEREOF, the parties hereto have signed this Agreement on the date(s) indicated below: Master A!~reement for Installation Accepted By: Summit Bro~ ~d Inc. /J. Signed: '(;/,~/I /[~ By: 5.j.•ff ~nactl / Title: tlf Bt.>..S ,n ctSS CJ;rrca;,ns Date: V2~t,/(p Witness: ~ T-1'\JJ.ft"('~~ Page 7 of 13 Case 2:16-cv-0 746-SPC 09 Filed 02/06/19 Page 62 of 520 I 6 8 § 778.120 Deferred commission payments not identifiable as..., 29 C.F.R. § 778.120 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Code of Federal Regulations Title 29. Labor Subtitle B. Regulations Relating to Labor Chapter V. Wage and Hour Division, Department of Labor Subchapter B. Statements of General Policy or Interpretation Not Directly Related to Regulations Part 778. Overtime Compensation (Refs & Annos) Subpart B. The Overtime Pay Requirements Principles for Computing Overtime Pay Based on the “Regular Rate” 29 C.F.R. § 778.120 § 778.120 Deferred commission payments not identifiable as earned in particular workweeks. Currentness If it is not possible or practicable to allocate the commission among the workweeks of the period in proportion to the amount of commission actually earned or reasonably presumed to be earned each week, some other reasonable and equitable method must be adopted. The following methods may be used: (a) Allocation of equal amounts to each week. Assume that the employee earned an equal amount of commission in each week of the commission computation period and compute any additional overtime compensation due on this amount. This may be done as follows: (1) For a commission computation period of 1 month, multiply the commission payment by 12 and divide by 52 to get the amount of commission allocable to a single week. If there is a semimonthly computation period, multiply the commission payment by 24 and divide by 52 to get each week's commission. For a commission computation period of a specific number of workweeks, such as every 4 weeks (as distinguished from every month) divide the total amount of commission by the number of weeks for which it represents additional compensation to get the amount of commission allocable to each week. (2) Once the amount of commission allocable to a workweek has been ascertained for each week in which overtime was worked, the commission for that week is divided by the total number of hours worked in that week, to get the increase in the hourly rate. Additional overtime due is computed by multiplying one-half of this figure by the number of overtime hours worked in the week. A shorter method of obtaining the amount of additional overtime compensation due is to multiply the amount of commission allocable to the week by the decimal equivalent of the fraction Overtime hours Total hours x 2 A coefficient table (WH–134) has been prepared which contains the appropriate decimals for computing the extra half-time due. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 63 of 520 PageID 699 § 778.120 Deferred commission payments not identifiable as..., 29 C.F.R. § 778.120 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Examples: (i) If there is a monthly commission payment of $416, the amount of commission allocable to a single week is $96 ($416x12=$4,992÷52=$96). In a week in which an employee who is due overtime compensation after 40 hours works 48 hours, dividing $96 by 48 gives the increase to the regular rate of $2. Multiplying one-half of this figure by 8 overtime hours gives the additional overtime pay due of $8. The $96 may also be multiplied by 0.083 (the appropriate decimal shown on the coefficient table) to get the additional overtime pay due of $8. (ii) An employee received $384 in commissions for a 4–week period. Dividing this by 4 gives him a weekly increase of $96. Assume that he is due overtime compensation after 40 hours and that in the 4–week period he worked 44, 40, 44 and 48 hours. He would be due additional compensation of $4.36 for the first and third week ($96÷44=$2.18÷2=$1.09x4 overtime hours=$4.36), no extra compensation for the second week during which no overtime hours were worked, and $8 for the fourth week, computed in the same manner as weeks one and three. The additional overtime pay due may also be computed by multiplying the amount of the weekly increase by the appropriate decimal on the coefficient table, for each week in which overtime was worked. (b) Allocation of equal amounts to each hour worked. Sometimes, there are facts which make it inappropriate to assume equal commission earnings for each workweek. For example, the number of hours worked each week may vary significantly. In such cases, rather than following the method outlined in paragraph (a) of this section, it is reasonable to assume that the employee earned an equal amount of commission in each hour that he worked during the commission computation period. The amount of the commission payment should be divided by the number of hours worked in the period in order to determine the amount of the increase in the regular rate allocable to the commission payment. One-half of this figure should be multiplied by the number of statutory overtime hours worked by the employee in the overtime workweeks of the commission computation period, to get the amount of additional overtime compensation due for this period. Example: An employee received commissions of $192 for a commission computation period of 96 hours, including 16 overtime hours (i.e., two workweeks of 48 hours each). Dividing the $192 by 96 gives a $2 increase in the hourly rate. If the employee is entitled to overtime after 40 hours in a workweek, he is due an additional $16 for the commission computation period, representing an additional $1 for each of the 16 overtime hours. Credits [33 FR 986, Jan. 26, 1968, as amended at 46 FR 7310, Jan. 23, 1981] AUTHORITY: 52 Stat. 1060, as amended; 29 U.S.C. 201 et seq. Section 778.200 also issued under Pub.L. 106–202, 114 Stat. 308 (29 U.S.C. 207(e) and (h)). Current through January 31, 2019; 84 FR 957. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 64 of 520 PageID 700 § 779.320 Partial list of establishments whose sales or service..., 29 C.F.R. § 779.320 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Code of Federal Regulations Title 29. Labor Subtitle B. Regulations Relating to Labor Chapter V. Wage and Hour Division, Department of Labor Subchapter B. Statements of General Policy or Interpretation Not Directly Related to Regulations Part 779. The Fair Labor Standards Act as Applied to Retailers of Goods or Services (Refs & Annos) Subpart D. Exemptions for Certain Retail or Service Establishments Making Sales of Goods and Services “Recognized as Retail” 29 C.F.R. § 779.320 § 779.320 Partial list of establishments whose sales or service may be recognized as retail. Currentness Antique shops. Auto courts. Automobile dealers' establishments. Automobile laundries. Automobile repair shops. Barber shops. Beauty shops. Bicycle shops. Billiard parlors. Book stores. Bowling alleys. Butcher shops. Cafeterias. Cemeteries. China, glassware stores. Cigar stores. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 65 of 520 PageID 701 § 779.320 Partial list of establishments whose sales or service..., 29 C.F.R. § 779.320 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Clothing stores. Coal yards. Confectionery stores. Crematories. Dance halls. Delicatessen stores. Department stores. Drapery stores. Dress-suit rental establishments. Drug stores. Dry goods stores. Embalming establishments. Farm implement dealers. Filling stations. Floor covering stores. Florists. Funeral homes. Fur repair and storage shops. Fur shops. Furniture stores. Gift, novelty and souvenir shops. Grocery stores. Hardware stores. Hosiery shops. Hotels. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 66 of 520 PageID 702 § 779.320 Partial list of establishments whose sales or service..., 29 C.F.R. § 779.320 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Household appliance stores. Household furniture storage and moving establishments. Household refrigerator service and repair shops. Infants' wear shops. Jewelry stores. Liquor stores. Luggage stores. Lumber yards. Masseur establishments. Millinery shops. Musical instrument stores and repair shops. Newsstands. Paint stores. Public parking lots. Photographic supply and camera shops. Piano tuning establishments. Public baths. Public garages. Recreational camps. Reducing establishments. Restaurants. Roadside diners. Scalp-treatment establishments. Shoe repair shops. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 67 of 520 PageID 703 § 779.320 Partial list of establishments whose sales or service..., 29 C.F.R. § 779.320 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Shoeshine parlors. Sporting goods stores. Stationery stores. Taxidermists. Theatres. Tourist homes. Trailer camps. Undertakers. Variety shops. Watch, clock and jewelry repair establishments. Credits [36 FR 14466, Aug. 6, 1971] AUTHORITY: Secs. 1–19, 52 Stat. 1060, as amended; 75 Stat. 65; Sec. 29(B), Pub.L. 93–259, 88 Stat. 55; 29 U.S.C. 201–219. Current through January 31, 2019; 84 FR 957. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 68 of 520 PageID 704 § 779.411 Employee of a “retail or service establishment”., 29 C.F.R. § 779.411 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 Code of Federal Regulations Title 29. Labor Subtitle B. Regulations Relating to Labor Chapter V. Wage and Hour Division, Department of Labor Subchapter B. Statements of General Policy or Interpretation Not Directly Related to Regulations Part 779. The Fair Labor Standards Act as Applied to Retailers of Goods or Services (Refs & Annos) Subpart E. Provisions Relating to Certain Employees of Retail or Service Establishments Employees Compensated Principally by Commissions 29 C.F.R. § 779.411 § 779.411 Employee of a “retail or service establishment”. Currentness In order for an employee to come within the exemption from the overtime pay requirement provided by section 7(i) for certain employees receiving commissions, the employee must be employed by a retail or service establishment. The term “retail or service establishment” is defined in section 13(a)(2) of the Act. The definition is set forth in § 779.24; its application is considered at length in subpart D of this part. As used in section 7(i), as in other provisions of the Act, the term “retail or service establishment” means an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry. AUTHORITY: Secs. 1–19, 52 Stat. 1060, as amended; 75 Stat. 65; Sec. 29(B), Pub.L. 93–259, 88 Stat. 55; 29 U.S.C. 201–219. Current through January 31, 2019; 84 FR 957. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 69 of 520 PageID 705 § 203. Definitions, 29 USCA § 203 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Unconstitutional or PreemptedPrior Version Held Unconstitutional by Laro v. New Hampshire, 1st Cir.(N.H.), Aug. 06, 2001 KeyCite Yellow Flag - Negative TreatmentProposed Legislation United States Code Annotated Title 29. Labor Chapter 8. Fair Labor Standards (Refs & Annos) 29 U.S.C.A. § 203 § 203. Definitions Effective: March 23, 2018 Currentness As used in this chapter-- (a) “Person” means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons. (b) “Commerce” means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof. (c) “State” means any State of the United States or the District of Columbia or any Territory or possession of the United States. (d) “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization. (e)(1) Except as provided in paragraphs (2), (3), and (4), the term “employee” means any individual employed by an employer. (2) In the case of an individual employed by a public agency, such term means-- (A) any individual employed by the Government of the United States-- (i) as a civilian in the military departments (as defined in section 102 of Title 5), (ii) in any executive agency (as defined in section 105 of such title), Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 70 of 520 PageID 706 § 203. Definitions, 29 USCA § 203 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 (iii) in any unit of the judicial branch of the Government which has positions in the competitive service, (iv) in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, (v) in the Library of Congress, or (vi) the 1 Government Publishing Office; (B) any individual employed by the United States Postal Service or the Postal Regulatory Commission; and (C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual-- (i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and (ii) who-- (I) holds a public elective office of that State, political subdivision, or agency, (II) is selected by the holder of such an office to be a member of his personal staff, (III) is appointed by such an officeholder to serve on a policymaking level, (IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or (V) is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency. (3) For purposes of subsection (u), such term does not include any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer's immediate family. (4)(A) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if-- (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 71 of 520 PageID 707 § 203. Definitions, 29 USCA § 203 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 (ii) such services are not the same type of services which the individual is employed to perform for such public agency. (B) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may volunteer to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement. (5) The term “employee” does not include individuals who volunteer their services solely for humanitarian purposes to private non-profit food banks and who receive from the food banks groceries. (f) “Agriculture” includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. (g) “Employ” includes to suffer or permit to work. (h) “Industry” means a trade, business, industry, or other activity, or branch or group thereof, in which individuals are gainfully employed. (i) “Goods” means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof. (j) “Produced” means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State. (k) “Sale” or “sell” includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition. (l) “Oppressive child labor” means a condition of employment under which (1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being) in any occupation, or (2) any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 72 of 520 PageID 708 § 203. Definitions, 29 USCA § 203 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 of Labor shall find and by order declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being; but oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child-labor age. The Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being. (m)(1) “Wage” paid to any employee includes the reasonable cost, as determined by the Administrator, to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees: Provided, That the cost of board, lodging, or other facilities shall not be included as a part of the wage paid to any employee to the extent it is excluded therefrom under the terms of a bona fide collective-bargaining agreement applicable to the particular employee: Provided further, That the Secretary is authorized to determine the fair value of such board, lodging, or other facilities for defined classes of employees and in defined areas, based on average cost to the employer or to groups of employers similarly situated, or average value to groups of employees, or other appropriate measures of fair value. Such evaluations, where applicable and pertinent, shall be used in lieu of actual measure of cost in determining the wage paid to any employee. (2)(A) In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee's employer shall be an amount equal to-- (i) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996; and (ii) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in clause (i) and the wage in effect under section 206(a)(1) of this title. The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The preceding 2 sentences shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection, and all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. (B) An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees' tips, regardless of whether or not the employer takes a tip credit. (n) “Resale” shall not include the sale of goods to be used in residential or farm building construction, repair, or maintenance: Provided, That the sale is recognized as a bona fide retail sale in the industry. (o) Hours Worked.--In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 73 of 520 PageID 709 § 203. Definitions, 29 USCA § 203 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. (p) “American vessel” includes any vessel which is documented or numbered under the laws of the United States. (q) “Secretary” means the Secretary of Labor. (r)(1) “Enterprise” means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor. Within the meaning of this subsection, a retail or service establishment which is under independent ownership shall not be deemed to be so operated or controlled as to be other than a separate and distinct enterprise by reason of any arrangement, which includes, but is not necessarily limited to, an agreement, (A) that it will sell, or sell only, certain goods specified by a particular manufacturer, distributor, or advertiser, or (B) that it will join with other such establishments in the same industry for the purpose of collective purchasing, or (C) that it will have the exclusive right to sell the goods or use the brand name of a manufacturer, distributor, or advertiser within a specified area, or by reason of the fact that it occupies premises leased to it by a person who also leases premises to other retail or service establishments. (2) For purposes of paragraph (1), the activities performed by any person or persons-- (A) in connection with the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is operated for profit or not for profit), or (B) in connection with the operation of a street, suburban or interurban electric railway, or local trolley or motorbus carrier, if the rates and services of such railway or carrier are subject to regulation by a State or local agency (regardless of whether or not such railway or carrier is public or private or operated for profit or not for profit), or (C) in connection with the activities of a public agency, shall be deemed to be activities performed for a business purpose. (s)(1) “Enterprise engaged in commerce or in the production of goods for commerce” means an enterprise that-- (A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 74 of 520 PageID 710 § 203. Definitions, 29 USCA § 203 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated); (B) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit); or (C) is an activity of a public agency. (2) Any establishment that has as its only regular employees the owner thereof or the parent, spouse, child, or other member of the immediate family of such owner shall not be considered to be an enterprise engaged in commerce or in the production of goods for commerce or a part of such an enterprise. The sales of such an establishment shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of this subsection. (t) “Tipped employee” means any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips. (u) “Man-day” means any day during which an employee performs any agricultural labor for not less than one hour. (v) “Elementary school” means a day or residential school which provides elementary education, as determined under State law. (w) “Secondary school” means a day or residential school which provides secondary education, as determined under State law. (x) “Public agency” means the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Regulatory Commission), a State, or a political subdivision of a State; or any interstate governmental agency. (y) “Employee in fire protection activities” means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who-- (1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 75 of 520 PageID 711 § 203. Definitions, 29 USCA § 203 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 CREDIT(S) (June 25, 1938, c. 676, § 3, 52 Stat. 1060; 1946 Reorg.Plan No. 2, § 1(b), eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095; Oct. 26, 1949, c. 736, § 3, 63 Stat. 911; Pub.L. 87-30, § 2, May 5, 1961, 75 Stat. 65; Pub.L. 89-601, Title I, §§ 101-103, Title II, § 215(a), Sept. 23, 1966, 80 Stat. 830-832, 837; Pub.L. 92-318, Title IX, § 906(b)(2), (3), June 23, 1972, 86 Stat. 375; Pub.L. 93-259, §§ 6(a), 13(e), Apr. 8, 1974, 88 Stat. 58, 64; Pub.L. 95-151, §§ 3(a), (b), 9(a)-(c), Nov. 1, 1977, 91 Stat. 1249, 1251; Pub.L. 99-150, §§ 4(a), 5, Nov. 13, 1985, 99 Stat. 790; Pub.L. 101-157, §§ 3(a), (d), 5, Nov. 17, 1989, 103 Stat. 938, 939, 941; Pub.L. 104-1, Title II, § 203(d), Jan. 23, 1995, 109 Stat. 10; Pub.L. 104-188, [Title II], § 2105(b), Aug. 20, 1996, 110 Stat. 1929; Pub.L. 105-221, § 2, Aug. 7, 1998, 112 Stat. 1248; Pub.L. 106-151, § 1, Dec. 9, 1999, 113 Stat. 1731; Pub.L. 109-435, Title VI, § 604(f), Dec. 20, 2006, 120 Stat. 3242; Pub.L. 113-235, Div. H, Title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub.L. 115-141, Div. S, Title XII, § 1201(a), Mar. 23, 2018, 132 Stat. 1148.) VALIDITY Notes of Decisions (2977) Footnotes 1 So in original. Probably should be preceded by “in”. 29 U.S.C.A. § 203, 29 USCA § 203 Current through P.L. 115-281. Also includes P.L. 115-283 to 115-333, and 115-335 to 115-338. Title 26 current through P.L. 115-442. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 76 of 520 PageID 712 § 206. Minimum wage, 29 USCA § 206 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Proposed Legislation United States Code Annotated Title 29. Labor Chapter 8. Fair Labor Standards (Refs & Annos) 29 U.S.C.A. § 206 § 206. Minimum wage Effective: June 30, 2016 Currentness (a) Employees engaged in commerce; home workers in Puerto Rico and Virgin Islands; employees in American Samoa; seamen on American vessels; agricultural employees Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates: (1) except as otherwise provided in this section, not less than-- (A) $5.85 an hour, beginning on the 60th day after May 25, 2007; (B) $6.55 an hour, beginning 12 months after that 60th day; and (C) $7.25 an hour, beginning 24 months after that 60th day; (2) if such employee is a home worker in Puerto Rico or the Virgin Islands, not less than the minimum piece rate prescribed by regulation or order; or, if no such minimum piece rate is in effect, any piece rate adopted by such employer which shall yield, to the proportion or class of employees prescribed by regulation or order, not less than the applicable minimum hourly wage rate. Such minimum piece rates or employer piece rates shall be commensurate with, and shall be paid in lieu of, the minimum hourly wage rate applicable under the provisions of this section. The Administrator, or his authorized representative, shall have power to make such regulations or orders as are necessary or appropriate to carry out any of the provisions of this paragraph, including the power without limiting the generality of the foregoing, to define any operation or occupation which is performed by such home work employees in Puerto Rico or the Virgin Islands; to establish minimum piece rates for any operation or occupation so defined; to prescribe the method and procedure for ascertaining and promulgating minimum piece rates; to prescribe standards for employer piece rates, including the proportion or class of employees who shall receive not less than the minimum hourly wage rate; to define the term “home worker”; and to prescribe the conditions under which employers, agents, contractors, and subcontractors shall cause goods to be produced by home workers; WESTLAW Case 2:16-cv-00746- PC-MRM Document 109 Filed 02/06/19 Page 77 of 520 PageID 713 § 206. Minimum wage, 29 USCA § 206 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 (3) if such employee is employed as a seaman on an American vessel, not less than the rate which will provide to the employee, for the period covered by the wage payment, wages equal to compensation at the hourly rate prescribed by paragraph (1) of this subsection for all hours during such period when he was actually on duty (including periods aboard ship when the employee was on watch or was, at the direction of a superior officer, performing work or standing by, but not including off-duty periods which are provided pursuant to the employment agreement); or (4) if such employee is employed in agriculture, not less than the minimum wage rate in effect under paragraph (1) after December 31, 1977. (5) Redesignated (4) (b) Additional applicability to employees pursuant to subsequent amendatory provisions Every employer shall pay to each of his employees (other than an employee to whom subsection (a)(5) applies) who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweek is brought within the purview of this section by the amendments made to this chapter by the Fair Labor Standards Amendments of 1966, title IX of the Education Amendments of 1972, or the Fair Labor Standards Amendments of 1974, wages at the following rate: Effective after December 31, 1977, not less than the minimum wage rate in effect under subsection (a)(1). (c) Repealed. Pub.L. 104-188, [Title II], § 2104(c), Aug. 20, 1996, 110 Stat. 1929 (d) Prohibition of sex discrimination (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. (2) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection. (3) For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this chapter. WESTl.AW Case 2:16-cv-00746- PC-MRM Document 109 Filed 02/06/19 Page 78 of 520 PageID 714 § 206. Minimum wage, 29 USCA § 206 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 (4) As used in this subsection, the term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. (e) Employees of employers providing contract services to United States (1) Notwithstanding the provisions of section 213 of this title (except subsections (a)(1) and (f) thereof), every employer providing any contract services (other than linen supply services) under a contract with the United States or any subcontract thereunder shall pay to each of his employees whose rate of pay is not governed by chapter 67 of Title 41 or to whom subsection (a)(1) of this section is not applicable, wages at rates not less than the rates provided for in subsection (b) of this section. (2) Notwithstanding the provisions of section 213 of this title (except subsections (a)(1) and (f) thereof) and the provisions of chapter 67 of Title 41, every employer in an establishment providing linen supply services to the United States under a contract with the United States or any subcontract thereunder shall pay to each of his employees in such establishment wages at rates not less than those prescribed in subsection (b), except that if more than 50 per centum of the gross annual dollar volume of sales made or business done by such establishment is derived from providing such linen supply services under any such contracts or subcontracts, such employer shall pay to each of his employees in such establishment wages at rates not less than those prescribed in subsection (a)(1) of this section. (f) Employees in domestic service Any employee-- (1)who in any workweek is employed in domestic service in a household shall be paid wages at a rate not less than the wage rate in effect under subsection (b) unless such employee's compensation for such service would not because of section 209(a)(6) of the Social Security Act constitute wages for the purposes of title II of such Act, or (2) who in any workweek-- (A) is employed in domestic service in one or more households, and (B) is so employed for more than 8 hours in the aggregate, shall be paid wages for such employment in such workweek at a rate not less than the wage rate in effect under subsection (b). (g) Newly hired employees who are less than 20 years old WESTl.AW Case 2:16-cv-00746- PC-MRM Document 109 Filed 02/06/19 Page 79 of 520 PageID 715 § 206. Minimum wage, 29 USCA § 206 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 (1) In lieu of the rate prescribed by subsection (a)(1), any employer may pay any employee of such employer, during the first 90 consecutive calendar days after such employee is initially employed by such employer, a wage which is not less than $4.25 an hour. (2) In lieu of the rate prescribed by subsection (a)(1), the Governor of Puerto Rico, subject to the approval of the Financial Oversight and Management Board established pursuant to section 2121 of Title 48, may designate a time period not to exceed four years during which employers in Puerto Rico may pay employees who are initially employed after June 30, 2016, a wage which is not less than the wage described in paragraph (1). Notwithstanding the time period designated, such wage shall not continue in effect after such Board terminates in accordance with section 2149 of Title 48. (3) No employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in paragraph (1) or (2). (4) Any employer who violates this subsection shall be considered to have violated section 215(a)(3) of this title. (5) This subsection shall only apply to an employee who has not attained the age of 20 years, except in the case of the wage applicable in Puerto Rico, 25 years, until such time as the Board described in paragraph (2) terminates in accordance with section 2149 of Title 48. CREDIT(S) (June 25, 1938, c. 676, § 6, 52 Stat. 1062; June 26, 1940, c. 432, § 3(e), (f), 54 Stat. 616; Oct. 26, 1949, c. 736, § 6, 63 Stat. 912; Aug. 12, 1955, c. 867, § 3, 69 Stat. 711; Aug. 8, 1956, c. 1035, § 2, 70 Stat. 1118; Pub.L. 87-30, § 5, May 5, 1961, 75 Stat. 67; Pub.L. 88-38, § 3, June 10, 1963, 77 Stat. 56; Pub.L. 89-601, Title III, §§ 301 to 305, Sept. 23, 1966, 80 Stat. 838, 839, 841; Pub.L. 93-259, §§ 2 to 4, 5(b), 7(b)(1), Apr. 8, 1974, 88 Stat. 55, 56, 62; Pub.L. 95-151, § 2(a) to (d)(2), Nov. 1, 1977, 91 Stat. 1245, 1246; Pub.L. 101-157, §§ 2, 4(b), Nov. 17, 1989, 103 Stat. 938, 940; Pub.L. 101-239, Title X, § 10208(d)(2)(B)(i), Dec. 19, 1989, 103 Stat. 2481; Pub.L. 104-188, [Title II], §§ 2104(b), (c), 2105(c), Aug. 20, 1996, 110 Stat. 1928, 1929; Pub.L. 110-28, Title VIII, §§ 8102(a), 8103(c)(1)(B), May 25, 2007, 121 Stat. 188, 189; Pub.L. 114-187, Title IV, § 403, June 30, 2016, 130 Stat. 586.) 29 U.S.C.A. § 206, 29 USCA § 206 Current through P.L. 115-281. Also includes P.L. 115-283 to 115-333, and 115-335 to 115-338. Title 26 current through P.L. 115-442. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746- PC-MRM Document 109 Filed 02/06/19 Page 80 of 520 PageID 716 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Red Flag - Severe Negative Treatment Unconstitutional or PreemptedHeld Unconstitutional as Not Severable Texas v. United States, N.D.Tex., Dec. 14, 2018 KeyCite Yellow Flag - Negative TreatmentProposed Legislation United States Code Annotated Title 29. Labor Chapter 8. Fair Labor Standards (Refs & Annos) 29 U.S.C.A. § 207 § 207. Maximum hours Effective: March 23, 2010 Currentness (a) Employees engaged in interstate commerce; additional applicability to employees pursuant to subsequent amendatory provisions (1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. (2) No employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweek is brought within the purview of this subsection by the amendments made to this chapter by the Fair Labor Standards Amendments of 1966-- (A) for a workweek longer than forty-four hours during the first year from the effective date of the Fair Labor Standards Amendments of 1966, (B) for a workweek longer than forty-two hours during the second year from such date, or (C) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. (b) Employment pursuant to collective bargaining agreement; employment by independently owned and controlled local enterprise engaged in distribution of petroleum products WESTLAW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 81 of 520 PageID 717 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in excess of that specified in such subsection without paying the compensation for overtime employment prescribed therein if such employee is so employed-- (1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than one thousand and forty hours during any period of twenty-six consecutive weeks; or (2) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that during a specified period of fifty-two consecutive weeks the employee shall be employed not more than two thousand two hundred and forty hours and shall be guaranteed not less than one thousand eight hundred and forty-hours (or not less than forty-six weeks at the normal number of hours worked per week, but not less than thirty hours per week) and not more than two thousand and eighty hours of employment for which he shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum workweek applicable to such employee under subsection (a) or two thousand and eighty in such period at rates not less than one and one-half times the regular rate at which he is employed; or (3) by an independently owned and controlled local enterprise (including an enterprise with more than one bulk storage establishment) engaged in the wholesale or bulk distribution of petroleum products if-- (A) the annual gross volume of sales of such enterprise is less than $1,000,000 exclusive of excise taxes, (B) more than 75 per centum of such enterprise's annual dollar volume of sales is made within the State in which such enterprise is located, and (C) not more than 25 per centum of the annual dollar volume of sales of such enterprise is to customers who are engaged in the bulk distribution of such products for resale, and such employee receives compensation for employment in excess of forty hours in any workweek at a rate not less than one and one-half times the minimum wage rate applicable to him under section 206 of this title, and if such employee receives compensation for employment in excess of twelve hours in any workday, or for employment in excess of fifty-six hours in any workweek, as the case may be, at a rate not less than one and one-half times the regular rate at which he is employed. (c), (d) Repealed. Pub.L. 93-259, § 19(e), Apr. 8, 1974, 88 Stat. 66 (e) “Regular rate” defined As used in this section the “regular rate” at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include-- WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 82 of 520 PageID 718 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 (1) sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency; (2) payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer's interests and properly reimbursable by the employer; and other similar payments to an employee which are not made as compensation for his hours of employment; (3) Sums 1 paid in recognition of services performed during a given period if either, (a) both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly; or (b) the payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan, meeting the requirements of the Administrator set forth in appropriate regulations which he shall issue, having due regard among other relevant factors, to the extent to which the amounts paid to the employee are determined without regard to hours of work, production, or efficiency; or (c) the payments are talent fees (as such talent fees are defined and delimited by regulations of the Administrator) paid to performers, including announcers, on radio and television programs; (4) contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees; (5) extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee under subsection (a) or in excess of the employee's normal working hours or regular working hours, as the case may be; (6) extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days; (7) extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek (not exceeding the maximum workweek applicable to such employee under subsection (a), 2 where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek; or (8) any value or income derived from employer-provided grants or rights provided pursuant to a stock option, stock appreciation right, or bona fide employee stock purchase program which is not otherwise excludable under any of paragraphs (1) through (7) if-- WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 83 of 520 PageID 719 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 (A) grants are made pursuant to a program, the terms and conditions of which are communicated to participating employees either at the beginning of the employee's participation in the program or at the time of the grant; (B) in the case of stock options and stock appreciation rights, the grant or right cannot be exercisable for a period of at least 6 months after the time of grant (except that grants or rights may become exercisable because of an employee's death, disability, retirement, or a change in corporate ownership, or other circumstances permitted by regulation), and the exercise price is at least 85 percent of the fair market value of the stock at the time of grant; (C) exercise of any grant or right is voluntary; and (D) any determinations regarding the award of, and the amount of, employer-provided grants or rights that are based on performance are-- (i) made based upon meeting previously established performance criteria (which may include hours of work, efficiency, or productivity) of any business unit consisting of at least 10 employees or of a facility, except that, any determinations may be based on length of service or minimum schedule of hours or days of work; or (ii) made based upon the past performance (which may include any criteria) of one or more employees in a given period so long as the determination is in the sole discretion of the employer and not pursuant to any prior contract. (f) Employment necessitating irregular hours of work No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under subsection (a) if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement (1) specifies a regular rate of pay of not less than the minimum hourly rate provided in subsection (a) or (b) of section 206 of this title (whichever may be applicable) and compensation at not less than one and one-half times such rate for all hours worked in excess of such maximum workweek, and (2) provides a weekly guaranty of pay for not more than sixty hours based on the rates so specified. (g) Employment at piece rates No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under such subsection if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of the work, the amount paid to the employee for the number of hours worked by him in such workweek in excess of the maximum workweek applicable to such employee under such subsection-- (1) in the case of an employee employed at piece rates, is computed at piece rates not less than one and one-half times the bona fide piece rates applicable to the same work when performed during nonovertime hours; or WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 84 of 520 PageID 720 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 (2) in the case of an employee performing two or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half times such bona fide rates applicable to the same work when performed during nonovertime hours; or (3) is computed at a rate not less than one and one-half times the rate established by such agreement or understanding as the basic rate to be used in computing overtime compensation thereunder: Provided, That the rate so established shall be authorized by regulation by the Administrator as being substantially equivalent to the average hourly earnings of the employee, exclusive of overtime premiums, in the particular work over a representative period of time; and if (i) the employee's average hourly earnings for the workweek exclusive of payments described in paragraphs (1) through (7) of subsection (e) are not less than the minimum hourly rate required by applicable law, and (ii) extra overtime compensation is properly computed and paid on other forms of additional pay required to be included in computing the regular rate. (h) Credit toward minimum wage or overtime compensation of amounts excluded from regular rate (1) Except as provided in paragraph (2), sums excluded from the regular rate pursuant to subsection (e) shall not be creditable toward wages required under section 206 of this title or overtime compensation required under this section. (2) Extra compensation paid as described in paragraphs (5), (6), and (7) of subsection (e) shall be creditable toward overtime compensation payable pursuant to this section. (i) Employment by retail or service establishment No employer shall be deemed to have violated subsection (a) by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee. (j) Employment in hospital or establishment engaged in care of sick, aged or mentally ill No employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises shall be deemed to have violated subsection (a) if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of the work, a work period of fourteen consecutive days is accepted in lieu of the workweek of seven consecutive days for purposes of overtime computation and if, for his employment in excess of eight hours in any workday and in excess of eighty hours in such fourteen-day period, the employee receives compensation at a rate not less than one and one-half times the regular rate at which he is employed. (k) Employment by public agency engaged in fire protection or law enforcement activities WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 85 of 520 PageID 721 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 No public agency shall be deemed to have violated subsection (a) with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if-- (1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or (2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed. (l) Employment in domestic service in one or more households No employer shall employ any employee in domestic service in one or more households for a workweek longer than forty hours unless such employee receives compensation for such employment in accordance with subsection (a). (m) Employment in tobacco industry For a period or periods of not more than fourteen workweeks in the aggregate in any calendar year, any employer may employ any employee for a workweek in excess of that specified in subsection (a) without paying the compensation for overtime employment prescribed in such subsection, if such employee-- (1) is employed by such employer-- (A) to provide services (including stripping and grading) necessary and incidental to the sale at auction of green leaf tobacco of type 11, 12, 13, 14, 21, 22, 23, 24, 31, 35, 36, or 37 (as such types are defined by the Secretary of Agriculture), or in auction sale, buying, handling, stemming, redrying, packing, and storing of such tobacco, (B) in auction sale, buying, handling, sorting, grading, packing, or storing green leaf tobacco of type 32 (as such type is defined by the Secretary of Agriculture), or (C) in auction sale, buying, handling, stripping, sorting, grading, sizing, packing, or stemming prior to packing, of perishable cigar leaf tobacco of type 41, 42, 43, 44, 45, 46, 51, 52, 53, 54, 55, 61, or 62 (as such types are defined by the Secretary of Agriculture); and (2) receives for-- WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 86 of 520 PageID 722 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 (A) such employment by such employer which is in excess of ten hours in any workday, and (B) such employment by such employer which is in excess of forty-eight hours in any workweek, compensation at a rate not less than one and one-half times the regular rate at which he is employed. An employer who receives an exemption under this subsection shall not be eligible for any other exemption under this section. (n) Employment by street, suburban or interurban electric railway, or local trolley or motorbus carrier In the case of an employee of an employer engaged in the business of operating a street, suburban or interurban electric railway, or local trolley or motorbus carrier (regardless of whether or not such railway or carrier is public or private or operated for profit or not for profit), in determining the hours of employment of such an employee to which the rate prescribed by subsection (a) applies there shall be excluded the hours such employee was employed in charter activities by such employer if (1) the employee's employment in such activities was pursuant to an agreement or understanding with his employer arrived at before engaging in such employment, and (2) if employment in such activities is not part of such employee's regular employment. (o) Compensatory time (1) Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section. (2) A public agency may provide compensatory time under paragraph (1) only-- (A) pursuant to-- (i) applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of such employees; or (ii) in the case of employees not covered by subclause (i), an agreement or understanding arrived at between the employer and employee before the performance of the work; and (B) if the employee has not accrued compensatory time in excess of the limit applicable to the employee prescribed by paragraph (3). In the case of employees described in clause (A)(ii) hired prior to April 15, 1986, the regular practice in effect on April 15, 1986, with respect to compensatory time off for such employees in lieu of the receipt of overtime compensation, shall constitute an agreement or understanding under such clause (A)(ii). Except as provided in the previous sentence, the WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 87 of 520 PageID 723 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 provision of compensatory time off to such employees for hours worked after April 14, 1986, shall be in accordance with this subsection. (3)(A) If the work of an employee for which compensatory time may be provided included work in a public safety activity, an emergency response activity, or a seasonal activity, the employee engaged in such work may accrue not more than 480 hours of compensatory time for hours worked after April 15, 1986. If such work was any other work, the employee engaged in such work may accrue not more than 240 hours of compensatory time for hours worked after April 15, 1986. Any such employee who, after April 15, 1986, has accrued 480 or 240 hours, as the case may be, of compensatory time off shall, for additional overtime hours of work, be paid overtime compensation. (B) If compensation is paid to an employee for accrued compensatory time off, such compensation shall be paid at the regular rate earned by the employee at the time the employee receives such payment. (4) An employee who has accrued compensatory time off authorized to be provided under paragraph (1) shall, upon termination of employment, be paid for the unused compensatory time at a rate of compensation not less than-- (A) the average regular rate received by such employee during the last 3 years of the employee's employment, or (B) the final regular rate received by such employee, whichever is higher 3 (5) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency-- (A) who has accrued compensatory time off authorized to be provided under paragraph (1), and (B) who has requested the use of such compensatory time, shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency. (6) The hours an employee of a public agency performs court reporting transcript preparation duties shall not be considered as hours worked for the purposes of subsection (a) if-- (A) such employee is paid at a per-page rate which is not less than-- (i) the maximum rate established by State law or local ordinance for the jurisdiction of such public agency, (ii) the maximum rate otherwise established by a judicial or administrative officer and in effect on July 1, 1995, or WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 88 of 520 PageID 724 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 (iii) the rate freely negotiated between the employee and the party requesting the transcript, other than the judge who presided over the proceedings being transcribed, and (B) the hours spent performing such duties are outside of the hours such employee performs other work (including hours for which the agency requires the employee's attendance) pursuant to the employment relationship with such public agency. For purposes of this section, the amount paid such employee in accordance with subparagraph (A) for the performance of court reporting transcript preparation duties, shall not be considered in the calculation of the regular rate at which such employee is employed. (7) For purposes of this subsection-- (A) the term “overtime compensation” means the compensation required by subsection (a), and (B) the terms “compensatory time” and “compensatory time off” mean hours during which an employee is not working, which are not counted as hours worked during the applicable workweek or other work period for purposes of overtime compensation, and for which the employee is compensated at the employee's regular rate. (p) Special detail work for fire protection and law enforcement employees; occasional or sporadic employment; substitution (1) If an individual who is employed by a State, political subdivision of a State, or an interstate governmental agency in fire protection or law enforcement activities (including activities of security personnel in correctional institutions) and who, solely at such individual's option, agrees to be employed on a special detail by a separate or independent employer in fire protection, law enforcement, or related activities, the hours such individual was employed by such separate and independent employer shall be excluded by the public agency employing such individual in the calculation of the hours for which the employee is entitled to overtime compensation under this section if the public agency-- (A) requires that its employees engaged in fire protection, law enforcement, or security activities be hired by a separate and independent employer to perform the special detail, (B) facilitates the employment of such employees by a separate and independent employer, or (C) otherwise affects the condition of employment of such employees by a separate and independent employer. (2) If an employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency undertakes, on an occasional or sporadic basis and solely at the employee's option, part-time employment for the public agency which is in a different capacity from any capacity in which the employee is regularly employed with the public agency, the hours such employee was employed in performing the different employment shall be excluded WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 89 of 520 PageID 725 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section. (3) If an individual who is employed in any capacity by a public agency which is a State, political subdivision of a State, or an interstate governmental agency, agrees, with the approval of the public agency and solely at the option of such individual, to substitute during scheduled work hours for another individual who is employed by such agency in the same capacity, the hours such employee worked as a substitute shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section. (q) Maximum hour exemption for employees receiving remedial education Any employer may employ any employee for a period or periods of not more than 10 hours in the aggregate in any workweek in excess of the maximum workweek specified in subsection (a) without paying the compensation for overtime employment prescribed in such subsection, if during such period or periods the employee is receiving remedial education that is-- (1) provided to employees who lack a high school diploma or educational attainment at the eighth grade level; (2) designed to provide reading and other basic skills at an eighth grade level or below; and (3) does not include job specific training. (r) Reasonable break time for nursing mothers (1) An employer shall provide-- (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. (2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose. (3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business. (4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection. WESTl.AW Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 90 of 520 PageID 726 § 207. Maximum hours, 29 USCA § 207 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 CREDIT(S) (June 25, 1938, c. 676, § 7, 52 Stat. 1063; Oct. 29, 1941, c. 461, 55 Stat. 756; July 20, 1949, c. 352, § 1, 63 Stat. 446; Oct. 26, 1949, c. 736, § 7, 63 Stat. 912; Pub.L. 87-30, § 6, May 5, 1961, 75 Stat. 69; Pub.L. 89-601, Title II, §§ 204(c), (d), 212(b), Title IV, §§ 401 to 403, Sept. 23, 1966, 80 Stat. 835, 837, 841, 842; Pub.L. 93-259, §§ 6(c)(1), 7(b)(2), 9(a), 12(b), 19, 21(a), Apr. 8, 1974, 88 Stat. 60, 62, 64, 66, 68; Pub.L. 99-150, §§ 2(a), 3(a) to (c)(1), Nov. 13, 1985, 99 Stat. 787, 789; Pub.L. 101-157, § 7, Nov. 17, 1989, 103 Stat. 944; Pub.L. 104-26, § 2, Sept. 6, 1995, 109 Stat. 264; Pub.L. 106-202, § 2(a), (b), May 18, 2000, 114 Stat. 308; Pub.L. 111-148, Title IV, § 4207, Mar. 23, 2010, 124 Stat. 577.) Footnotes 1 So in original. Probably should not be capitalized. 2 So in original. Probably should have closed parentheses. 3 So in original. Probably should be followed by a period. 29 U.S.C.A. § 207, 29 USCA § 207 Current through P.L. 115-281. Also includes P.L. 115-283 to 115-333, and 115-335 to 115-338. Title 26 current through P.L. 115-442. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SP -MRM Document 109 Filed 02/06/19 Page 91 of 520 PageID 727 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Torres-Lopez v. May, 9th Cir.(Or.), April 9, 1997 20 F.3d 434 United States Court of Appeals, Eleventh Circuit. Vergnaud AIMABLE; Alain Alcin; Gerta Alcin; Orasis Alcindor; Joseph Miguel Alcius, et al., Plaintiffs–Appellants, v. LONG AND SCOTT FARMS; John Miller, Jr., Defendants–Appellees. Leclerc DENEUS; Charlonet Gue; Alphonse Amilcar; Marie Andre; Rosette Charles; Donald Ernest; Wilfride Jean Eugene, et al., Plaintiffs–Appellants, v. LONG AND SCOTT FARMS; John Miller, Jr., Defendants–Appellees. No. 92–2749. | May 10, 1994. Synopsis Migrant and seasonal farm workers brought two suits against farm labor contractor and farm under Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA). The suits were consolidated. The United States District Court for the Middle District of Florida, Nos. 89–96–CIV- OC–10, 90–18–CIV-OC–10, Wm. Terrell Hodges, J., held that contractor was laborers' employer for purposes of FLSA and MSAWPA, but found that farm was not joint employer, and laborers appealed. The Court of Appeals, Tjoflat, Chief Judge, held that upon consideration of the five factors of the MSAWPA regulations for determining whether farm was laborers' joint employer, and upon consideration of six nonregulatory factors, laborers were not economically dependent upon, and thus were not employees of, the farm. Affirmed. West Headnotes (17) [1] Labor and Employment Employment relationship Labor and Employment Employers To determine whether employer/employee relationship exists for purposes of federal welfare legislation, court looks not to common-law definitions of those terms, but rather to “economic reality” of all circumstances concerning whether putative employee is economically dependent upon alleged employer. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 41 Cases that cite this headnote [2] Labor and Employment Joint employers In view of language in regulations under MSAWPA stating that factors to be used by Secretary of Labor in defining joint employment include, but are not limited to, five regulatory factors set out in regulations, court would not resolve issue whether farm, which contracted with farm labor contractor to provide laborers, was “joint employer” of laborers by relying solely on the five regulatory factors. Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 1 Cases that cite this headnote [3] Labor and Employment Questions of Law or Fact Labor and Employment Proceedings Question whether farm, which contracted with farm labor contractor to provide laborers to harvest its crops, was “joint employer” of those laborers for purposes of FLSA and Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 92 of 520 PageID 728 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 MSAWPA, was question of law. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. Cases that cite this headnote [4] Federal Courts Wages, hours, and working conditions Labor and Employment Proceedings The five factors outlined in regulations of MSAWPA for consideration as probative of economic dependency, and the six factors derived from various legal decisions, would be analyzed de novo to determine which factors applied in determining whether farm, which contracted with farm labor contractor to provide laborers to harvest its crops, was “joint employer” of those laborers. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 1 Cases that cite this headnote [5] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Nature and degree of control of workers that farm exercised over laborers provided by farm labor contractor to harvest crops did not render farm the “joint employer” of the laborers for purposes of the FLSA and MSAWPA; planting decisions made by farm, and decisions as to which parcels of land to harvest, could not be likened to “control” in FLSA/MSAWPA since ultimate control, as well as majority of picking decisions, rested in contractor, the laborers' direct employer, not in farm. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 14 Cases that cite this headnote [6] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Degree of supervision exercised by farm over work performed by laborers provided by farm labor contractor was not sufficient to render farm the “joint employer” of laborers for purposes of FLSA and MSAWPA; infrequent assertions of minimal oversight by farm did not rise to level of supervision necessary to satisfy supervision factor of MSAWPA regulations. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 13 Cases that cite this headnote [7] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Farm's alleged power to determine compensation of laborers provided by farm labor contractor was not such as to render farm the joint employer of laborers for purposes of FLSA and MSAWPA; even if contractor refused to pay laborers more money unless he received more money from farm, contractor had exclusive control over laborers' compensation and laborers were economically dependent solely on contractor. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 3 Cases that cite this headnote [8] Labor and Employment Joint employers Factor set forth by MSAWPA regulation concerning right of employer to hire and fire Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 93 of 520 PageID 729 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 workers did not support finding that farm was joint employer of laborers provided by labor contractor; farm never mandated that any given worker be hired or fired, never shifted worker from one pay classification to another, and never dictated hours that any employee could work. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 2 Cases that cite this headnote [9] Labor and Employment Joint employers Factor set forth in regulations under MSAWPA under which preparation of payroll and payment of wages is indicative of joint employment did not support finding that farm was joint employer of laborers provided by farm labor contractor; contractor was solely responsible for calculating and paying wages. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 6 Cases that cite this headnote [10] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Investment in equipment and facilities was not relevant in determining whether farm was joint employer of laborers provided by farm labor contractor for purpose of FLSA and MSAWPA; laborers were employees, not independent contractors, and had little or no investment in equipment. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 6 Cases that cite this headnote [11] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Fact that laborers provided by farm labor contractor to harvest crops on farm had no opportunity for profit and loss did not establish that laborers were economically dependent upon farm and thus employees of farm for purpose of FLSA and MSAWPA; while test would establish that laborers were not independent contractors, it was of no assistance in determining whether farm was their joint employer. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 2 Cases that cite this headnote [12] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Fact that farm labor contractor had worked with farm for 25 years had no bearing on question whether farm was joint employer of laborers for purposes of FLSA and MSAWPA. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 1 Cases that cite this headnote [13] Labor and Employment Joint or multiple employers Labor and Employment Joint employers The permanency and exclusivity of employment of laborers provided by farm labor contractor to harvest crops on farm was indicative that contractor was laborers' sole employer and was irrelevant in determining whether farm was joint employer of laborers Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 94 of 520 PageID 730 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 for purpose of FLSA and MSAWPA. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 3 Cases that cite this headnote [14] Labor and Employment Particular employees Labor and Employment Employers Fact that little or no skill was required to harvest vegetables did not indicate that laborers provided by farm labor contractor were economically dependent upon, and thus employees of, farm for purpose of FLSA and MSAWPA; factors showed that laborers were employees, but not of whom. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 3 Cases that cite this headnote [15] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Fact that laborers provided by farm labor contractor worked on land owned by farm was irrelevant in determining whether farm was joint employer of laborers for purpose of FLSA and MSAWPA. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. Cases that cite this headnote [16] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Fact that laborers furnished by farm labor contractor to harvest crops performed line- job integral to harvesting and production of salable vegetables did not establish that farm was joint employer of laborers for purpose of FLSA and MSAWPA. Fair Labor Standards Act of 1938, §§ 1–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 2 Cases that cite this headnote [17] Labor and Employment Joint or multiple employers Labor and Employment Joint employers In consideration of factors, regulatory and nonregulatory, used in determining whether farm was “joint employer” of laborers within meaning of FLSA and MSAWPA, court would limit its inquiry to probative factors. Fair Labor Standards Act of 1938, §§ 2–19, 29 U.S.C.A. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, §§ 2–522, 29 U.S.C.A. §§ 1801–1872. 8 Cases that cite this headnote Attorneys and Law Firms *436 Gregory S. Schell, FL Rural Legal Services, Inc., Lake Worth, FL, Michael Guare, FL Rural Legal Services, Inc., Lakeland, FL, for plaintiffs-appellants. Daniel D. McMillan, Jones, Day, Reavis & Pogue, Los Angeles, CA, Timothy B. Dyk, Jones, Day, Reavis & Pogue, Washington, DC, for Vergnaud Amiable, et al. David Richard Kresser, Charles Kelso, Fisher & Phillips, Atlanta, GA, for defendants-appellees. Mark S. Ross, McKenna & Cuneo, San Francisco, CA, for amicus curiae Cong. George Miller. Appeals from the United States District Court for the Middle District of Florida. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 95 of 520 PageID 731 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON, Senior Circuit Judge. Opinion TJOFLAT, Chief Judge: In this case, we must decide whether a farm, which contracted with a farm labor contractor to provide laborers to harvest its crops, was the “joint employer” of those laborers for purposes of the Fair Labor Standards Act, 29 U.S.C. §§ 201–19 (1988), and the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801–72 (1988 & Supp.1993). On cross-motions for summary judgment, the district court held that the farm was not the laborers' joint employer and entered judgment for the farm; the laborers appealed. We affirm. *437 I Appellants (plaintiffs in two consolidated cases in the district court) are 206 migrant and seasonal farm workers. 1 At various times between 1985 and 1989, each alleges to have been employed by John Miller, Jr., 2 to harvest crops grown by appellee Long & Scott Farms, Inc. (“Long & Scott”), the owner and operator of a 1,200–acre vegetable farm in Florida. Frank Scott, the owner of a one-half share in Long & Scott, managed the day-to-day operations of the farm. John Miller is a farm labor contractor with whom Long & Scott dealt for twenty-five years. As a farm labor contractor, Miller agrees to provide workers to harvest farmers' labor-intensive crops. Miller then recruits the required number of laborers (sometimes from out-of- state locations; at other times from migrant camps, small towns, or other farms in Florida); he also provides many of the laborers with housing at his labor camp and/or transportation to the work sites. During Long & Scott's relationship with Miller, Long & Scott used no other contractor to supply laborers for its corn, cabbage, and cucumber crops. Miller, on the other hand, provided laborers to other farms, but only when that work would not interfere with his obligations to Long & Scott. During the period in question (1985–89), Long & Scott provided Miller with his largest single source of revenue. Nonetheless, because of Miller's other contracts, Long & Scott accounted for less than half of Miller's total revenue. Long & Scott paid Miller a flat rate, determined at the beginning of the produce season, for each quantity of produce picked. Similarly, Miller compensated most of his employees on a piece-rate basis. Appellants filed these two suits against Miller and Long & Scott under the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“MSAWPA”). 3 After extended discovery, appellants and defendant Long & Scott filed cross-motions for summary judgment in both cases. The district court granted appellants' motions in part, holding that Miller was appellants' employer for purposes of FLSA and MSAWPA. 4 The district court, however, found that Long & Scott was not appellants' joint employer; thus, the district court denied appellants' motions for summary judgment to the extent they related to Long & Scott. Concurrently, the district court granted Long & Scott's cross-motions for summary judgment and subsequently entered final judgments in both cases in favor of Long & Scott. It is from these judgments that appellants appeal. 5 II In 1983, Congress enacted the Migrant and Seasonal Agricultural Worker Protection *438 Act “to remove the restraints on commerce caused by activities detrimental to migrant and seasonal agricultural workers ... and to assure necessary protections for migrant and seasonal agricultural workers....” 29 U.S.C. § 1801. Among its many provisions, MSAWPA required that agricultural employers register with the government, maintain certain employment records for migrant and seasonal agricultural workers, and comply with sundry housing, transportation, and compensation provisions. See 29 U.S.C. §§ 1811–44. If an employer fails to adhere to any of the provisions in MSAWPA (as well as to any of the regulations promulgated pursuant to it), MSAWPA creates a private right of action in federal court on behalf of all aggrieved persons; MSAWPA further empowers district courts to impose actual damages or statutory damages of $500 per plaintiff per violation. 29 U.S.C. §§ 1854(a) & (c). Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 96 of 520 PageID 732 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Under MSAWPA, 29 U.S.C. § 1802(5), “employ” is defined by reference to FLSA: “ ‘Employ’ includes to suffer or permit to work.” 29 U.S.C. § 203(g). See also 29 C.F.R. § 500.20(h)(1) (1992) (same definition). The MSAWPA concept of “employ” also “includes the joint employment principles applicable under the Fair Labor Standards Act.” 29 C.F.R. § 500.20(h)(4). The regulations promulgated under MSAWPA define “joint employment” as follows: The term joint employment means a condition in which a single individual stands in the relation of an employee to two or more persons at the same time. A determination of whether the employment is to be considered joint employment depends upon all the facts in the particular case. 29 C.F.R. § 500.20(h)(4)(i). The regulations also provide the Secretary of Labor (and thus, implicitly, the courts) with a means of determining whether joint employment is present: Questions will often arise under the Act as to whether individuals employed by a farm labor contractor are also jointly employed by another person engaged in agriculture (including any person defined in the Act as an agricultural employer or an agricultural association). Such joint employment relationships are common in agriculture and have often been addressed by the Federal courts. See Hodgson v. Okada, 472 F.2d 965 [ (10th Cir.1973) ], Hodgson v. Griffin and Brand, 471 F.2d 235 [ (5th Cir.1973) ], Mitchell v. Hertzke, 234 F.2d 183 [ (10th Cir.1956) ], United States v. Rosenwasser, 323 U.S. 360, [65 S.Ct. 295, 89 L.Ed. 301 (1945) ], Rutherford Food Corporation v. McComb, 331 U.S. 722, 67 S.Ct. 1473 [91 L.Ed. 1772 (1947) ], Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 [ (9th Cir.1979) ], Mednick v. Albert Enterprises, Inc., 508 F.2d 297 [ (5th Cir.1975) ], and Usery v. Pilgrim Equipment Company, Inc., 527 F.2d 1308 [ (5th Cir.1976) ]. In determining whether such a joint employment relation exists the courts have cited the broad definition of employ in the Fair Labor Standards Act which includes to suffer or permit to work. The factors considered significant by the courts in these cases and to be used as guidance by the Secretary, include, but are not limited to, the following: (A) The nature and degree of control of the workers; (B) The degree of supervision, direct or indirect, of the work; (C) The power to determine the pay rates or the methods of payment of the workers; (D) The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; (E) Preparation of payroll and the payment of wages. 29 C.F.R. § 500.20(h)(4)(ii). 6 Based on the findings of the district court, to which Miller acceded, it is undisputed that Miller was appellants' employer. As such, Miller was required to fulfill each of the statutory requirements imposed upon employers. MSAWPA simultaneously imposes obligations not only upon direct employers *439 (such as Miller), however, but also upon a broad class of potentially liable persons, including “agricultural employers.” 7 See, e.g., 29 U.S.C. §§ 1821(a) & (d) (information and recordkeeping requirements), 1831(c) (recordkeeping), 1822(a) (payment of wages), 1832(a) (payment of wages), and 1841(b) (1) (transportation requirements). Thus, if appellants demonstrate that, through the principle of “joint employment,” Long & Scott was their “agricultural employer,” Long & Scott would have been obligated along with Miller to fulfill each of the requirements of MSAWPA and FLSA. Therefore, the issue before us, as before the district court, is whether Long & Scott was appellants' joint employer. III A [1] To determine whether an employer/employee relationship exists for purposes of federal welfare legislation, we look not to the common law definitions of those terms (for instance, to tests measuring the amount of control an ostensible employer exercised over a putative employee), but rather to the “economic reality” of all the Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 97 of 520 PageID 733 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 circumstances concerning whether the putative employee is economically dependent upon the alleged employer. See, e.g., Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477, 91 L.Ed. 1772 (1947) (construing distinction between employee and independent contractor status under FLSA); Patel v. Wargo, 803 F.2d 632, 635 (11th Cir.1986) (analyzing joint employment under FLSA); Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237–38 (5th Cir.1973) (same). 8 Appellants posit a list of eleven factors to be considered as probative of economic dependency. Five are specifically outlined in the MSAWPA regulations (“the five regulatory factors”): (1) the nature and degree of control of the workers; (2) the degree of supervision, direct or indirect, of the work; (3) the power to determine the pay rates or the methods of payment of the workers; (4) the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; and (5) preparation of payroll and the payment of wages. 29 C.F.R. § 500.20(h)(4)(ii) (1992). The remaining six factors are filtered from various legal decisions: (6) investment in equipment and facilities; (7) the opportunity for profit and loss; (8) permanency and exclusivity of employment; (9) the degree of skill required to perform the job; (10) ownership of property or facilities where work occurred; and (11) performance of a specialty job within the production line integral to the business. See, e.g., Griffin & Brand, 471 F.2d at 237–38; Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir.1979); Haywood v. Barnes, 109 F.R.D. 568, 587 (E.D.N.C.1986). Appellants emphasize the third factor in arguing their economic dependency on Long & Scott: because Long & Scott effectively controlled the amount of money appellants could earn, appellants assert, they were economically dependent upon Long & Scott. The district court rejected this argument, concluding that appellants' theory of economic dependency was overbroad: even though Long & Scott necessarily determined how much work was available through its choices of how much land to own and which crops to plant, the court determined, that fact alone was insufficient to establish that Long & Scott was appellants' employer. Long & Scott, however, contends that only the five regulatory factors are probative of the joint employment issue; this framework attempts to shift our inquiry away from economic dependency and toward questions of control. To this end, Long & Scott asserts that the latter six factors relate solely to employment relationships not here in question (for example, whether Miller is an independent *440 contractor of Long & Scott). The district court largely adopted Long & Scott's arguments, limiting its examination to the five regulatory factors. We believe that neither position is accurate. B [2] To begin our analysis, we look first to the regulations adopted by the Secretary of Labor. In the definition of joint employment, § 500.20(h)(4)(ii) specifically states that the factors “to be used as guidance by the Secretary[ ] include, but are not limited to,” the five regulatory factors. Id. (emphasis added). Further, the fact that the regulation makes reference to cases that considered factors in addition to the five regulatory factors reinforces our view that additional factors may be considered. Thus, we cannot accept Long & Scott's assertion that we should resolve the joint employment issue solely on the basis of the five regulatory factors. [3] [4] Nonetheless, not all of appellants' eleven factors should be given equal weight and, indeed, several of them are of no value insofar as they apply to factual circumstances not here present. Because the determination of joint employment is a question of law, Patel v. Wargo, 803 F.2d 632, 634 (11th Cir.1986), we analyze de novo each of the eleven factors to determine which apply to the present case as well as to discern the direction in which each of the relevant factors points. C It is uncontroverted that the five regulatory factors are relevant to this case. What is disputed is whether the first three factors support appellants' contention that Long & Scott was their joint employer. 9 We address each factor in turn. 1. The Nature and Degree of Control of the Workers. [5] Appellants assert that two considerations indicate that Long & Scott's control of the workers confers joint employer status upon Long & Scott. First, appellants Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 98 of 520 PageID 734 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 contend that Long & Scott made all planting decisions, including which crops to plant, how much to plant, and how to grow the crop (e.g., decisions regarding tilling, fertilization, and irrigation). Second, appellants assert that Frank Scott made all decisions as to which parcels of land to harvest, when in the season to begin the harvests, and how frequently the fields should be harvested (since one parcel of land may be culled several times each season as plants continue to produce salable goods). Because Long & Scott made these decisions, it necessarily determined the amount of produce that could be harvested and, therefore, the exact amount of work available. Thus, appellants conclude, they were economically dependent upon Long & Scott's agricultural decisionmaking. Appellants' argument, however, misses the point. Although, at first glance, the first regulatory factor may appear to encompass abstract notions of control such as these, its focus is more properly limited to specific indicia of control (for example, direct employment decisions such as whom and how many employees to hire, whom to assign to specific tasks, and how to design the employees' management structure). In this case, Long & Scott did not directly control the number of workers hired to do the work; it did not demand that Miller hire (or fire) specific individuals; and, it did not select specific workers to do specific jobs. Compare Mitchell v. Hertzke, 234 F.2d 183, 190 (10th Cir.1956) (finding no joint employment where farmer did not make similar employment decisions) and Haywood v. Barnes, 109 F.R.D. 568, 591 (E.D.N.C.1986) (finding joint control where farmer selected workers for specific tasks and determined the number of workers hired). Rather, Long & Scott hired Miller to pick and pack a specified quantity of vegetables. It was Miller's responsibility to determine the necessary number of workers, to recruit those workers, and to compensate them for their labor. In short, Miller (independent of Long & Scott) exercised absolute, *441 unfettered, and sole control over appellants and their employment. Appellants allege that, even if Miller controlled hiring and firing, Long & Scott effectively controlled appellants' labor because Long & Scott directed Miller to pick certain fields on specified days. 10 We believe that Long & Scott's agricultural decisions—decisions which only indirectly affected the number of workers necessary to harvest the land—can not be likened to “control” in the FLSA/ MSAWPA sense. Long & Scott's business is growing and selling vegetables; Miller's business is providing a sufficient number of laborers to harvest those vegetables. It is not surprising that Long & Scott would (and, despite FLSA/MSAWPA, should be able to) give general instruction to Miller as to which crops to harvest at a particular time. See Howard v. Malcolm, 852 F.2d 101, 104 (4th Cir.1988) (finding no joint employment even though farmer advised contractor which portion of the crop to harvest). Contra Haywood, 109 F.R.D. at 589 (concluding assignment of plots to harvest indicative of control and supportive of ultimate finding of joint employment). Control arises, we believe, when the farmer goes beyond general instructions, such as how many acres to pick in a given day, and begins to assign specific tasks, to assign specific workers, or to take an overly active role in the oversight of the work. Such indicia of control are not present here. See Leach v. Johnston, 812 F.Supp. 1198, 1203, 1207 (M.D.Fla.1992) (finding farmer to be joint employer when, inter alia, he gave daily assignments to workers through crew leaders). On the facts of this case, therefore, we find that the first regulatory factor does not support a finding of joint employment. Although Long & Scott, through its planting decisions, indirectly affected appellants' employment, that control was neither direct nor substantial. In sum, ultimate control, as well as the majority of picking decisions, rested in Miller, appellants' direct employer, not in Long & Scott. 2. The Degree of Supervision, Direct or Indirect, of the Work. [6] Appellants link the second regulatory factor, supervision, with the first factor, control, and argue that Long & Scott not only oversaw each day's production (as well as the post-picking task of grading the vegetables), but also issued commands to the workers through Miller. 11 (It is well-settled that supervision is present whether orders are communicated directly to the laborer or indirectly through the contractor. Griffin & Brand, 471 F.2d at 238.) The record, even when taken in the light most favorable to appellants, establishes that any supervision by Long & Scott was de minimis. For instance, although eleven appellants aver that a Long & Scott employee came out to the field on a regular basis, the affidavits indicate that such employees rarely provided any direction to appellants' work. In addition, appellants place untoward reliance on a few affidavits stating that a Long & Scott employee Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 99 of 520 PageID 735 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 occasionally gave Miller commands that were, in turn, relayed to an appellant; these examples of infrequent oversight are thus notable because they indicate that Long & Scott, except on rare occasions, left supervision and oversight of appellants entirely to Miller and his crew. In short, we find that appellants' infrequent assertions of minimal oversight by Long & Scott do not rise to the level of supervision necessary to satisfy this factor. For instance, in Griffin & Brand, the putative employer's field supervisors were constantly in the field giving commands to contractors; this contributed to the court's finding of joint employment. 471 F.2d at 238. Similarly, the facts in Haywood indicated *442 direct and continuous supervision on the part of the joint employer. 109 F.R.D. at 590. Although the record indicates the presence of some minimal supervision by Long & Scott, appellants have not demonstrated a degree of supervision sufficient to confer joint employment status. 3. The Power to Determine the Pay Rates or Methods of Payment. [7] Appellants rely most heavily on the third regulatory factor, contending that Long & Scott indirectly controlled their rate of pay. Appellants' argument follows the transitive property of geometry: first, Long & Scott controlled the amount Miller received; second, Miller controlled the amount appellants received; therefore, Long & Scott controlled the amount appellants received. This relationship is validated, appellants assert, by Miller's refusal to pay appellants more money unless he received more money from Long & Scott. To summarize, because of Miller's intransigence regarding pay increases, appellants conclude that they were economically dependent upon—and thus employees of— Long & Scott. Unfortunately for appellants, the laws that bind the Euclidian world do not apply with equal force in federal employment law; appellants' leap of logic is unfounded. The record clearly indicates that Miller negotiated the terms of his compensation at arms' length, employing every method possible to win annual increases from Long & Scott. Then, Miller took the revenue he earned from Long & Scott (as well as the revenue he garnered from other employers, who contributed more than half of his income) and independently determined how best to spend it. Miller alone determined what portion of his revenue to expend on labor, housing, and equipment. Most importantly, Miller, not Long & Scott, determined what wages to pay appellants; which workers to pay on a piece-rate basis and which to pay on an hourly basis; and when (and if) to increase the workers' wages (either by charging farmers more, decreasing the number of laborers, or reducing his expenses or his profit). Long & Scott had no direct or indirect power to set or increase appellants' wages; in fact, even if Long & Scott were to pay Miller more money on his contract (with the intent that Miller use the extra money to increase appellants' wages), Miller would have been free to retain the increase rather than raise appellants' wages; Long & Scott could not influence this decision. The evidence is clear: Miller possessed exclusive control over appellants' compensation, and appellants were economically dependent solely on Miller. Moreover, a review of other cases establishes that, despite appellants' arguments, the third regulatory factor does not lead to a finding of joint employment in the present case. For instance, in Haywood, in which the court found joint employment, the farmer specifically determined the amount of pay and the method of payment. 109 F.R.D. at 591. Similarly, in Griffin & Brand, the old Fifth Circuit Court of Appeals, in finding joint employment, noted that the farmer set the workers' pay, determined whether to pay on an hourly or piece-rate basis, and deducted Social Security contributions. 471 F.2d at 238. Contra Leach, 812 F.Supp. at 1203 (finding that flat fee paid to labor contractor indicated control of workers' pay). 4. The Right, Directly or Indirectly, to Hire, Fire, or Modify the Employment Conditions of the Workers. [8] Appellants concede that the fourth regulatory factor favors a finding that no joint employment existed. The evidence in the record demonstrates that Long & Scott never mandated that a particular individual be hired or fired; that Long & Scott never shifted a worker from one pay classification (hourly or piece-rate) to another; that Long & Scott never shifted a worker from one task to another; and, that Long & Scott never dictated the hours that any given employee could work. We agree with both parties and find that this factor, like control, supervision, and pay, does not support a finding of joint employment. 5. Preparation of Payroll and Payment of Wages. [9] Appellants also concede that the fifth regulatory factor does not support a finding of joint employment. Miller was responsible *443 for calculating each of his Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 100 of 520 PageID 736 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 employees' wages as well as for paying those wages; Long & Scott did not participate at all in this operation. The district court largely limited its analysis to these five regulatory factors. As we have demonstrated, each factor leads to the conclusion that appellants were economically dependent upon Miller, not upon Long & Scott. If these factors are taken in isolation, the result is inescapable: Miller alone was appellants' employer; no joint employment existed. D Appellants contend, however, that six other factors must be taken into consideration; each factor, appellants assert, mandates a finding that Long & Scott was indeed a joint employer. Again, because our review is de novo, we will examine independently each factor in resolving two issues: whether the factor is relevant to this case; and, if so, whether it supports a finding of joint employment. We find that only the last two are relevant to our inquiry. 1. Investment in Equipment and Facilities. [10] Appellants derive the first non-regulatory factor from Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir.1979). In that case, farm workers brought suit against Driscoll Strawberry Associates (“DSA”) for failure to comply with FLSA; there was no farm labor contractor involved. In defending against the FLSA suit, DSA claimed that the workers were independent contractors, not employees, and that FLSA therefore did not apply. Thus, this factor (as with the next three non-regulatory factors) was not used to determine joint employment status (which was not an issue), but rather to determine whether workers were employees or independent contractors. 12 We believe this factor not relevant to our decision. It is apparent that appellants indeed were employees, not independent contractors; they have little or no investment in any equipment. If we were to apply this factor, however, it would not indicate who appellants' employer was, as both Miller and Long & Scott made significant investments in equipment and facilities. Indeed, while Long & Scott invested in the mule train (a machine used in the picking of corn), crates, and facilities, Miller invested in trucks, a labor camp (in which many appellants lived), and tools. Thus, while the factor does not exonerate Long & Scott, neither does it demonstrate that appellants were economically dependent upon the farm. We therefore exclude it from our analysis. 2. The Opportunity for Profit and Loss. [11] The second non-regulatory factor asks whether, through their own initiative or managerial skill, appellants had the opportunity of realizing profit. As Long & Scott concedes that appellants had no opportunity for profit or loss, appellants contend that appellants were economically dependent upon—and thus employees of—Long & Scott. As with the first non-regulatory factor (investment), this test does not assist our analysis; it, too, is used to determine whether an individual is an independent contractor or an employee. See, e.g., Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477, 91 L.Ed. 1772 (1947); Real, 603 F.2d at 754; Usery v. Pilgrim Equip. Co., Inc., 527 F.2d 1308, 1311 (5th Cir.1976). Thus, although this factor would indicate that appellants were not independent contractors (a not unsurprising conclusion), it would not assist us in determining whether Long & Scott was appellants' joint employer. We therefore exclude it from our consideration as well. 3. Permanency and Exclusivity of Employment. [12] Appellants argue that the third non-regulatory factor indicates joint employment status for two reasons: first, because Miller worked with Long & Scott for twenty- five years; and second, because, during the harvest season, appellants' employment was permanent and exclusive. See *444 Haywood, 109 F.R.D. at 588–89. As to the first argument, the fact that Miller, an independent contractor, worked for Long & Scott for a period of years has no bearing on the question of whether his employees were employed jointly by Long & Scott. [13] As to the second argument, Long & Scott responds by arguing that many appellants worked for other farms during the years in question and that more than one- half of Miller's income derived from work performed for other farmers. We find, however, that both parties' arguments miss the mark. During the harvest periods at Long & Scott, appellants' work, which largely was exclusive, had the hallmarks of employment. The factor seems to indicate, however, that Miller was appellants' Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 101 of 520 PageID 737 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 sole employer, as appellants worked exclusively and permanently for him not only during harvest seasons at Long & Scott, but also during harvest seasons at other farms. Thus, this factor is irrelevant to our discussion. While it reiterates what we have already concluded—that appellants were employees, not independent contractors —it nonetheless fails to demonstrate that Long & Scott was appellants' joint employer. (In fact, contrary to appellants' assertion, it appears to indicate that appellants were employees solely of Miller). 4. The Degree of Skill Required to Perform the Job. [14] As to the fourth non-regulatory factor, appellants assert that, since little or no skill is required to harvest vegetables, appellants were economically dependent upon —and thus employees of—Long & Scott. See Haywood, 109 F.R.D. at 588; Real, 603 F.2d at 754. As with the first three non-regulatory factors, however, this factor is not relevant as it shows that appellants were employees, but not of whom. 5. Ownership of Facilities where Work Occurred. [15] The fifth non-regulatory factor is the first additional factor appellants cite whose relevance is not limited to the employee/independent contractor distinction. See Griffin & Brand, 471 F.2d at 237. See also McComb, 331 U.S. at 730, 67 S.Ct. at 1477. It also is the first factor that favors appellants. There is no dispute that appellants worked on land owned by Long & Scott. 6. Performance of a Specialty Job Integral to the Business. [16] Appellants' sixth and final non-regulatory factor also is derived from Griffin & Brand, 471 F.2d at 238. See also, McComb, 331 U.S. at 730, 67 S.Ct. at 1477. Since appellants performed a line-job integral to the harvesting and production of salable vegetables, we conclude that this factor also supports appellants. Thus, we find that four of appellants' six non-regulatory factors are irrelevant to this case. And, therein lies a caution: Courts must closely scrutinize such factors to determine their relevancy to each particular situation. Although many factors may be useful in other FLSA/ MSAWPA situations, they are not necessarily useful in all such situations and are of no value to joint employment determinations. E In conclusion, although the only two relevant non- regulatory factors favor appellants, we find that the five regulatory factors (all of which strongly indicate that this was not a joint employment situation) demonstrate that appellants were not economically dependent upon—and thus not employees of—Long & Scott. IV [17] Appellants insist that a determination of joint employment requires the court to sift through eleven separate factors, five found in the regulations under MSAWPA and six derived from other sources. 13 Facially, appellants argument is attractive: the regulation specifically states that our deliberations “are not limited to” the five regulatory factors. 29 C.F.R. § 500.20(h)(4)(ii). We believe, however, that our inquiry permissibly may be limited to probative factors. It is telling that no other court has adopted each of appellants' proposed factors in one case. The reason: not all factors are relevant in every case. *445 In this case, the district court determined that only the five regulatory factors were relevant to the question at issue: whether Long & Scott was appellants' joint employer. As our analysis above indicates, that determination largely was correct. Four of appellants' six non-regulatory factors indicate that appellants were economically dependent upon someone; they do not, however, tell us upon whom they were dependent and thus are not relevant to our analysis. Only the last two non-regulatory factors, factors which bear little relative weight, favor appellants. Thus, when we examine these non-regulatory factors in light of the five regulatory factors, each of which demonstrates that appellants were economically dependent solely upon Miller, we conclude that Long & Scott was not appellants' joint employer. The judgment of the district court therefore is AFFIRMED. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 102 of 520 PageID 738 Aimable v. Long and Scott Farms, 20 F.3d 434 (1994) 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 All Citations 20 F.3d 434, 128 Lab.Cas. P 33,086, 2 Wage & Hour Cas.2d (BNA) 49 Footnotes 1 Although Congress separately defined “migrant” and “seasonal” agricultural workers, see 29 U.S.C. §§ 1802(8) & (10), the statutory distinction is without substance for purposes of this appeal. 2 Miller, along with Long & Scott Farms, Inc., was a defendant in both district court cases; Miller, however, is not a party to this appeal. See note 4, below. 3 Appellants' complaint also alleged violations by Miller under the Federal Insurance Contributions Act (“FICA”), 26 U.S.C. §§ 3101 et seq. (1988), and the Federal Unemployment Tax Act (“FUTA”), 26 U.S.C. §§ 3301 et seq. (1988). The district court has yet to rule on these allegations, so they currently are not before us. 4 In finding that Miller was appellants' employer, the district court acknowledged that Miller disputed whether each of the 206 appellants had, in fact, worked for him. Because Miller's protestations created genuine issues of material fact as to certain laborers, the district court properly denied appellants' motion for summary judgment as to those contested individuals. Nonetheless, there was no issue of material fact as to the district court's larger holding: in general, Miller was appellants' employer. Miller has not contested this general holding either in the district court or on appeal. Pending the resolution of Long & Scott's appeal, the district court stayed all proceedings in both cases concerning appellants' claims against Miller. 5 Our jurisdiction over this appeal from an adverse final decision rests on 28 U.S.C. § 1291 (1988). (The district court entered judgment in both cases pursuant to Fed.R.Civ.P. 54(b), thus permitting this appeal even though the resolution of appellants' claims against Miller is pending.) Our review of the district court's grant of summary judgment is de novo, and we apply the same standards that bound the district court. RJR Nabisco, Inc. v. United States, 955 F.2d 1457, 1459 (11th Cir.1992). 6 The definition of “joint employment” under FLSA is found in the regulations, 29 C.F.R. § 791.2 (1992). 7 “The term ‘agricultural employer’ means any person who owns or operates a farm [or] ... processing establishment, ... and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.” 29 U.S.C. § 1802(2). See also 29 C.F.R. § 500.20(d) (1992) (same definition). 8 Per Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), decisions of the Fifth Circuit adopted prior to close of business on September 30, 1981, are binding precedent upon us. 9 As we discuss below, appellants acknowledge that the final two regulatory factors do not support a finding of joint employment. 10 Long & Scott submitted affidavits from Frank Scott and John Miller which asserted that Miller (with limited assistance from Long & Scott) determined which fields to pick. For purposes of this opinion, we will assume that Long & Scott not only possessed the power to determine which fields to pick but also periodically exercised that power. 11 Although there is evidence that Long & Scott employees occasionally exercised some minimal supervision over a handful of appellants, all appellants acknowledged that Miller and his hired employees served as their direct supervisors and were directly responsible for overseeing their labor. 12 Significantly, in cases in which the Ninth Circuit Court of Appeals has had to address joint employment issues, it has not adopted the Real factors, but instead has limited itself to the five regulatory factors addressed above. See, e.g., Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1324 (9th Cir.1991); Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.1983). 13 If we were to agree with appellants, this case would displace Haywood (which had nine factors) as the case with the greatest number of factors. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 103 of 520 PageID 739 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 104 of 520 PageID 740 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 105 of 520 PageID 741 ... ... ... WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 106 of 520 PageID 742 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 107 of 520 PageID 743 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 108 of 520 PageID 744 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 109 of 520 PageID 745 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 110 of 520 PageID 746 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 111 of 520 PageID 747 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 112 of 520 PageID 748 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 113 of 520 PageID 749 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 114 of 520 PageID 750 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 115 of 520 PageID 751 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 116 of 520 PageID 752 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 117 of 520 PageID 753 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 118 of 520 PageID 754 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 119 of 520 PageID 755 Footnotes 1 The facts in this section are undisputed unless otherwise indicated. 2 Siebel assigns work orders based on a “technician profile,” which consists of the “three S's”: (1) the technician's service area; (2) schedule; and (3) skill set. Dkt. No. [172–1] ¶ 24. 3 The parties dispute whether the exclusivity provision was actually enforced. Dkt. No. [174–2] ¶ 6. 4 Specifically, Plaintiff Amponsah completed work for Future Satellite Technologies. Dkt. No. [172–1] ¶ 25. Plaintiff Exum completed work for Modern Day Satellite. Id. ¶ 29. Plaintiff Hodges completed work for Global Connected Satellite. Id. ¶ 33. Plaintiff Tchaas completed work for Modern Day and DCI Broadband, Inc. Id. ¶ 41. Plaintiff Velez completed work for H.D. Experts, Inc., Synergies3 Tec Services LLC, and White Communications, Inc. Id. ¶ 43. 5 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209. 6 Defendants also cite specific facts for each individual Plaintiff on each individual factor. The Court finds that it is not necessary to wade into these factual assertions because other genuine issues of fact that are applicable to all Plaintiffs preclude summary judgment. And in any event, most of Defendants' Plaintiff-specific factual assertions are hotly contested and the subject of further genuine issues of material fact. For example, on the control factor, Defendants claim that Plaintiff Amponsah testified that he did not feel Defendant DirecTV was his employer and that he controlled his own flexible schedule. Dkt. No. [116–1] at 15–16. Disputing these assertions, Plaintiffs point out that Plaintiff Amponsah only testified that he “had no idea” if Defendant DirecTV was his employer, but that all his work was for Defendant DirecTV, and that, although he understood he was supposed to be an independent contractor with a flexible schedule, in practice “[i]t's a whole different situation.” Dkt. No. [172–1] ¶¶ 277–80. 7 However, Defendants dispute the accuracy of all of the Siebel data. 8 Plaintiffs briefly assert that there is mixed evidence on this factor because their payroll checks were prepared by accessing Defendants' records. Dkt. Nos. [172] at 42; [174–1] ¶ 97. However, this fact, which Defendants concede, does not change that it was the subcontractors who prepared the payroll and paid Plaintiffs. 9 The Court considers this defense only as to Defendant DirecTV as Defendants have offered no argument or evidence for how it might apply to Defendant MasTec. 10 The parties note that the Seventh Circuit recently reached a different definition of “retail or service establishment.” See Alvarado v. Corp. Cleaning Servs., Inc., 782 F.3d 365, 370–71 (7th Cir. 2015). However, the parties agree that the district courts in this circuit apply the definition from the DOL's regulations, and that it should control here. Most other circuits also apply this definition. See Gieg v. DDR, Inc., 407 F.3d 1038, 1047–49 (9th Cir. 2005); Reich v. Delcorp, Inc., 3 F.3d 1181, 1183 (8th Cir. 1993). 11 In a footnote at the end of their brief in support of summary judgment, Defendants assert that they are “entitled to judgment as a matter of law that the date from which the applicable statute is measured for Plaintiff Pegues is December 23, 2013.” Dkt. No. [116–1] at 70 n.175. However, Defendants have not provided any legal authority to support their argument nor made clear what the impact of such a ruling would be. The Court finds that this request has not been properly presented and declines to rule on the issue. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 120 of 520 PageID 756 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Huckabee v. Time Warner Entertainment Co. L.P., Tex., May 4, 2000 106 S.Ct. 2505 Supreme Court of the United States Jack ANDERSON, et al., Petitioners v. LIBERTY LOBBY, INC. and Willis A. Carto. No. 84–1602. | Argued Dec. 3, 1985. | Decided June 25, 1986. Synopsis Libel action was brought against magazine, its publisher, and its chief executive officer. The United States District Court for the District of Columbia, 562 F.Supp. 201, granted summary judgment in favor of defendants and plaintiffs appealed. The Court of Appeals for the District of Columbia Circuit, 746 F.2d. 1563,affirmed in part and reversed in part. The Supreme Court, Justice White, held that: (1) ruling on motion for summary judgment or directed verdict necessarily implicates that substantive evidentiary standard of proof that would apply at a trial on the merits, and (2) when determining if genuine factual issue as to actual malice exists in a libel suit brought by a public figure, trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under the NewYork Times doctrine. Vacated and remanded. Justice Brennan filed a dissenting opinion. Justice Rehnquist filed a dissenting opinion in which Chief Justice Burger joined. West Headnotes (17) [1] Federal Civil Procedure Absence of genuine issue of fact in general Mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be no genuine issue of material fact. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 47883 Cases that cite this headnote [2] Federal Civil Procedure Materiality and genuineness of fact issue Substantive law will identify which facts are material for purposes of summary judgment, as only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment; factual disputes that are irrelevant or unnecessary will not be counted. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 48235 Cases that cite this headnote [3] Federal Civil Procedure Materiality and genuineness of fact issue Materiality determination on motion for summary judgment rests on the substantive law and it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 6923 Cases that cite this headnote [4] Federal Civil Procedure Materiality and genuineness of fact issue Summary judgment will not lie if the dispute about a fact is “genuine,” i.e., if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 139115 Cases that cite this headnote [5] Federal Civil Procedure Hearing and Determination At summary judgment stage, judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 121 of 520 PageID 757 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 for trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 15983 Cases that cite this headnote [6] Federal Civil Procedure Absence of genuine issue of fact in general There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for jury to return a verdict for that party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 134951 Cases that cite this headnote [7] Federal Civil Procedure Findings and conclusions There is no requirement that trial judge make findings of fact when granting summary judgment but, in many cases, findings are extremely helpful to a reviewing court. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 133 Cases that cite this headnote [8] Federal Civil Procedure Right to judgment as matter of law Standard for granting summary judgment mirrors the standard for a directed verdict which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Fed.Rules Civ.Proc.Rules 50(a), 56(c), 28 U.S.C.A. 1753 Cases that cite this headnote [9] Federal Civil Procedure Burden of proof Inquiry involved in a ruling on a motion for summary judgment or for directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. Fed.Rules Civ.Proc.Rules 50(a), 56(c), 28 U.S.C.A. 1530 Cases that cite this headnote [10] Federal Civil Procedure Absence of genuine issue of fact in general If defendant in a run-of-the-mill civil case moves for summary judgment or for directed verdict based on the lack of proof of a material fact, the judge must ask himself, not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair- minded jury could return a verdict for the plaintiff on the evidence presented. Fed.Rules Civ.Proc.Rules 50(a), 56(c), 28 U.S.C.A. 22321 Cases that cite this headnote [11] Federal Civil Procedure Weight and sufficiency When ruling on a defendant's motion for summary judgment or a directed verdict in favor of plaintiff, mere existence of a scintilla of evidence in support of the plaintiff's position will not be sufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Fed.Rules Civ.Proc.Rules 50(a), 56(c), 28 U.S.C.A. 24483 Cases that cite this headnote [12] Federal Civil Procedure Tort cases in general When determining if a genuine factual issue exists as to actual malice in a libel suit brought by public figure, trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under the New York Times doctrine. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 3660 Cases that cite this headnote [13] Federal Civil Procedure Tort cases in general There is no genuine issue of material fact if the evidence presented in opposing affidavits in libel action involving a public figure is Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 122 of 520 PageID 758 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 6449 Cases that cite this headnote [14] Federal Civil Procedure Construction of evidence Federal Civil Procedure Questions for Jury Federal Civil Procedure Presumptions Federal Civil Procedure Ascertaining existence of fact issue Credibility determinations, weighing of evidence, and drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether his ruling is on motion for summary judgment or for directed verdict; evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. Fed.Rules Civ.Proc.Rules 50(a), 56(c), 28 U.S.C.A. 38193 Cases that cite this headnote [15] Federal Civil Procedure Summary Judgment Trial court should not act other than with caution in granting summary judgment and may deny summary judgment where there is reason to believe that the better course would be to proceed to a full trial. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 928 Cases that cite this headnote [16] Federal Civil Procedure Weight and Sufficiency of Evidence Federal Civil Procedure Absence of genuine issue of fact in general Determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case and that is true at both the directed verdict and summary judgment stages. Fed.Rules Civ.Proc.Rules 50(a), 56(c), 28 U.S.C.A. 2395 Cases that cite this headnote [17] Federal Civil Procedure Burden of proof Plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment, even where the evidence is likely to be within the possession of the defendant, as long as plaintiff has had a full opportunity to conduct discovery. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 7950 Cases that cite this headnote **2506 *242 Syllabus * * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, it was held that, in a libel suit brought by a public official (extended by later cases to public figures), the First Amendment requires **2507 the plaintiff to show that in publishing the alleged defamatory statement the defendant acted with actual malice. It was further held that such actual malice must be shown with “convincing clarity.” Respondents, a nonprofit corporation described as a “citizens' lobby” and its founder, filed a libel action in Federal District Court against petitioners, alleging that certain statements in a magazine published by petitioners were false and derogatory. Following discovery, petitioners moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, asserting that because respondents were public figures they were required to prove their case under the New York Times standards and that summary judgment was proper because actual malice was absent as a matter of law in view of an affidavit by the author of the articles in question that they had been thoroughly researched and that the facts Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 123 of 520 PageID 759 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 were obtained from numerous sources. Opposing the motion, respondents claimed that an issue of actual malice was presented because the author had relied on patently unreliable sources in preparing the articles. After holding that New York Times applied because respondents were limited-purpose public figures, the District Court entered summary judgment for petitioners on the ground that the author's investigation and research and his reliance on numerous sources precluded a finding of actual malice. Reversing as to certain of the allegedly defamatory statements, the Court of Appeals held that the requirement that actual malice be proved by clear and convincing evidence need not be considered at the summary judgment stage, and that with respect to those statements summary judgment had been improperly granted because a jury could reasonably have concluded that the allegations were defamatory, false, and made with actual malice. Held: The Court of Appeals did not apply the correct standard in reviewing the District Court's grant of summary judgment. Pp. 2509–2515. (a) Summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. At the summary judgment stage, the trial judge's function is not himself to weigh the evidence and *243 determine the truth of the matter but to determine whether there is a genuine issue for trial. There is no such issue unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. In essence, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Pp. 2509–2512. (b) A trial court ruling on a motion for summary judgment in a case such as this must be guided by the New York Times “clear and convincing” evidentiary standard in determining whether a genuine issue of actual malice exists, that is, whether the evidence is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Pp. 2512–2514. (c) A plaintiff may not defeat a defendant's properly supported motion for summary judgment in a libel case such as this one without offering any concrete evidence from which a reasonable jury could return a verdict in his favor and by merely asserting that the jury might disbelieve the defendant's denial of actual malice. The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. Pp. 2514–2515. 241 U.S.App.D.C. 246, 746 F.2d 1563, vacated and remanded. WHITE, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. –––. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. –––. Attorneys and Law Firms David J. Branson argued the cause for petitioners. With him on the briefs was David O. Bickart. Mark Lane argued the cause for respondents. With him on the brief were Linda Huber and Fleming Lee.* * Briefs of amici curiae urging reversal were filed for the American Newspaper Publishers Association et al. by Robert D. Sack, Robert S. Warren, W. Terry Maguire, Richard M. Schmidt, Jr., R. Bruce Rich, Lawrence Gunnels, Harvey L. Lipton, Peter C. Gould, and Jane E. Kirtley; for the Reader's Digest Association, Inc., by Walter R. Allan and Karen J. Wagner. Briefs of amici curiae urging affirmance were filed for the American Legal Foundation by Daniel J. Popeo; and for the Synanon Church et al. by Jonathan W. Lubell, Philip C. Bourdette, David R. Benjamin, and Andrew J. Weill. Opinion *244 **2508 Justice WHITE delivered the opinion of the Court. In New York Times Co. v. Sullivan, 376 U.S. 254, 279– 280, 84 S.Ct. 710, 725–726, 11 L.Ed.2d 686 (1964), we held that, in a libel suit brought by a public official, the First Amendment requires the plaintiff to show that in publishing the defamatory statement the defendant acted with actual malice—“with knowledge that it was false or with reckless disregard of whether it was false or not.” We WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 124 of 520 PageID 760 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 held further that such actual malice must be shown with “convincing clarity.” Id., at 285–286, 84 S.Ct., at 728–729. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). These New York Times requirements we have since extended to libel suits brought by public figures as well. See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). This case presents the question whether the clear-and- convincing-evidence requirement must be considered by a court ruling on a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure in a case to which New York Times applies. The United States Court of Appeals for the District of Columbia Circuit held that that requirement need not be considered at the summary judgment stage. 241 U.S.App.D.C. 246, 746 F.2d 1563 (1984). We granted certiorari, 471 U.S. 1134, 105 S.Ct. 2672, 86 L.Ed.2d 691 (1985), because that holding was in conflict with decisions of several other Courts of Appeals, which had held that the New York Times requirement of clear and convincing evidence must be considered on a motion for summary judgment. 1 We now reverse. 1 See, e.g., Rebozo v. Washington Post Co., 637 F.2d 375, 381 (CA5), cert. denied, 454 U.S. 964, 102 S.Ct. 504, 70 L.Ed.2d 379 (1981); Yiamouyiannis v. Consumers Union of United States, Inc., 619 F.2d 932, 940 (CA2), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46 (1980); Carson v. Allied News Co., 529 F.2d 206, 210 (CA7 1976). I Respondent Liberty Lobby, Inc., is a not-for- profit corporation and self-described “citizens' lobby.” Respondent Willis Carto is its founder and treasurer. In October 1981, *245 The Investigator magazine published two articles: “The Private World of Willis Carto” and “Yockey: Profile of an American Hitler.” These articles were introduced by a third, shorter article entitled “America's Neo-Nazi Underground: Did Mein Kampf Spawn Yockey's Imperium, a Book Revived by Carto's Liberty Lobby?” These articles portrayed respondents as neo-Nazi, anti-Semitic, racist, and Fascist. Respondents filed this diversity libel action in the United States District Court for the District of Columbia, alleging that some 28 statements and 2 illustrations in the 3 articles were false and derogatory. Named as defendants in the action were petitioner Jack Anderson, the publisher of The Investigator, petitioner Bill Adkins, president and chief executive officer of the Investigator Publishing Co., and petitioner Investigator Publishing Co. itself. Following discovery, petitioners moved for summary judgment pursuant to Rule 56. In their motion, petitioners asserted that because respondents are public figures they were required to prove their case under the standards set forth in New York Times. Petitioners also asserted that summary judgment was proper because actual malice was absent as a matter of law. In support of this latter assertion, petitioners submitted the affidavit of Charles Bermant, an employee of petitioners and the author of the two longer articles. 2 In this affidavit, Bermant stated that he had spent a substantial amount of time researching **2509 and writing the articles and that his facts were obtained from a wide variety of sources. He also stated that he had at all times believed and still believed that the facts contained in the articles were truthful and accurate. Attached to this affidavit was an appendix in which Bermant detailed the sources for each of the statements alleged by respondents to be libelous. 2 The short, introductory article was written by petitioner Anderson and relied exclusively on the information obtained by Bermant. *246 Respondents opposed the motion for summary judgment, asserting that there were numerous inaccuracies in the articles and claiming that an issue of actual malice was presented by virtue of the fact that in preparing the articles Bermant had relied on several sources that respondents asserted were patently unreliable. Generally, respondents charged that petitioners had failed adequately to verify their information before publishing. Respondents also presented evidence that William McGaw, an editor of The Investigator, had told petitioner Adkins before publication that the articles were “terrible” and “ridiculous.” In ruling on the motion for summary judgment, the District Court first held that respondents were limited- purpose public figures and that New York Times therefore applied. 3 The District Court then held that Bermant's thorough investigation and research and his reliance on numerous sources precluded a finding of actual malice. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 125 of 520 PageID 761 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Thus, the District Court granted the motion and entered judgment in favor of petitioners. 3 In Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974), this Court summarized who will be considered to be a public figure to whom the New York Times standards will apply: “[The public figure] designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.” The District Court found that respondents, as political lobbyists, are the second type of political figure described by the Gertz court—a limited- purpose public figure. See also Waldbaum v. Fairchild Publications, Inc., 201 U.S.App.D.C. 301, 306, 627 F.2d 1287, 1292, cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). On appeal, the Court of Appeals affirmed as to 21 and reversed as to 9 of the allegedly defamatory statements. Although it noted that respondents did not challenge the District Court's ruling that they were limited-purpose public *247 figures and that they were thus required to prove their case under New York Times, the Court of Appeals nevertheless held that for the purposes of summary judgment the requirement that actual malice be proved by clear and convincing evidence, rather than by a preponderance of the evidence, was irrelevant: To defeat summary judgment respondents did not have to show that a jury could find actual malice with “convincing clarity.” The court based this conclusion on a perception that to impose the greater evidentiary burden at summary judgment “would change the threshold summary judgment inquiry from a search for a minimum of facts supporting the plaintiff's case to an evaluation of the weight of those facts and (it would seem) of the weight of at least the defendant's uncontroverted facts as well.” 241 U.S.App.D.C., at 253, 746 F.2d, at 1570. The court then held, with respect to nine of the statements, that summary judgment had been improperly granted because “a jury could reasonably conclude that the ... allegations were defamatory, false, and made with actual malice.” Id., at 260, 746 F.2d at 1577. II A [1] Our inquiry is whether the Court of Appeals erred in holding that the heightened evidentiary requirements that apply to proof of actual malice in this New York Times case need not be considered for the purposes of a motion for summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if **2510 the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported *248 motion for summary judgment; the requirement is that there be no genuine issue of material fact. [2] [3] As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. See generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, pp. 93–95 (1983). This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs. Any proof or evidentiary requirements imposed by the substantive law are not germane to this inquiry, since WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 126 of 520 PageID 762 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 materiality is only a criterion for categorizing factual disputes in their relation to the legal elements of the claim and not a criterion for evaluating the evidentiary underpinnings of those disputes. [4] More important for present purposes, summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. In First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), we affirmed a grant of summary judgment for an antitrust defendant where the issue was whether there was a genuine factual dispute as to the existence of a conspiracy. We noted Rule 56(e)'s provision that a party opposing a properly supported motion for summary judgment “ ‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.’ ” We observed further that “[i]t is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to *249 trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” 391 U.S., at 288–289, 88 S.Ct., at 1592. We went on to hold that, in the face of the defendant's properly supported motion for summary judgment, the plaintiff could not rest on his allegations of a conspiracy to get to a jury without “any significant probative evidence tending to support the complaint.” Id., at 290, 88 S.Ct., at 1593. Again, in Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the Court emphasized that the availability of summary judgment turned on whether a proper jury question was presented. There, one of the issues was whether there was a conspiracy between private persons and law enforcement officers. The District Court granted summary judgment for the defendants, stating that there was no evidence from which reasonably minded jurors might draw an inference of conspiracy. We reversed, pointing out that the moving parties' submissions had not foreclosed the possibility of the existence of certain facts from which “it would be open to a jury ... to infer from the circumstances” that there had been a meeting of the minds. Id., at 158–159, 90 S.Ct., at 1608, 1609. [5] [6] Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under **2511 Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. As Adickes, supra, and Cities Service, supra, indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Cities Service, supra, 391 U.S., at 288–289, 88 S.Ct., at 1592. If the evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam ), or is not significantly probative, *250 Cities Service, supra, at 290, 88 S.Ct., at 1592, summary judgment may be granted. [7] That this is the proper focus of the inquiry is strongly suggested by the Rule itself. Rule 56(e) provides that, when a properly supported motion for summary judgment is made, 4 the adverse party “must set forth specific facts showing that there is a genuine issue for trial.” 5 And, as we noted above, Rule 56(c) provides that the trial judge shall then grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. There is no requirement that the trial judge make findings of fact. 6 The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. 4 Our analysis here does not address the question of the initial burden of production of evidence placed by Rule 56 on the party moving for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed. 265 (1986). Respondents have not raised this issue here, and for the purposes of our discussion we assume that the moving party has met initially the requisite evidentiary burden. 5 This requirement in turn is qualified by Rule 56(f)'s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 127 of 520 PageID 763 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 opposition. In our analysis here, we assume that both parties have had ample opportunity for discovery. 6 In many cases, however, findings are extremely helpful to a reviewing court. [8] Petitioners suggest, and we agree, that this standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co., 320 U.S. 476, 479–480, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). If reasonable minds could differ as to the import of the evidence, however, *251 a verdict should not be directed. Wilkerson v. McCarthy, 336 U.S. 53, 62, 69 S.Ct. 413, 417, 93 L.Ed. 497 (1949). As the Court long ago said in Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872), and has several times repeated: “Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla of evidence in support of a case the judge was bound to leave it to the jury, but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” (Footnotes omitted.) See also Pleasants v. Fant, 22 Wall. 116, 120–121, 22 L.Ed. 780 (1875); Coughran v. Bigelow, 164 U.S. 301, 307, 17 S.Ct. 117, 119, 41 L.Ed. 442 (1896); Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 394, 77 L.Ed. 819 (1933). **2512 The Court has said that summary judgment should be granted where the evidence is such that it “would require a directed verdict for the moving party.” Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967 (1944). And we have noted that the “genuine issue” summary judgment standard is “very close” to the “reasonable jury” directed verdict standard: “The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted.” Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11, 103 S.Ct. 2161, 2171, n. 11, 76 L.Ed.2d 277 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission *252 to a jury or whether it is so one-sided that one party must prevail as a matter of law. B [9] [10] [11] Progressing to the specific issue in this case, we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict—“whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Munson, supra, 14 Wall., at 448. In terms of the nature of the inquiry, this is no different from the consideration of a motion for acquittal in a criminal case, where the beyond-a-reasonable-doubt standard applies and where the trial judge asks whether a reasonable jury could find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318– 319, 99 S.Ct. 2781, 2788–2789, 61 L.Ed.2d 560 (1979). Similarly, where the First Amendment mandates a “clear and convincing” standard, the trial judge in disposing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that the plaintiff had shown actual malice with convincing clarity. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 128 of 520 PageID 764 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 *253 The case for the proposition that a higher burden of proof should have a corresponding effect on the judge when deciding whether to send the case to the jury was well made by the Court of Appeals for the Second Circuit in United States v. Taylor, 464 F.2d 240 (2d Cir.1972), which overruled United States v. Feinberg, 140 F.2d 592 (2d Cir.1944), a case holding that the standard of evidence necessary for a judge to send a case to the jury is the same in both civil and criminal cases even though the standard that the jury must apply in a criminal case is more demanding than in civil proceedings. Speaking through Judge Friendly, the Second Circuit said: “It would seem at first blush—and we think also at second—that more ‘facts in evidence’ are needed for the judge to allow [reasonable jurors to pass on a claim] when the proponent is required to establish [the claim] not merely by a preponderance of the evidence but ... beyond a reasonable doubt.” 464 F.2d, at 242. The court could not find a “satisfying explanation in the Feinberg opinion why the judge should not place this higher burden on the prosecution in criminal proceedings before sending the case to the jury.” Ibid. The Taylor court **2513 also pointed out that almost all the Circuits had adopted something like Judge Prettyman's formulation in Curley v. United States, 160 F.2d 229, 232– 233 (D.C.Cir.1947): “The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the *254 two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.” This view is equally applicable to a civil case to which the “clear and convincing” standard applies. Indeed, the Taylor court thought that it was implicit in this Court's adoption of the clear-and-convincing-evidence standard for certain kinds of cases that there was a “concomitant duty on the judge to consider the applicable burden when deciding whether to send a case to the jury.” 464 F.2d, at 243. Although the court thought that this higher standard would not produce different results in many cases, it could not say that it would never do so. [12] [13] Just as the “convincing clarity” requirement is relevant in ruling on a motion for directed verdict, it is relevant in ruling on a motion for summary judgment. When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence. Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some *255 benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards. [14] [15] Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 129 of 520 PageID 765 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Adickes, 398 U.S., at 158–159, 90 S.Ct., at 1608–1609. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. **2514 Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948). [16] In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages. Consequently, where the New York Times “clear and convincing” evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding *256 either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not. 7 7 Our statement in Hutchinson v. Proxmire, 443 U.S. 111, 120, n. 9, 99 S.Ct. 2675, 2680, n. 9 (1979), that proof of actual malice “does not readily lend itself to summary disposition” was simply an acknowledgment of our general reluctance “to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional protections embodied in the substantive laws.” Calder v. Jones, 465 U.S. 783, 790–791, 104 S.Ct. 1482, 1487–1488, 79 L.Ed.2d 804 (1984). III [17] Respondents argue, however, that whatever may be true of the applicability of the “clear and convincing” standard at the summary judgment or directed verdict stage, the defendant should seldom if ever be granted summary judgment where his state of mind is at issue and the jury might disbelieve him or his witnesses as to this issue. They rely on Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), for this proposition. We do not understand Poller, however, to hold that a plaintiff may defeat a defendant's properly supported motion for summary judgment in a conspiracy or libel case, for example, without offering any concrete evidence from which a reasonable juror could return a verdict in his favor and by merely asserting that the jury might, and legally could, disbelieve the defendant's denial of a conspiracy or of legal malice. The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Based on that Rule, Cities Service, 391 U.S., at 290, 88 S.Ct., at 1593, held that the plaintiff could not defeat the properly supported summary judgment motion of a defendant charged with a conspiracy without offering “any significant probative evidence tending to support the complaint.” As we have recently said, “discredited testimony *257 is not [normally] considered a sufficient basis for drawing a contrary conclusion.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512, 104 S.Ct. 1949, 1966, 80 L.Ed.2d 502 (1984). Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery. We repeat, however, that the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that requires a trial. IV In sum, a court ruling on a motion for summary judgment must be guided by the New York Times “clear and convincing” **2515 evidentiary standard in determining whether a genuine issue of actual malice exists—that is, WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 130 of 520 PageID 766 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Because the Court of Appeals did not apply the correct standard in reviewing the District Court's grant of summary judgment, we vacate its decision and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice BRENNAN, dissenting. The Court today holds that “whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case,” ante, at 2513. 1 In my view, the Court's analysis is deeply flawed, *258 and rests on a shaky foundation of unconnected and unsupported observations, assertions, and conclusions. Moreover, I am unable to divine from the Court's opinion how these evidentiary standards are to be considered, or what a trial judge is actually supposed to do in ruling on a motion for summary judgment. Accordingly, I respectfully dissent. 1 The Court's holding today is not, of course, confined in its application to First Amendment cases. Although this case arises in the context of litigation involving libel and the press, the Court's holding is that “in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.” Ante, at 2513–2514. Accordingly, I simply do not understand why Justice REHNQUIST, dissenting, feels it appropriate to cite Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and to remind the Court that we have consistently refused to extend special procedural protections to defendants in libel and defamation suits. The Court today does nothing of the kind. It changes summary judgment procedure for all litigants, regardless of the substantive nature of the underlying litigation. Moreover, the Court's holding is not limited to those cases in which the evidentiary standard is “heightened,” i.e., those in which a plaintiff must prove his case by more than a mere preponderance of the evidence. Presumably, if a district court ruling on a motion for summary judgment in a libel case is to consider the “quantum and quality” of proof necessary to support liability under New York Times, ante, at 2513 and then ask whether the evidence presented is of “sufficient caliber or quantity” to support that quantum and quality, the court must ask the same questions in a garden- variety action where the plaintiff need prevail only by a mere preponderance of the evidence. In other words, today's decision by its terms applies to all summary judgment motions, irrespective of the burden of proof required and the subject matter of the suit. To support its holding that in ruling on a motion for summary judgment a trial court must consider substantive evidentiary burdens, the Court appropriately begins with the language of Rule 56(c), which states that summary judgment shall be granted if it appears that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Court then purports to restate this Rule, and asserts that “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Ante, at 2510. No direct authority is cited for the proposition that in order to determine whether a dispute is “genuine” for Rule 56 purposes a judge must ask if a “reasonable” jury could find for the non-moving party. Instead, the Court quotes from *259 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968), to the effect that a summary judgment motion will be defeated if “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial,” ante, at 2510, and that a plaintiff may not, in defending against a motion for summary judgment, rest on mere allegations or denials of his pleadings. After citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), for the unstartling proposition that “the availability of summary judgment turn[s] on whether a proper jury question [is] presented,” ante, at –––, the Court then reasserts, again with no direct authority, that in determining whether **2516 a jury question is presented, the inquiry is whether there are factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Ante, at 2511. The Court maintains that this summary judgment inquiry “mirrors” that which applies in the context of a motion for directed verdict under Federal Rule of Civil Procedure 50(a): “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Ante, at 2511. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 131 of 520 PageID 767 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 Having thus decided that a “genuine” dispute is one which is not “one-sided,” and one which could “reasonably” be resolved by a “fair-minded” jury in favor of either party, ibid., the Court then concludes: “Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.” Ante, at 2513. *260 As far as I can discern, this conclusion, which is at the heart of the case, has been reached without the benefit of any support in the case law. Although, as noted above, the Court cites Adickes and Cities Service, those cases simply do not stand for the proposition that in ruling on a summary judgment motion, the trial court is to inquire into the “one-sidedness” of the evidence presented by the parties. Cities Service involved the propriety of a grant of summary judgment in favor of a defendant alleged to have conspired to violate the antitrust laws. The issue in the case was whether, on the basis of the facts in the record, a jury could infer that the defendant had entered into a conspiracy to boycott. No direct evidence of the conspiracy was produced. In agreeing with the lower courts that the circumstantial evidence presented by the plaintiff was insufficient to take the case to the jury, we observed that there was “one fact” that petitioner had produced to support the existence of the illegal agreement, and that that single fact could not support petitioner's theory of liability. Critically, we observed that “[t]he case at hand presents peculiar difficulties because the issue of fact crucial to petitioner's case is also an issue of law, namely the existence of a conspiracy.” 391 U.S., at 289, 88 S.Ct., at 1592. In other words, Cities Service is at heart about whether certain facts can support inferences that are, as a matter of antitrust law, sufficient to support a particular theory of liability under the Sherman Act. Just this Term, in discussing summary judgment in the context of suits brought under the antitrust laws, we characterized both Cities Service and Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), as cases in which “antitrust law limit[ed] the range of permissible inferences from ambiguous evidence....” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (emphasis added). Cities Service thus provides no authority for the conclusion that Rule 56 requires a trial court to consider whether direct evidence produced by the parties is “one-sided.” To the contrary, in Matsushita, the most recent *261 case to cite and discuss Cities Service, we stated that the requirement that a dispute be “genuine” means simply that there must be more than “some metaphysical doubt as to the material facts.” 475 U.S., at 586, 106 S.Ct., at 1356. 2 2 Writing in dissent in Matsushita, Justice WHITE stated that he agreed with the summary judgment test employed by the Court, namely, that “ ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” 475 U.S., at 599, 106 S.Ct., at 1363. Whether the shift, announced today, from looking to a “reasonable” rather than a “rational” jury is intended to be of any significance, there are other aspects of the Matsushita dissent which I find difficult to square with the Court's holding in the present case. The Matsushita dissenters argued: “... [T]he Court summarizes Monsanto Co. v. Spray-Rite Service Corp., supra, as holding that ‘courts should not permit factfinders to infer conspiracies when such inferences are implausible....’ Ante, at ––––. Such language suggests that a judge hearing a defendant's motion for summary judgment in an antitrust case should go beyond the traditional summary judgment inquiry and decide for himself whether the weight of the evidence favors the plaintiff. Cities Service and Monsanto do not stand for any such proposition. Each of those cases simply held that a particular piece of evidence standing alone was insufficiently probative to justify sending a case to the jury. These holdings in no way undermine the doctrine that all evidence must be construed in the light most favorable to the party opposing summary judgment. “If the Court intends to give every judge hearing a motion for summary judgment in an antitrust case the job of determining if the evidence makes the inference of conspiracy more probable than not, it is overturning settled law. If the Court does not intend such a pronouncement, it should refrain from using unnecessarily broad and confusing language.” Id., at 600–601, 106 S.Ct., at 1363 (footnote omitted). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 132 of 520 PageID 768 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 In my view, these words are as applicable and relevant to the Court's opinion today as they were to the opinion of the Court in Matsushita. **2517 Nor does Adickes, also relied on by the Court, suggest in any way that the appropriate summary judgment inquiry is whether the evidence overwhelmingly supports one party. Adickes, like Cities Service, presented the question of whether a grant of summary judgment in favor of a defendant on a conspiracy count was appropriate. The plaintiff, a *262 white schoolteacher, maintained that employees of defendant Kress conspired with the police to deny her rights protected by the Fourteenth Amendment by refusing to serve her in one of its lunchrooms simply because she was white and accompanied by a number of black schoolchildren. She maintained, among other things, that Kress arranged with the police to have her arrested for vagrancy when she left the defendant's premises. In support of its motion for summary judgment, Kress submitted statements from a deposition of one of its employees asserting that he had not communicated or agreed with the police to deny plaintiff service or to have her arrested, and explaining that the store had taken the challenged action not because of the race of the plaintiff, but because it was fearful of the reaction of some of its customers if it served a racially mixed group. Kress also submitted affidavits from the Chief of Police and the arresting officers denying that the store manager had requested that petitioner be arrested, and noted that in the plaintiff's own deposition, she conceded that she had no knowledge of any communication between the police and any Kress employee and was relying on circumstantial evidence to support her allegations. In opposing defendant's motion for summary judgment, plaintiff stated that defendant in its moving papers failed to dispute an allegation in the complaint, a statement at her deposition, and an unsworn statement by a Kress employee all to the effect that there was a policeman in the store at the time of the refusal to serve, and that it was this policeman who subsequently made the arrest. Plaintiff argued that this sequence of events “created a substantial enough possibility of a conspiracy to allow her to proceed to trial....” 398 U.S., at 157, 90 S.Ct., at 1608. We agreed, and therefore reversed the lower courts, reasoning that Kress “did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some *263 Kress employee that petitioner not be served.” 398 U.S. at 157, 90 S.Ct., at 1608. Despite the fact that none of the materials relied on by plaintiff met the requirements of Rule 56(e), we stated nonetheless that Kress failed to meet its initial burden of showing that there was no genuine dispute of a material fact. Specifically, we held that because Kress failed to negate plaintiff's materials suggesting that a **2518 policeman was in fact in the store at the time of the refusal to serve, “it would be open to a jury ... to infer from the circumstances that the policeman and a Kress employee had a ‘meeting of the minds' and thus reached an understanding that petitioner should be refused service.” Ibid. In Adickes we held that a jury might permissibly infer a conspiracy from the mere presence of a policeman in a restaurant. We never reached and did not consider whether the evidence was “one-sided,” and had we done so, we clearly would have had to affirm, rather than reverse, the lower courts, since in that case there was no admissible evidence submitted by petitioner, and a significant amount of evidence presented by the defendant tending to rebut the existence of a conspiracy. The question we did reach was simply whether, as a matter of conspiracy law, a jury would be entitled, again, as a matter of law, to infer from the presence of a policeman in a restaurant the making of an agreement between that policeman and an employee. Because we held that a jury was entitled so to infer, and because the defendant had not carried its initial burden of production of demonstrating that there was no evidence that there was not a policeman in the lunchroom, we concluded that summary judgment was inappropriate. Accordingly, it is surprising to find the case cited by the majority for the proposition that “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Ante, at 2511. There was, of course, no admissible evidence in Adickes favoring the nonmoving plaintiff; there was only an *264 unrebutted assertion that a Kress employee and a policeman were in the same room at the time of the alleged constitutional violation. Like Cities Service, Adickes suggests that on a defendant's motion for summary judgment, a trial court must consider whether, as a matter of the substantive law of the plaintiff's cause of action, a jury will be permitted to draw inferences supporting the plaintiff's legal theory. In Cities Service we found, in effect, that the plaintiff WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 133 of 520 PageID 769 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 had failed to make out a prima facie case; in Adickes we held that the moving defendant had failed to rebut the plaintiff's prima facie case. In neither case is there any intimation that a trial court should inquire whether plaintiff's evidence is “significantly probative,” as opposed to “merely colorable,” or, again, “one-sided.” Nor is there in either case any suggestion that once a nonmoving plaintiff has made out a prima facie case based on evidence satisfying Rule 56(e) that there is any showing that a defendant can make to prevail on a motion for summary judgment. Yet this is what the Court appears to hold, relying, in part, on these two cases. 3 3 I am also baffled by the other cases cited by the majority to support its holding. For example, the Court asserts that “[i]f ... evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam), ... summary judgment may be granted.” Ante, at 2511. In Dombrowski, we reversed a judgment granting summary judgment to the counsel to the Internal Security Subcommittee of the Judiciary Committee of the United States Senate because there was “controverted evidence in the record ... which affords more than merely colorable substance” to the petitioners' allegations. 387 U.S., at 84, 87 S.Ct., at 1427. Dombrowski simply cannot be read to mean that summary judgment may be granted if evidence is merely colorable; what the case actually says is that summary judgment will be denied if evidence is “controverted,” because when evidence is controverted, assertions become colorable for purposes of motions for summary judgment law. As explained above, and as explained also by Justice REHNQUIST in his dissent, see post, at 2522, I cannot agree that the authority cited by the Court supports its position. In my view, the Court's result is the product of an exercise *265 akin to the child's game of “telephone,” in which a message is repeated from one person to another and then another; after some time, the message bears little resemblance to what was originally spoken. In the present case, the Court purports to restate the summary judgment test, but with each repetition, the original understanding is increasingly distorted. **2519 But my concern is not only that the Court's decision is unsupported; after all, unsupported views may nonetheless be supportable. I am more troubled by the fact that the Court's opinion sends conflicting signals to trial courts and reviewing courts which must deal with summary judgment motions on a day-to-day basis. This case is about a trial court's responsibility when considering a motion for summary judgment, but in my view, the Court, while instructing the trial judge to “consider” heightened evidentiary standards, fails to explain what that means. In other words, how does a judge assess how one-sided evidence is, or what a “fair-minded” jury could “reasonably” decide? The Court provides conflicting clues to these mysteries, which I fear can lead only to increased confusion in the district and appellate courts. The Court's opinion is replete with boilerplate language to the effect that trial courts are not to weigh evidence when deciding summary judgment motions: “[I]t is clear enough from our recent cases that at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter....” Ante, at 2511. “Our holding ... does not denigrate the role of the jury.... Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non- movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Ante, at 2513. *266 But the Court's opinion is also full of language which could surely be understood as an invitation—if not an instruction—to trial courts to assess and weigh evidence much as a juror would: “When determining if a genuine factual issue ... exists ..., a trial judge must bear in mind the actual quantum and quantity of proof necessary to support liability.... For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quality to allow a rational finder of fact to find actual malice by clear and convincing evidence.” Ante, at 2513 (emphasis added). “[T]he inquiry ... [is] whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Ante, at 2512 (emphasis added). “[T]he judge must ask himself ... whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 134 of 520 PageID 770 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Ibid. I simply cannot square the direction that the judge “is not himself to weigh the evidence” with the direction that the judge also bear in mind the “quantum” of proof required and consider whether the evidence is of sufficient “caliber or quantity” to meet that “quantum.” I would have thought that a determination of the “caliber and quantity,” i.e., the importance and value, of the evidence in light of the “quantum,” i.e., amount “required,” could only be performed by weighing the evidence. If in fact, this is what the Court would, under today's decision, require of district courts, then I am fearful that this new rule—for this surely would be a brand new procedure—will transform what is meant to provide an expedited “summary” *267 procedure into a full-blown paper trial on the merits. It is hard for me to imagine that a responsible counsel, aware that the judge will be assessing the “quantum” of the evidence he is presenting, will risk either moving for or responding to a summary judgment motion without coming forth with all of the evidence he can muster in support of his client's case. Moreover, if the judge on motion for summary judgment really is to weigh the evidence, then **2520 in my view grave concerns are raised concerning the constitutional right of civil litigants to a jury trial. It may well be, as Justice REHNQUIST suggests, see post, at 2521, that the Court's decision today will be of little practical effect. I, for one, cannot imagine a case in which a judge might plausibly hold that the evidence on motion for summary judgment was sufficient to enable a plaintiff bearing a mere preponderance burden to get to the jury—i.e., that a prima facie case had been made out—but insufficient for a plaintiff bearing a clear-and- convincing burden to withstand a defendant's summary judgment motion. Imagine a suit for breach of contract. If, for example, the defendant moves for summary judgment and produces one purported eyewitness who states that he was present at the time the parties discussed the possibility of an agreement, and unequivocally denies that the parties ever agreed to enter into a contract, while the plaintiff produces one purported eyewitness who asserts that the parties did in fact come to terms, presumably that case would go to the jury. But if the defendant produced not one, but 100 eyewitnesses, while the plaintiff stuck with his single witness, would that case, under the Court's holding, still go to the jury? After all, although the plaintiff's burden in this hypothetical contract action is to prove his case by a mere preponderance of the evidence, the judge, so the Court tells us, is to “ask himself ... whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Ante, at 2512. Is there, in this hypothetical example, “a sufficient disagreement to require submission *268 to a jury,” or is the evidence “so one-sided that one party must prevail as a matter of law”? Ibid. Would the result change if the plaintiff's one witness were now shown to be a convicted perjurer? Would the result change if, instead of a garden-variety contract claim, the plaintiff sued on a fraud theory, thus requiring him to prove his case by clear and convincing evidence? It seems to me that the Court's decision today unpersuasively answers the question presented, and in doing so raises a host of difficult and troubling questions for which there may well be no adequate solutions. What is particularly unfair is that the mess we make is not, at least in the first instance, our own to deal with; it is the district courts and courts of appeals that must struggle to clean up after us. In my view, if a plaintiff presents evidence which either directly or by permissible inference (and these inferences are a product of the substantive law of the underlying claim) supports all of the elements he needs to prove in order to prevail on his legal claim, the plaintiff has made out a prima facie case and a defendant's motion for summary judgment must fail regardless of the burden of proof that the plaintiff must meet. In other words, whether evidence is “clear and convincing,” or proves a point by a mere preponderance, is for the factfinder to determine. As I read the case law, this is how it has been, and because of my concern that today's decision may erode the constitutionally enshrined role of the jury, and also undermine the usefulness of summary judgment procedure, this is how I believe it should remain. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. The Court, apparently moved by concerns for intellectual tidiness, mistakenly decides that the “clear and convincing evidence” standard governing finders of fact in libel cases must be applied by trial courts in deciding a motion for summary judgment in such a case. The Court refers to WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 135 of 520 PageID 771 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 16 this as a “substantive standard,” but I think it is actually a procedural *269 requirement engrafted onto Rule 56, contrary to our statement in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), that “[w]e have already declined in other contexts to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional **2521 protections embodied in the substantive laws.” Id., at 790–791, 104 S.Ct., at 1487–1488. The Court, I believe, makes an even greater mistake in failing to apply its newly announced rule to the facts of this case. Instead of thus illustrating how the rule works, it contents itself with abstractions and paraphrases of abstractions, so that its opinion sounds much like a treatise about cooking by someone who has never cooked before and has no intention of starting now. There is a large class of cases in which the higher standard imposed by the Court today would seem to have no effect at all. Suppose, for example, on motion for summary judgment in a hypothetical libel case, the plaintiff concedes that his only proof of malice is the testimony of witness A. Witness A testifies at his deposition that the reporter who wrote the story in question told him that she, the reporter, had done absolutely no checking on the story and had real doubts about whether or not it was correct as to the plaintiff. The defendant's examination of witness A brings out that he has a prior conviction for perjury. May the Court grant the defendant's motion for summary judgment on the ground that the plaintiff has failed to produce sufficient proof of malice? Surely not, if the Court means what it says, when it states: “Credibility determinations ... are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Ante, at 2513. The case proceeds to trial, and at the close of the plaintiff's evidence the defendant moves for a directed verdict on the *270 ground that the plaintiff has failed to produce sufficient evidence of malice. The only evidence of malice produced by the plaintiff is the same testimony of witness A, who is duly impeached by the defendant for the prior perjury conviction. In addition, the trial judge has now had an opportunity to observe the demeanor of witness A, and has noticed that he fidgets when answering critical questions, his eyes shift from the floor to the ceiling, and he manifests all other indicia traditionally attributed to perjurers. May the trial court at this stage grant a directed verdict? Again, surely not; we are still dealing with “credibility determinations.” The defendant now puts on its testimony, and produces three witnesses who were present at the time when witness A alleges that the reporter said she had not checked the story and had grave doubts about its accuracy as to plaintiff. Witness A concedes that these three people were present at the meeting, and that the statement of the reporter took place in the presence of all these witnesses. Each witness categorically denies that the reporter made the claimed statement to witness A. May the trial court now grant a directed verdict at the close of all the evidence? Certainly the plaintiff's case is appreciably weakened by the testimony of three disinterested witnesses, and one would hope that a properly charged jury would quickly return a verdict for the defendant. But as long as credibility is exclusively for the jury, it seems the Court's analysis would still require this case to be decided by that body. Thus, in the case that I have posed, it would seem to make no difference whether the standard of proof which the plaintiff had to meet in order to prevail was the preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt. But if the application of the standards makes no difference in the case that I hypothesize, one may fairly ask in what sort of case does the difference in standards *271 make a difference in outcome? Cases may be posed dealing with evidence that is essentially documentary, rather than testimonial; but the Court has held in a related context involving Federal Rule of Civil Procedure 52(a) that inferences from documentary evidence are as much the prerogative **2522 of the finder of fact as inferences as to the credibility of witnesses. Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). The Court affords the lower courts no guidance whatsoever as to what, if any, difference the abstract standards that it propounds would make in a particular case. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 136 of 520 PageID 772 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 17 There may be more merit than the Court is willing to admit to Judge Learned Hand's observation in United States v. Feinberg, 140 F.2d 592, 594 (CA2), cert. denied, 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed.2d 1562 (1944), that “[w]hile at times it may be practicable” to “distinguish between the evidence which should satisfy reasonable men, and the evidence which should satisfy reasonable men beyond a reasonable doubt[,] ... in the long run the line between them is too thin for day to day use.” The Court apparently approves the overruling of the Feinberg case in the Court of Appeals by Judge Friendly's opinion in United States v. Taylor, 464 F.2d 240 (1972). But even if the Court is entirely correct in its judgment on this point, Judge Hand's statement seems applicable to this case because the criminal case differs from the libel case in that the standard in the former is proof “beyond a reasonable doubt,” which is presumably easier to distinguish from the normal “preponderance of the evidence” standard than is the intermediate standard of “clear and convincing evidence.” More important for purposes of analyzing the present case, there is no exact analog in the criminal process to the motion for summary judgment in a civil case. Perhaps the closest comparable device for screening out unmeritorious cases in the criminal area is the grand jury proceeding, though the comparison is obviously not on all fours. The standard for allowing a criminal case to proceed to trial is not whether the government has produced prima facie evidence of guilt beyond *272 a reasonable doubt for every element of the offense, but only whether it has established probable cause. See United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 941–942, 89 L.Ed.2d 50 (1986). Thus, in a criminal case the standard used prior to trial is much more lenient than the “clear beyond a reasonable doubt” standard which must be employed by the finder of fact. The three differentiated burdens of proof in civil and criminal cases, vague and impressionistic though they necessarily are, probably do make some difference when considered by the finder of fact, whether it be a jury or a judge in a bench trial. Yet it is not a logical or analytical message that the terms convey, but instead almost a state of mind; we have previously said: “Candor suggests that, to a degree, efforts to analyze what lay jurors understand concerning the differences among these three tests ... may well be largely an academic exercise.... Indeed, the ultimate truth as to how the standards of proof affect decisionmaking may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence.” Addington v. Texas, 441 U.S. 418, 424–425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979) (emphasis added). The Court's decision to engraft the standard of proof applicable to a factfinder onto the law governing the procedural motion for a summary judgment (a motion that has always been regarded as raising a question of law rather than a question of fact, see, e.g., La Riviere v. EEOC, 682 F.2d 1275, 1277–1278 (CA9 1982) (Wallace, J.)), will do great mischief with little corresponding benefit. The primary effect of the Court's opinion today will likely be to cause the decisions of trial judges on summary judgment motions in libel cases to be *273 more erratic and inconsistent than before. This is largely because the Court has **2523 created a standard that is different from the standard traditionally applied in summary judgment motions without even hinting as to how its new standard will be applied to particular cases. All Citations 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202, 54 USLW 4755, 4 Fed.R.Serv.3d 1041, 12 Media L. Rep. 2297 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 137 of 520 PageID 773 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Disagreement Recognized by Ansoumana v. Gristede's Operating Corp., S.D.N.Y., January 28, 2003 88 F.3d 925 United States Court of Appeals, Eleventh Circuit. Immacula ANTENOR, et al., Plaintiffs–Appellants, Ysnel OSNEL, Plaintiff, v. D & S FARMS; Iori Farms, Inc.; Virgil S. Gil Turke, a/k/a Virgil Banciu; AG– Tech Services, Inc., Defendants–Appellees. No. 95–4292. | July 19, 1996. Synopsis Seasonal agricultural workers brought claims against growers under Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and Fair Labor Standards Act (FLSA) alleging that growers failed to keep hourly records, pay unemployment compensation and social security taxes, to pay wages promptly when due, use labor contractors to recruit and transport them without reasonably insuring that contractors were registered and insured, and failed to pay minimum wage. The United States District Court for the Southern District of Florida, No. 90–868–CIV-DLG, Donald L. Graham, J., 866 F.Supp. 1389, granted summary judgment in favor of growers. Agricultural workers appealed. The Court of Appeals, Barkett, Circuit Judge, held that growers and labor contractor were joint employers for purposes of FLSA and AWPA. Reversed and remanded. West Headnotes (11) [1] Federal Courts Wages, hours, and working conditions Determination of employment status under FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA) is a question of law subject to de novo review. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq. 16 Cases that cite this headnote [2] Labor and Employment Suffering or permitting to work Labor and Employment Employers An entity “suffers or permits” an individual to work so as to create an employment relationship under the FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA) if, as a matter of economic reality, the individual is dependent on the entity. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5). 69 Cases that cite this headnote [3] Labor and Employment Purpose Although Migrant and Seasonal Agricultural Worker Protection Act (AWPA) places responsibilities on farm labor contractors as well as on agricultural employers with respect to farm workers, Congress' plain intent was to protect migrant and seasonal workers from abuse and exploitation and to hold agricultural employers fully accountable as joint employers whenever facts suggest that liability is fairly imposed. Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 6 Cases that cite this headnote [4] Labor and Employment Joint employers Factors to consider in determining whether farm worker furnished by labor contractor is economically dependent on, and therefore jointly employed by, grower, for purposes of Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 138 of 520 PageID 774 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA) include nature and degree of grower's control of workers; degree of grower's supervision, direct or indirect, of work; grower's right, directly or indirectly, to hire, fire, or modify workers' employment conditions; grower's power to determine workers' pay rates or methods payment; grower's preparation of payroll and payment of wages; grower's ownership of facilities where work occurred; workers' performance of line-job integral to harvesting and production of saleable vegetables; and grower's and labor contractor's relative investment in equipment and facilities. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 75 Cases that cite this headnote [5] Labor and Employment Joint employers Question in “joint employment” cases under FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA) is not whether worker is more economically dependent on independent contractor or grower, with winner avoiding responsibility as an employer; rather than comparing employment relationships in order to exclude one, focus of each inquiry must be on each employment relationship as it exists between worker and party asserted to be a joint employer. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 44 Cases that cite this headnote [6] Labor and Employment Joint employers No one factor is determinative of whether grower and labor contractor are joint employers under the FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA). Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 5 Cases that cite this headnote [7] Labor and Employment Joint employers Each factor which is to be considered in determining whether grower and labor contractor are joint employers under FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA) must be applied with the ultimate notion in mind that it is economic dependence that indicates employee status. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 14 Cases that cite this headnote [8] Labor and Employment Evidence Joint employment relationship under FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA) is not determined by a mathematical formula; absence of evidence on any one or more of appropriate criteria does not preclude a finding that an agricultural employer was a joint employer along with a crew leader. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 6 Cases that cite this headnote [9] Labor and Employment Joint employers Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 139 of 520 PageID 775 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 In considering whether there is a joint employment relationship between grower and labor contractor for purposes of FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA), court must not allow common-law concepts of employment to distract its focus from determining whether there is economic dependency. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 12 Cases that cite this headnote [10] Labor and Employment Strict or liberal construction Labor and Employment Constitutional and Statutory Provisions Because FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA) are remedial statutes, they must be construed broadly. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq. 8 Cases that cite this headnote [11] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Growers and labor contractor were “joint employers” of farm workers for purposes of FLSA and Migrant and Seasonal Agricultural Worker Protection Act (AWPA), where growers exercised a measure of control in terms of numbers of workers needed and specific hours of work, growers exercised measure of supervision and directly intervened in work process, growers involved themselves in payroll process and in making provision for social security and workers' compensation insurance when labor contractor was too financially unstable to do so, growers owned facilities and controlled overall production scheme in which workers performed integral line job, and growers had substantial investment in equipment and facilities that were necessary for the work. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Migrant and Seasonal Agricultural Worker Protection Act, § 2 et seq., 29 U.S.C.A. § 1801 et seq.; 29 C.F.R. §§ 500.20(h)(4), 791.2. 25 Cases that cite this headnote Attorneys and Law Firms *927 Gregory S. Schell, Florida Rural Legal Services, Inc., Belle Glade, FL, for Appellants. Mary J. Rieser, U.S. Dept. of Labor, Washington, DC, for Amicus/Sec. of Labor. Bruce Goldstein, Washington, DC, for Amicus/Miller, Ford, Berman. Paula Wright Coleman, U.S. Dept. of Labor, Washington, DC, for Amicus/Secretary of Labor. David J. Stefany, Hogg, Allen, Norton & Blue, Tampa, FL, Monte B. Lake, McGuiness & Williams, Washington, DC, John J. Rademacher, American Farm Bureau Federation, Park Ridge, IL, for D & S Farms, Iori Farms. Appeal from the United States District Court for the Southern District of Florida. Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit Judge. Opinion BARKETT, Circuit Judge: Immacula Antenor and 610 other seasonal agricultural workers (“farmworkers” or “pickers”) appeal from a summary judgment in favor of D & S Farms and Iori Farms, Inc. (“growers”) on their claims under the Migrant and Seasonal Agricultural Worker Protection Act and the Fair Labor Standards Act. 1 The district court granted the judgment after concluding that the farmworkers presented insufficient evidence that they were “employed” by the growers under these statutes. Upon de novo review of Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 140 of 520 PageID 776 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 the record, we find substantial evidence that the growers, along with a labor contractor, were “joint employers” of the farmworkers. Accordingly, we reverse the summary judgment and remand for proceedings consistent with this opinion. 1 See Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801–72 (1994); Fair Labor Standards Act, 29 U.S.C. §§ 201–19 (1994). I. FACTUAL BACKGROUND The facts relevant to the existence of an employment relationship between the growers and pickers can be summarized as follows. 2 In the mid–1980s, the growers began producing snap beans for fresh market sale. In search of a steady supply of labor to pick the beans, the growers turned to Virgil Turke, owner and operator of Ag–Tech Services, Inc. (“Ag–Tech”), a labor contracting business. The growers and Turke agreed that he would assume responsibility for hiring, furnishing and paying the pickers, and that he would be paid $3.90 per box of beans. The farmworkers were among the people hired by Turke to pick the growers' crops between 1986 and 1989. 2 Because we are reviewing a summary judgment in the growers' favor, we view the evidence and all reasonable inferences therefrom in the light most favorable to the farmworkers. Parks v. City of Warner Robins, GA, 43 F.3d 609, 612–13 (11th Cir.1995). Based on planting schedules and market demand, the growers decided when to harvest a particular bean field. After selecting a field, they told Turke its location and the number of workers needed. Turke then arranged for subcontractors to recruit and hire pickers. After arriving at a field, the pickers were assigned rows by Turke and his subcontractors. They could not begin picking, however, until the growers and their onsite foremen gave the command to start work, because it was essential, for commercial reasons, that picking not begin until the morning dew had lifted from the beans. The pickers filled the boxes that were brought to the field by the growers and distributed by Turke and the subcontractors. As the pickers filled the initial allotment of boxes, they walked to the growers' field trucks, where one of the growers' employees gave them additional boxes. Two sets of supervisors, also known as “field walkers,” oversaw the pickers' work. One set was hired by Turke and the other set *928 was hired by the growers. Both sets of field walkers passed through the rows of beans, checking the work of individual pickers and, when work was found to be deficient, spoke directly to the picker to ensure that corrective steps were taken; the growers' field walkers also complained about deficient work to Turke and his subcontractors. The subcontractors' assistants carried full boxes to the growers' trucks, where they were weighed and closed by the subcontractors or their assistants. The growers' field walkers then loaded the boxes on trucks and drove them to the growers' packing facility. As the day progressed, more and more of the growers' field walkers' time was absorbed in stacking and loading boxes, with a corresponding decrease in the time devoted to supervision of individual bean pickers. Work normally concluded when the pickers completed the rows assigned to Turke by the growers. On some occasions, however, the growers decided the crew would work longer or shorter hours, depending on their harvest needs. If the growers decided, for example, to halt picking to avoid overloading their packing and storage facilities, their field walkers went to the field and removed the picking buckets from the pickers' hands. The growers' payment to Turke was based on the number of boxes of beans delivered to the packinghouse. Although the price was to be $3.90 per box, the actual payment was less. Because Turke was financially unable to purchase worker's compensation insurance for the farmworkers, the growers withheld 11¢ per box from his compensation to purchase a worker's compensation policy, which named the growers as the insured parties and employers of the farmworkers. The growers also computed social security taxes due on the workers and issued Turke two checks —one for the taxes and another for the agreed upon price per box less the social security taxes and the 11¢ per box for worker's compensation insurance. From his payment, Turke paid the subcontractors a set amount for each box picked by their workers, which varied depending on whether the subcontractor provided transportation to the farmworkers. The subcontractors then paid the farmworkers their wages. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 141 of 520 PageID 777 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 II. PROCEDURAL BACKGROUND The farmworkers filed suit against the growers, Turke and Ag–Tech under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801–72 (1994) (“AWPA”), and the Fair Labor Standards Act, 29 U.S.C. §§ 201–19 (1994) (“FLSA”). 3 Their complaint alleged that the growers, Turke and Ag–Tech violated the AWPA by failing to keep hourly records, pay unemployment compensation and social security taxes, and pay wages promptly when due, id. §§ 1831(c)(1), (2) & 1832(a), (c). The farmworkers alleged that the growers also violated the AWPA by using labor contractors to recruit and transport them without reasonably ensuring that the contractors were registered and insured, id. §§ 1841(b)(1) (C) & 1842. The farmworkers claimed that defendants violated the FLSA by failing to keep hourly records and pay minimum wage, id. §§ 206(a), 211(c). Defaults were entered against Turke and Ag–Tech for failure to file responsive pleadings. 3 We use the abbreviation “AWPA” to refer to the Migrant and Seasonal Agricultural Worker Protection Act. The Act is also occasionally referred to as the “MSPA” or the “MSAWPA.” We employ “AWPA” because it is the acronym utilized by the United States Supreme Court in its only opinion interpreting the Act. Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 640, 110 S.Ct. 1384, 1386, 108 L.Ed.2d 585 (1990). Following discovery, the parties filed cross motions for summary judgment on the growers' liability under the FLSA and the AWPA. The farmworkers argued that the growers were liable because they, along with Turke and Ag–Tech, were “joint employers” of the farmworkers. The growers contended that they were not liable because Turke was the farmworkers' sole employer. The district court granted summary judgment to the growers and denied summary judgment to the farmworkers, finding that there were no genuine issues of material fact and that the growers were entitled to judgment as a matter of law. See Antenor v. D & S Farms, Inc., 866 F.Supp. 1389 (S.D.Fla.1994). *929 III. DISCUSSION [1] A determination of employment status under the FLSA and the AWPA is a question of law subject to our de novo review. Aimable v. Long & Scott Farms, Inc., 20 F.3d 434, 440 (11th Cir.), cert. denied, 513 U.S. 943, 115 S.Ct. 351, 130 L.Ed.2d 306 (1994). Because we are reviewing a summary judgment in favor of the growers, we must determine whether there are genuine issues of material fact and, if not, whether the growers are entitled to judgment on the question of joint employment as a matter of law; stated differently, we must determine whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the pickers, support a reasonable conclusion that they were employed by the growers for purposes of the AWPA and the FLSA. See Parks v. City of Warner Robins, GA, 43 F.3d 609, 612–13 (11th Cir.1995). To do this, we initially consider the statutory definition of “employ” under the FLSA and AWPA and their legislative history. A. Statutory Background The FLSA was enacted in 1938 in order to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers....” 29 U.S.C. § 202(a), (b). It requires that employers, among other things, keep payroll records and pay employees a minimum hourly wage and overtime. Id. §§ 201– 11. The AWPA, enacted in 1983, was intended “to assure necessary protections for migrant and seasonal agricultural workers....” Id. § 1801. Among its provisions, the AWPA requires agricultural employers to register with the government, maintain employment records for workers, and comply with various compensation, housing and transportation provisions. Id. §§ 1811–44. [2] The growers' liability under the FLSA and the AWPA depends on whether they “employed” the farmworkers furnished by Turke. See id. § 203(d), (e)(1); id. § 1802(2). Both statutes utilize the same definition of “employ,” so if the growers employed the farmworkers under one statute, they necessarily employed them under the other. Aimable, 20 F.3d at 440. In defining “employment” under both statutes, Congress expressly rejected the common- law definition of employment, which is based on limiting concepts of control and supervision. See Walling v. Portland Terminal Co., 330 U.S. 148, 150–51, 67 S.Ct. 639, 640–41, 91 L.Ed. 809 (1947); Aimable, 20 F.3d at 439. 4 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 142 of 520 PageID 778 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Rather, an entity “employs” a person under the FLSA and the AWPA if it “suffers or permits” the individual to work. 29 U.S.C. § 203(g); id. § 1802(5). 5 An entity “suffers or permits” an individual to work if, as a matter of economic reality, the individual is dependent on the entity. Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936–37, 6 L.Ed.2d 100 (1961); Aimable, 20 F.3d at 439. 4 See also H.R.Rep. No. 97–885, 97th Cong., 2d Sess. (1982) 6–8 reprinted in 1982 U.S.C.C.A.N. 4547, 4552–54 (declaring intent that terms “employee,” “employer” and “independent contractor” used in AWPA “not be construed in their limited common law sense”). 5 The “suffer or permit to work” standard derives from state child-labor laws designed to reach businesses that used middlemen to illegally hire and supervise children. Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 n. 7, 67 S.Ct. 1473, 1476 n. 7, 91 L.Ed. 1772 (1947); People ex rel. Price v. Sheffield Farms– Slawson–Decker Co., 225 N.Y. 25, 121 N.E. 474, 476 (1918). It has been called “ ‘the broadest definition [of employee] that has ever been included in one act.’ ” United States v. Rosenwasser, 323 U.S. 360, 363 n. 3, 65 S.Ct. 295, 297 n. 3, 89 L.Ed. 301 (1945) (quoting 81 Cong.Rec. 7,657 (1938) (statement of Sen. Hugo Black)). To assure protection for workers, both statutory schemes make it clear that a worker can be economically dependent on, and thus jointly employed by, more than one entity at the same time. See 29 C.F.R. § 791.2; id. § 500.20(h)(4). Thus, the AWPA and the FLSA specifically cover “joint employment” relationships. The AWPA regulations define “joint employment” as follows: The term joint employment means a condition in which a single individual stands in the relation of an employee to two or more persons at the same time. A determination *930 of whether the employment is to be considered joint employment depends upon all the facts in the particular case. If the facts establish that two or more persons are completely disassociated with respect to the employment of a particular employee, a joint employment situation does not exist. Id. § 500.20(h)(4)(i); see also id. § 791.2. 6 6 The regulations also provide a means for the Secretary of Labor to determine whether a joint employment relationship exists: Questions will often arise under the Act as to whether individuals employed by a farm labor contractor are also jointly employed by another person engaged in agriculture (including any person defined in the Act as an agricultural employer or an agricultural association). Such joint employment relationships are common in agriculture and have often been addressed by the Federal courts. See ... Hodgson v. Griffin and Brand, 471 F.2d 235 [ (5th Cir.1973) ], ... Rutherford Food Corporation v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 [ (1947) ], ... and Usery v. Pilgrim Equipment Company, Inc., 527 F.2d 1308 [ (5th Cir.1976) ]. In determining whether such a joint employment relation exists the courts have cited the broad definition of employ in the [FLSA] which includes to suffer or permit to work. The factors considered significant by the courts in these cases and to be used as guidance by the Secretary, include, but are not limited to, the following: (A) The nature and degree of control of the workers; (B) The degree of supervision, direct or indirect, of the work; (C) The power to determine the pay rates or the methods of payment of the workers; (D) The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; (E) Preparation of payroll and the payment of wages. 29 C.F.R. § 500.20(h)(4)(ii); see also id. § 791.2 (1992) (defining “joint employment” under FLSA). [3] The AWPA's adoption of the FLSA definition of employment “was deliberate and done with the clear intent of adopting the ‘joint employer’ doctrine as a central foundation of this new statute; it is the indivisible hinge between certain important duties imposed for the protection of migrant and seasonal workers and those liable for any breach of these duties.” H.R.Rep. No. 97–885, 97th Cong., 2d Sess. (1982) 6, reprinted WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 143 of 520 PageID 779 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 in 1982 U.S.C.C.A.N. 4547, 4552 (“House Report”). Previous legislative efforts to protect farmworkers had focused on regulating the crewleaders who recruited, managed and paid the farmworkers. Id. at 4547–48. Those efforts, however, had failed to “reverse the historical pattern of abuse of migrant and seasonal farmworkers,” id. at 4549, primarily because crew leaders were transient and often insolvent, id. at 4548. Thus, in designing the AWPA, Congress took “a completely new approach,” id. at 4549, making agricultural entities directly responsible for farmworkers who, as a matter of economic reality, depended upon them, even if the workers were hired or employed by a middleman or independent contractor, id. at 4553–54. Although the AWPA places responsibilities on farm labor contractors as well as on agricultural employers, see 29 U.S.C. §§ 1811–44, “Congress' plain intent was to protect migrant and seasonal workers from abuse and exploitation, and to hold ‘agricultural employers' fully accountable as joint employers whenever the facts suggest that liability is fairly imposed.” Maldonado v. Lucca, 629 F.Supp. 483, 489 (D.N.J.1986). B. Applicable Caselaw In addition to the legislation, we are guided by a Supreme Court case and three Eleventh Circuit cases that have addressed the statutory definition of employment based upon economic dependence. In Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947), the Secretary of Labor sued a slaughterhouse operator for FLSA violations arising from its treatment of “boners,” who deboned meat. Id. at 723–24, 67 S.Ct. at 1473–74. The operator asserted that it did not “employ” the boners because they were recruited, hired and supervised by a labor contractor who, according to a contract with the operator, was to have “complete control” over the boners. Id. at 724–25, 67 S.Ct. at 1474. The Supreme Court held that the “determination of the relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity.” Id. at 730, 67 S.Ct. at 1477. In determining whether the operator suffered or permitted the boners to work, the Court emphasized that the boners were “part *931 of the integrated unit of production,” id. at 729, 67 S.Ct. at 1476, because the deboning occurred in the middle of the process of slaughtering the cattle, preparing the meat for deboning, packing it and shipping it, all of which was performed by slaughterhouse employees, id. at 726, 67 S.Ct. at 1475. The Court also noted that the slaughterhouse, and not the contractor, owned the premises and deboning equipment, and that the work, though skilled, “was more like piecework.” Id. at 730, 67 S.Ct. at 1477. “Upon the whole,” the Court determined that the slaughterhouse employed the boners for purposes of the FLSA. Id. at 730, 67 S.Ct. at 1477. A year later the former Fifth Circuit 7 decided Fahs v. Tree–Gold Co-op. Growers of Florida, Inc., 166 F.2d 40 (5th Cir.1948). 8 A citrus-packinghouse operator employed labor contractors to furnish workers to assemble, label, close and load the boxes in which the citrus fruit was packed. Id. at 42–43. The labor contractors were responsible for hiring, firing and supervising their crew members, and establishing their hours and wages. Id. at 43. The contractors, who were paid based on the number of boxes handled by their workers, paid their own crew workers. Id. The packinghouse operator maintained worker's compensation insurance to cover the workers. Id. at 42. The court concluded that the crew workers, as well as the contractors, were sufficiently dependent on the packinghouse to be considered its employees. Id. at 43–45. Looking beyond the formalities of who paid and supervised the workers, the court emphasized that the contractors and crewmembers' services “constituted a part of an integrated economic unit” controlled by the packinghouse operator; that the premises and all significant investment in tools and facilities were provided by the packinghouse; and that although the packinghouse did not directly control the workers, it asserted control whenever its interests were involved. Id. at 44–45. 7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), we held that all decisions of the former Fifth Circuit handed down before October 1, 1981, are binding in this court. 8 Although Fahs was a social security case, it is relevant because it was decided at a time when employment relationships for social security purposes were analyzed under the same legal test as the FLSA. See Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 1549–50, 91 L.Ed. 1947 (1947). In Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973), the Secretary of Labor sued a grower for FLSA violations related to its use of WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 144 of 520 PageID 780 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 harvest workers supplied by labor contractors. Id. at 235–36. The growers argued that the labor contractors were the harvest workers' sole employers. Id. at 237. The evidence showed that the contractors hired the pickers, drove them to the fields, directly supervised them and paid them their earnings. Id. at 236–37. The evidence also showed, however, that the work occurred on the grower's premises and that the grower's foreman decided daily starting times, made field assignments, oversaw the work, told contractors of problems with the workers' performances and what to pay the workers, and assisted the labor contractors in paying social security taxes. Id. at 236–37. Whether the grower was a joint employer of harvest workers, the court explained, “does not depend on technical or isolated factors” or on “the form of the relationship,” id. at 237 (quotation omitted); instead, “it depends ... on the economic reality” of the “circumstances of the whole activity,” id. Given the “total work arrangement,” the court determined that the grower, along with the contractors, jointly employed the workers and thus was subject to the FLSA. Id. at 238. In enacting the AWPA, Congress expressly recognized that Griffin & Brand “summarizes the proper approach and the appropriate criteria to be used in making [joint employer] determinations.” See House Report at 4553. We most recently considered agricultural joint employment relationships in Aimable v. Long & Scott Farms, Inc., 20 F.3d 434 (11th Cir.), cert. denied, 513 U.S. 943, 115 S.Ct. 351, 130 L.Ed.2d 306 (1994), which involved claims under both the AWPA and the FLSA. *932 A group of migrant and seasonal agricultural workers sued a farm labor contractor and the grower on whose fields they worked, claiming that the two jointly employed them. Id. at 437. Unlike in Griffin & Brand, virtually all direct supervision of the workers in Aimable was performed by the contractor, who also had the sole power to hire or fire the harvest workers and “exercised absolute, unfettered, and sole control over [the workers] and their employment.” Aimable, 20 F.3d at 440–41. The labor contractor in Aimable also handled all payroll responsibilities, determined the crew's wage rates, and “made significant investments in equipment and facilities.” Id. at 440–43. Under these circumstances, we concluded that the farmworkers were not economically dependent on and therefore were not “employed” by the grower. Id. at 445. C. Determining Joint Employment Status [4] In Aimable, this court recognized at least eight factors that can be analyzed to determine whether a farmworker furnished by a labor contractor was economically dependent on, and therefore jointly employed by, a grower: (1) the nature and degree of the grower's control of the farmworkers; (2) the degree of the grower's supervision, direct or indirect, of the farmworkers' work; (3) the grower's right, directly or indirectly, to hire, fire, or modify the farmworkers' employment conditions; (4) the grower's power to determine the workers' pay rates or methods of payment; (5) the grower's preparation of payroll and payment of the workers' wages; (6) the grower's ownership of the facilities where the work occurred; (7) the farmworkers' performance of a line- job integral to the harvesting and production of salable vegetables; and (8) the grower's and labor contractor's relative investment in equipment and facilities. Id. at 440– 46. 9 9 The first five factors come from DOL regulations. See supra note 6. The sixth, seventh and eighth factors come from caselaw. See Aimable, 20 F.3d at 443–45. In Aimable, the court acknowledged that three additional factors—the farmworker's opportunity for profit and loss, the permanency and exclusivity of the employment, and the degree of skill required to perform the farmworker's job— ordinarily are relevant only where the question is whether the workers are independent contractors or employees, and not where the question is whether the farmworkers are employed solely by the contractor or jointly by the contractor and the farmer. Id. [5] In applying these factors, we are guided by several principles. First, the question in “joint employment” cases is not whether the worker is more economically dependent on the independent contractor or the grower, with the winner avoiding responsibility as an employer. As the term “joint employment” suggests, the AWPA “envisions situations where a single employee may have the necessary employment relationship with not only one employer but simultaneously such a relationship with an employer and an independent contractor.” House Report at 4553. Thus, rather than comparing the employment relationships in order to exclude one, “[t]he focus of each inquiry ... must be on each employment relationship as it exists between WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 145 of 520 PageID 781 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 the worker and the party asserted to be a joint employer.” Id. at 4553–54. [6] Second, no one factor is determinative. Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at 1477. As we explained in Aimable, the existence of a joint employment relationship depends on “the ‘economic reality’ of all the circumstances.” Aimable, 20 F.3d at 439 (emphasis added); see 29 C.F.R. § 500.20(h)(4)(i) (providing that “determination of whether the employment is to be considered joint employment depends upon all the facts in the particular case”) (emphasis added). [7] Third, the factors are used because they are indicators of economic dependence. See Aimable, 20 F.3d at 439. They are “aids-tools to be used to gauge the degree of dependence of alleged employees on the business to which they are connected. It is dependence that indicates employee status. Each [factor] must be applied with that ultimate notion in mind.” Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308, 1311 (5th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 82, 50 L.Ed.2d 89 (1976). Thus, the weight of each factor depends on the light it sheds on the farmworkers' economic dependence (or lack thereof) on the alleged employer, *933 which in turn depends on the facts of the case, see Aimable, 20 F.3d at 440. [8] Fourth, a joint employment relationship is not determined by a mathematical formula. “[T]he absence of evidence on any one or more of the criteria listed does not preclude a finding that an ... agricultural employer was a joint employer along with the crewleader.” House Report at 4553. The purpose of weighing the factors is not to place each in either the contractor or the grower's column, but to view them qualitatively to assess the evidence of economic dependence, which may point to both. See Usery, 527 F.2d at 1311 (explaining that “the collective answers to all of the inquiries [cannot] produce a resolution which submerges consideration of the dominant factor—economic dependence”). [9] Fifth, in considering a joint-employment relationship, we must not allow common-law concepts of employment to district our focus from economic dependency. See Aimable, 20 F.3d at 439; House Report at 4553. Indeed, the “suffer or permit to work” standard was developed to assign responsibility to businesses that did not directly supervise putative employees. See Rutherford Food Corp., 331 U.S. at 728 & n. 7, 67 S.Ct. at 1476 & n. 7; People ex rel. Price v. Sheffield Farms–Slawson–Decker Co., 225 N.Y. 25, 121 N.E. 474, 476 (1918). Thus, our inquiry looks “not to the common law definitions of [employer and employee] (for instance, to tests measuring the amount of control an ostensible employer exercised over a putative employee), but rather to the ‘economic reality’ of all the circumstances concerning whether the putative employee is economically dependent upon the alleged employer.” Aimable, 20 F.3d at 439. 10 10 Thus, courts have found economic dependence under a multitude of circumstances where the alleged employer exercised little or no control or supervision over the putative employees. See, e.g., Castillo v. Givens, 704 F.2d 181, 184 (5th Cir.) (finding dependence where grower visited farm only three or four times per week), cert. denied, 464 U.S. 850, 104 S.Ct. 160, 78 L.Ed.2d 147 (1983); Usery, 527 F.2d at 1312 (finding dependence where putative employer had “neither the right to hire employees nor the right to set hours”); Fahs, 166 F.2d at 43 (finding dependence where business had no right to control number of employees, wages or hours); Alviso–Medrano v. Harloff, 868 F.Supp. 1367, 1372 (M.D.Fla.1994) (finding employment relationship where no direct oversight by grower). [10] Finally, because the FLSA and AWPA are remedial statutes, we must construe them broadly. See A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945) (recognizing that FLSA must be interpreted broadly to effectuate its “humanitarian and remedial” purpose); Caro–Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1505 (11th Cir.1993) (stating that “[b]road construction of the [AWPA] comports with [its] humanitarian purpose to protect all those hired by middlemen to toil in our nation's fields, vineyards and orchards”) (quotation omitted). D. Application of Factors to this Case [11] With these principles in mind, we turn to the evidence in this case. Although we initially consider the factors separately, we ultimately weigh them collectively and qualitatively to determine whether the pickers, notwithstanding any employment relationship with the contractor, 11 were economically dependent on, and therefore jointly employed by, the growers under the FLSA and AWPA. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 146 of 520 PageID 782 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 11 The parties do not dispute that Turke and Ag–Tech were employers of the farmworkers. 1. Nature and degree of control of workers The first indicator of joint employment status concerns the “nature and degree of [the growers'] control of the workers.” 29 C.F.R. § 500.20(h)(4)(ii)(A). Such control arises when a grower determines, for example, the number of workers hired for a job, when work should begin on a particular day, which workers should be assigned to specific tasks, and whether a worker should be disciplined or retained. Aimable, 20 F.3d at 441. As noted earlier, the suffer or permit to work/economic dependence standard defines employment in a way that does not depend on the common-law understanding of employment, *934 which was based on limiting concepts of control. See id. at 439. Nevertheless, a grower's control of farmworkers does shed some light on economic dependence. The evidence indicates that the growers exercised control over the farmworkers in several ways. First, the growers told Turke how many farmworkers to bring each day. 12 Second, the growers' foremen, rather than Turke, determined the precise moment when picking would commence each day. Third, the growers were free to directly delay or stop the workers from continuing their work. For example, when new immigration laws that required increased worker documentation went into effect, the growers stopped the harvest to verify that Turke and his workers were in compliance with the laws, and they did not allow work to resume until Turke demonstrated their compliance the following day. 13 Finally, the growers had the ability indirectly to assign work to specific workers. During the 1986–87 season, for example, they moved the pickers from one row to another and from one plot to another by assigning their own tomato-picking crews to pick plots and rows that were being picked by the farmworkers. Compare Griffin & Brand, 471 F.2d at 237–38 (finding that farmer exercised a “degree of apparent on-the-job control” over workers by “tell[ing] the crewleaders at what hour to begin work”) with Aimable, 20 F.3d at 440–41 (concluding that contractor had “absolute, unfettered, and sole control” over farmworkers). 12 Turke testified in deposition as follows: Q. And during the '85–'86 harvest season, again isolating on D & S Farms, you learned of the harvest needs through telephone contact from [D & S Farms' manager]? A. Correct. He would call. Q. He would call? A. Right. He would tell me how many rows. He would tell me where the field was and how many people he'd like to have. 13 Turke testified as follows about the incident: A. [O]ne morning I went to the field and I was told that I had to get my pickers out of the field because they had no ID cards. Q. Who told you that? A. This came down from one of the people that worked for both farms. We were picking for both farms that day, I remember that much, and we were stopped and our people were told to leave the field because we didn't have IDs. * * * * * * Q. And you were told by some representative of each of the farms that your crew was to stop working? A. To stop working because they had no ID cards from the South Florida Vegetable Association. Q. And so did your crew, in fact, stop work? A. They did, and they went down there, lined up to try and get ID cards so they could come back and finish the job. In the meantime, I went to my office and brought back a copy of the law that said the ID card was not necessary and they could not force the people to have an ID card, because they wanted to charge the people $7.50, I believe, for the ID cards. And I told [the growers]. I said, “Look,” I said, “I'm making ID cards for free for these guys.” I said, “I'm charging three dollars, but it takes me three dollars just to get an ID card done.” I said, “I'm not trying to make a nickel out of this thing.” I said, “These guys are just in it trying to make some money.” And then I showed them the law and I showed them my card and I showed them the —you know, the documentation that we had behind our cards and, you know, basically the same thing that [the South Florida Vegetable Association representative] had. Now, ours were not as elaborate as his, but they did the job. Q. Right. And so you had this conversation with [the growers]? A. Right, and I showed them the law. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 147 of 520 PageID 783 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 Q. And what did they say after you spoke with them? A. Told me to put my people back to work. 2. Degree of supervision of the work The second factor bearing on joint-employment status is the “degree of supervision [by the grower], direct or indirect, of the work.” 29 C.F.R. § 500.20(h)(4) (ii)(B). Somewhat similar to the previous factor, such supervision includes overseeing the pickers' work and providing direction. Aimable, 20 F.3d at 441. This factor, like the growers' control over the workers, has more to do with common-law employment concepts of control than with economic dependence. Indeed, the “suffer or permit to work” standard was developed in large part to assign responsibility to businesses which did not directly supervise the activities of putative employees. Rutherford Food Corp., 331 U.S. at 728 & n. 7, 67 S.Ct. at 1476 & n. 7; *935 Sheffield Farms–Slawson–Decker Co., 121 N.E. at 476. Nevertheless, a grower's supervision of farmworkers, like a grower's control of them, provides some guidance to our inquiry. In considering this factor, “special aspects of agricultural employment [must] be kept in mind.” House Report at 4554. When unskilled labor is utilized in an agricultural setting, for example, the grower is not expected to look over the shoulder of each farmworker every hour of every day. Thus, “[i]t is well settled that supervision is present whether orders are communicated directly to the laborer or indirectly through the contractor.” Aimable, 20 F.3d at 441 (citing Griffin & Brand, 471 F.2d at 238). In this case the evidence reflects that the growers supervised the pickers in substantial ways. In addition to telling them when picking could begin and distributing the boxes, the growers' field workers directly oversaw and intervened in the pickers' work, both directly and indirectly, on a daily basis. Turke testified to the growers' oversight and direct intervention as follows: Q. And what would these D & S Farms people do? A. They would walk around and make sure the baskets were full, make sure the quality control was there, no trash in the baskets. If there was a problem, they'd bring it to our attention. Q. Did you ever see the D & S Farms employees talk directly to the workers or try to show them what they were doing wrong? A. Yes. Yes. Q. Did that happen very often? A. Day to day. They couldn't hardly be out there without it. Turke also testified that the growers would complain to him “that the job was not going fast enough.” We find this supervision more substantial than the “infrequent assertions of minimal oversight” by the grower in Aimable, 20 F.3d at 441, where the grower's employees, “except on rare occasions, left supervision and oversight of [the farmworkers] entirely to [the contractor] and his crew” and “rarely provided any direction to [the farmworkers'] work,” id. In contrast to this “de minimis” supervision, id., the growers in the present case oversaw and directly intervened in the pickers' work on a daily basis. See Griffin & Brand, 471 F.2d at 238 (finding joint employment where farmer's field supervisors regularly gave instructions to crew leaders who passed them on to workers); Haywood v. Barnes, 109 F.R.D. 568, 590 (E.D.N.C.1986) (finding joint employment based in part on regular supervision). 3. Right to hire, fire, or modify employment conditions The third indicator of joint employment is the growers' “right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers.” 29 C.F.R. § 500.20(h)(4)(ii)(D). In this case, the evidence indicates that the growers had the power to “veto” Turke's hiring decisions and to modify employment conditions such as the hours the pickers worked. For example, the growers themselves monitored the workers' job qualifications rather than relying on Turke to do so when they stopped work until they could verify compliance with the new immigration laws. Additionally, as discussed above, the growers dictated the workers' hours, a condition of employment, by deciding when the work was to begin, by forcing the pickers to stop picking when prices were bad, and, during the '86–'87 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 148 of 520 PageID 784 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 season, by sending their own tomato-picking crews into fields assigned to the farmworkers, causing them to run out of work by noon. Compare Aimable, 20 F.3d at 442 (finding no dependence where grower never dictated hours employees could work) with Griffin & Brand, 471 F.2d at 237 (finding dependence where business decided daily starting times). 4. Power to determine pay rates or methods of payment The next factor is the degree to which the putative employer has the “[p]ower to determine the pay rates or the methods of payments of the workers,” 29 C.F.R. § 500.20(h)(4)(ii)(C). In this case, Turke and the growers agreed to the payment of $3.90 *936 per box. However, pay rate refers not only to the amount of compensation to be paid, but includes benefits such as worker's compensation insurance and social security, as well as how these various payments are allocated. Method of payment refers to the basis upon which a worker is paid, for example, by the hour or by the piece. See Aimable, 20 F.3d at 442; Griffin & Brand, 471 F.2d at 238. The growers' power to exercise some control over the workers' pay in this case is evidenced by their deduction of money from their payments to Turke. First, rather than paying Turke the full $3.90 per box of beans harvested, they deducted 11¢ per box to purchase worker's compensation insurance, decided which insurance to buy, and named themselves as the policy holders. Thus, Turke did not solely and independently establish wage rates and other benefits for the workers. Indeed, Turke could not purchase insurance to cover the workers because he lacked the economic wherewithal; in his own words, “[he] didn't have the money to fork up for workman's comp right then and there.” Thus, the farmworkers were dependent on the growers to obtain financial compensation for job-related injuries. See Fahs, 166 F.2d at 42 (finding dependence where employee covered by business' worker's compensation insurance); Hamilton v. Shell Oil Co., 215 So.2d 21, 22 (Fla. 4th DCA 1968) (holding that “relationship of employer-employee is essential to liability for workmen's compensation benefits”); cf. Griffin & Brand, 471 F.2d at 236 (finding dependence where business deducted social security payments from check given to crew leader). The evidence shows that the growers also deducted money from the negotiated box price to cover social security taxes, giving Turke a separate check for the employer and employees' shares of these taxes. The growers segregated the payments to ensure that Turke properly reported and paid the taxes on the farmworkers' labor. Cf. Griffin & Brand, 471 F.2d at 236 (observing that crew leader was “totally incapable of seeing that social security [wa]s paid in behalf of the harvesting crews”). Like the deduction for worker's compensation insurance, the growers' segregation of the social security payments limited Turke's freedom to allocate the money he received for his services. And just as the workers depended on the growers for worker's compensation coverage, they relied on them to see that the social security payments were made as well. Cf. id. (stating that “[t]he fact that [the business] ... handled the social security contributions for the harvest workers also tend[s] to indicate an employment relationship”). 14 14 After these deductions were made, Turke took his profit and paid the balance to the subcontractors, who deducted their pay and paid the pickers. 5. Preparation of payroll and payment of wages The next factor, which in this case is interrelated to the determination of pay rates, is the putative employer's involvement in the “[p]reparation of payroll and the payment of wages” to the workers. 29 C.F.R. § 500.20(h) (4)(ii)(E). This factor is probative of joint employment because of the likelihood that when a business undertakes to help an independent contractor prepare its payroll and pay its wages, it is likely that the contractor lacks economic substance on which the workers can solely depend. Here, as noted earlier, the growers computed and segregated social security taxes and purchased worker's compensation to cover the workers. These actions certainly do not demonstrate that Turke was a truly independent employer. On the contrary, they indicate another way in which the farmworkers were economically dependent on the growers. See Griffin & Brand, 471 F.2d at 236 (finding dependence where contractors “totally incapable of seeing that social security is paid in behalf of the harvesting crews”). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 149 of 520 PageID 785 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 6. Ownership of facilities where work occurred The first non-regulatory factor indicative of an employment relationship in this case is the putative employer's ownership of the facilities where the work occurred. See Aimable, 20 F.3d at 444; see also Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at 1477; Griffin & Brand, 471 F.2d at 238. This *937 element is probative of joint-employment status for the obvious reason that without the land, the worker might not have work, and because a business that owns or controls the worksite will likely be able to prevent labor law violations, even if it delegates hiring and supervisory responsibilities to labor contractors, see Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 513–14 (5th Cir.1969). We need not dwell on this factor because there is no question that the growers owned the land where all the work was performed. 7. Performance of a line-job integral to business Another non-regulatory indicator of an employment relationship between workers and a grower is the workers' performance of “a line-job integral to the harvesting and production of salable vegetables.” Aimable, 20 F.3d at 444. This factor is probative of joint employment because a worker who performs a routine task that is a normal and integral phase of the grower's production is likely to be dependent on the grower's overall production process. See Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at 1477; Fahs, 166 F.2d at 43–44. The evidence in this case indicates that the pickers performed a routine line-job integral to the growers' business of growing, harvesting and packing snap beans for fresh market sale. Turke and his crew were but one part of an “integrated economic unit” operated by the growers. Because the farmworkers performed a routine task that was a normal and integral part of the growers' bean production process, they were analogous to employees working at a particular position on a larger production line. They were dependent on the growers' overall production process, of which they were one small but indispensable part. See Rutherford Food Corp., 331 U.S. at 729–30, 67 S.Ct. at 1476–77; Fahs, 166 F.2d at 43– 44. 8. Investment in equipment and facilities Finally, one must consider the relative degree of investment in equipment and facilities by the independent contractor on the one hand, and the putative employer on the other. See Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. at 1477; Ricketts v. Vann, 32 F.3d 71, 74 (4th Cir.1994). This factor is probative because of the workers' economic dependence on the person who supplies the equipment or facilities. 15 15 The growers argue that this factor is irrelevant to our inquiry. According to the growers, Aimable held that a disparity between the farmer's and the independent contractor's investment in equipment and facilities is relevant only if the issue is whether the contractor is an independent contractor or an alleged employee. We disagree for two reasons. First, although the Aimable court noted that relative investment helps determine whether workers are employees or independent contractors, Aimable, 20 F.3d at 443, the court stopped short of holding that it never is relevant in joint employment cases. In fact, the court noted that the factor did not aid its joint employment inquiry because both the grower and the labor contractor there had substantial investment in equipment and facilities. See id. (recognizing labor contractor's “significant investments in equipment and facilities,” including trucks, tools and labor camp). Second, the Supreme Court has recognized that this factor is relevant to a worker's dependence on a putative employer. See Rutherford Food Corp., 331 U.S. at 731, 67 S.Ct. at 1477; see also Ricketts, 32 F.3d at 74. We therefore consider it. In this case the growers owned virtually all the equipment and facilities used by the farmworkers: the picking boxes, the lids and wire used to close them, the pallets on which the boxes were placed, and the trucks used to transport the boxes to the packinghouse. Unlike the contractor in Aimable, who “made significant investments in equipment and facilities,” including trucks, tools and a labor camp, Aimable, 20 F.3d at 443, Turke had no equipment or vehicles of his own. Thus, his role was more like that of the contractor in Rutherford Food Corp., who provided no equipment and had no real business organization. Rutherford Food Corp., 331 U.S. at 731, 67 S.Ct. at 1477. Just as the workers in Rutherford Food Corp. could not realistically depend on their crew leaders for other work if the slaughterhouse shut down, id., the farmworkers WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 150 of 520 PageID 786 Antenor v. D & S Farms, 88 F.3d 925 (1996) 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 here could not depend on Turke alone for their economic livelihood. 9. Consideration of All Factors When we consider the preceding factors collectively and qualitatively, we conclude *938 that the evidence before the district court indicated that the farmworkers were jointly employed by Turke and the growers under the AWPA and the FLSA. To be sure, many aspects of the relationship demonstrate that the pickers were economically dependent on Turke. Turke hired and assigned pickers to particular fields; he directly supervised their work; he negotiated the price per box; he fired and disciplined workers; and he paid the workers' wages. At the same time, however, significant aspects of the relationship evidence the pickers' economic dependence on the growers as well. The growers exercised a measure of control in terms of the numbers of pickers needed and the specific hours of work. They exercised a measure of supervision and directly intervened in their work process. They involved themselves in the payroll process and in making provision for social security and workers compensation insurance when the labor contractor was too financially unstable to do so. The growers owned the facilities and controlled the overall production scheme in which the pickers performed an integral line job; and the growers, unlike Turke, had substantial investment in equipment and facilities that were necessary for the pickers' work. The totality of the evidence before the district court at summary judgment demonstrates the economic dependence of the pickers on both Turke and the growers. Such joint economic dependence was expressly contemplated by Congress when it adopted the “joint employer” doctrine as the best means to ensure that the remedial purposes of the AWPA would be fulfilled. Thus, the district court erred in concluding that the farmworkers were not employees of the growers for purposes of the FLSA and the AWPA. IV. CONCLUSION In light of the foregoing, the judgment granting summary judgment to the growers is reversed and the case is remanded for proceedings consistent with this opinion. All Citations 88 F.3d 925, 133 Lab.Cas. P 33,541, 3 Wage & Hour Cas.2d (BNA) 677 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 151 of 520 PageID 787 - - - - -- - --- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 152 of 520 PageID 788 - -- - -- - -- -- -- -- -- -- - -- - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 153 of 520 PageID 789 --- - - - - -- -- -- ---- - --- - -- -- - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 154 of 520 PageID 790 - -- - - - - -- --- -- ---- -- --- - -- - -- - - - --- -- - --- - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 155 of 520 PageID 791 -- -- - - - -- - - -- - -- - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 156 of 520 PageID 792 -- -- - -- -- -- - - - - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 157 of 520 PageID 793 -- -- - -- -- -- -- --- - -- - - -- -- -- -- - --- - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 158 of 520 PageID 794 - - - -- ---- - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 159 of 520 PageID 795 Footnotes 1 Because summary judgment is granted for Defendant Alpha Logistics Services, Inc., use of “Defendant” hereinafter refers to MRC alone, and the terms “MRC” and “Defendant” will be used interchangeably for the remainder of this Order. 2 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 3 Patel v. Wargo, 803 F.2d 632, 634 (11th Cir. 1986). 4 See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992); Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1310-11 (5th Cir. 1976). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. 5 See Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311-12 (11th Cir. 2013). 6 Id. 7 Id. Note these factors are specific to FLSA employee-independent contractor analysis. To distinguish between employees and independent contractors under Florida state law, there is a parallel, but distinct, analysis. See Carlson v. FedEx Ground Package Sys., Inc., 787 F.3d 1313, 1318-19 (11th Cir. 2015) (noting ten factors applied by Florida Supreme Court in employee v. independent contractor analysis). There are also additional factors utilized to assess joint employment under the FLSA, which are not relevant here. 8 Usery, 527 F.2d at 1315 (“Neither contractual recitations nor subjective intent can mandate the outcome in [FLSA] cases.”) (internal citations omitted). 9 Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740 (1981) (“FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative policies it was designed to effectuate.”) (internal citations omitted). 10 E.g. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996); Aimable v. Long & Scott Farms, 20 F.3d 434, 439 (11th Cir. 1994). 11 See Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 667 (5th Cir. 1983) (finding workers characterized as self- employed on tax returns FLSA employees); Quezada v. Sante Shipping Lines, Inc., 2013 WL 1334516, at *12 (S.D. Fla. 2013) (finding worker who was paid via 1099 rather than W2 at workers request to be employee for FLSA purposes) (emphasis added). 12 Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988) (“[A]n employer’s self-serving label of workers as independent contractors is not controlling.”); Yilmaz v. Mann, 2014 WL 1018006, at *4 (S.D. Fla. 2014) (“The parties' subjective beliefs and expectations, as well as the labels they place on their relationship, are immaterial.”). 13 See Scantland, 721 F.3d at 1316. 14 Id. 15 Artola testified that he began to work for MRC in April 2010. MRC contends Artola was hired in April 2011. Because the relevant statute of limitations extends no more than three years from the date of filing suit, this dispute is immaterial for the purposes of this motion. It is interesting, however, that the parties cannot agree on this seemingly obvious point of fact. 16 Artola owns a 2005 Dodge Sprinter van used principally for his delivery work. 17 There is a dispute about the extent to which drivers could increase or decrease the stops they were given, but the record appears uncontested as to, roughly, how the stops were originally allocated. The list of stops, or deliveries, for a given shift did not originate with the driver. H.D. Smith gave MRC the list of customers expecting deliveries and their customers' delivery time windows. (Howard dep. 12:23-13:11.) MRC’s logistics system would then compile a list of customers requiring deliveries during a given shift within a given geographical area. (Id. 12:23-13:11; Brioso dep. 17:17-24.) At the beginning of each shift, that list was provided to the driver covering that geographical area. (Brioso - - - - - -- -- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 160 of 520 PageID 796 dep. 11:10-12:5; Artola dep. 126:1-9; Sample Manifests.) The record fails to elucidate how the drivers' geographical assignment was determined or negotiated. 18 Artola testified that his break or lunch times were not specified by MRC, but that he always ate lunch while driving and had at most twenty minutes of break time daily. (Artola dep. 50:11-51:4). 19 Hence, overtime was not calculated or compensated. 20 Artola testified that his MRC schedule did not leave him any time to work for other companies. (Pl. dep. 129:17-24.) 21 Artola agrees he signed at least one contract, but says he was not given time to review it and denies that the contract in the record is the one that he signed. (Pl. dep. 135:18-136:14.) Even though only the April 2011 contract is in the record, the record suggests there were subsequent contracts between Artola and MRC. (R. Artola dep. 39:7-16; Brioso dep. 33:12-16.) 22 “ABC” is another pharmaceutical delivery customer of MRC. The record is silent as to why this company is listed on the contract; all other evidence suggests Artola only worked at H.D. Smith. 23 Pl. dep. 54:11-25; 140:22-141:7. 24 Brioso dep. 17:14-18:4; Bethencourt dep. 33:7-34:7. 25 Pl. dep. 126:10-25. 26 Bethencourt dep. 86:6-12. 27 Howard dep. 53:13-54:23. 28 Brioso dep. 10:23-11:7. 29 Aff. of Yosvani Alonso, ¶14. 30 Despite the apparently pivotal role Bueno served in the instant controversy, neither party deposed him, nor provided his affidavit. 31 Brioso dep. 9:3-18. 32 Howard dep. 24:6-25:2. 33 Pl. dep. 35:2-4. 34 Pl. dep. 46:8-23. 35 Brioso dep. 13:22-14:13. 36 Id. at 15:8-11; Bethencourt dep. 35:19-21. Manifests filed as exhibits undermine both Artola and MRC contentions regarding deliveries after 5 p.m., in that some reflect delivery times between 5 p.m. and 6 p.m. 37 This allegation, if found credible, is additionally relevant to overtime liability. See Bailey v. TitleMax of Georgia, Inc., 776 F.3d 797, 801 (11th Cir. 2015) (“Knowledge [of unpaid overtime work] may be imputed to the employer when its supervisors or management ‘encourage [ ] artificially low reporting’.”) (internal citations omitted). 38 Pl. dep. 130:6-14; 142:16-19. 39 R. Artola dep. 54:20-55:25. 40 July 20, 2015 Aff. of Rebeca Artola, 14-10. 41 Brioso dep. 18:18-21. 42 Scantland, 721 F.3d at 1317 (describing ability of plaintiff-workers to increase profits by hiring help as “illusory” where, despite contract language to the contrary, helpers were actually managed by – and contracted with – the defendant- employer). 43 Pl. dep. 43:13-17. 44 Aff. of Yosvani Alonso, ¶ 3. 45 Pl. dep. 144:10-12. 46 Id. 144:4-12. 47 Id. 149:17-151:14. 48 Scantland, 721 F.3d at 1312. 49 Id. 50 Usery, 527 F.2d at 1312-13. 51 Contractor Purchased Transportation Agreement, ¶ 5(b). 52 See Olson v. Star Lift Inc., 709 F. Supp. 2d 1351, 1356 (S.D. Fla. 2010) (noting fact that employer controlled client to which worker was assigned weighed toward employee status). 53 Herman v. Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 299, 303 (5th Cir. 1998) (distinguishing between employee-drivers and contract-drivers in part by their ability to reject deliveries). -- -- -- - - --- - - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 161 of 520 PageID 797 54 Id. at 302 (noting that employee-drivers has a set start time, whereas contract-drivers did not); Star Lift, 709 F. Supp. 2d at 1356 (noting fact that employer controlled what time worker went to work weighed toward employee status). 55 Scantland, 721 F.3d at 1312 (quoting Mednicj v. Albert Enters., Inc., 508 F.2d 297, 301-02 (5th Cir. 1975)). 56 See Rutherford Food Corp. v. McComb, 331 U.S. 722, 729-30 (1947); Scantland, 721 F.3d at 1317. 57 Scantland, 721 F.3d at 1317. 58 See Scantland, 721 F.3d at 1316-17 (finding ability of workers to increase profits by trading or completing extra jobs not meaningful opportunity where it was limited by factors controlled by employer, such as the number of jobs assigned and the work schedule). 59 Id. at 1317 (describing ability of workers to increase profits by hiring help as “illusory” where, despite contract language to the contrary, helpers were actually managed by employer). 60 The record is silent as to what MRC was paid per stop at H.D. Smith, and as to whether drivers knew what MRC was paid when drivers allegedly negotiated their own rate per stop. See id. at 1313 n.4,1317 (noting workers inability to negotiate rates and inability to influence employer/worker split as to pay per stop undermined worker opportunity for profit or loss and weighed toward employee status). 61 See Usery, 527 F.2d at 1313-14. 62 Keller v. Miri Microsystems LLC, 781 F.3d 799, 810 (6th Cir. 2015). 63 See Dole v. Snell, 875 F.2d 802, 810 (10th Cir. 1989). 64 See Usery, 527 F.2d at 1313 (“The lease requirement-which the record does not show was ever subject to negotiation- that the operators accept responsibility for bad-check and theft losses does not show independence. Rather it shows that [the employer] chose to place this added burden on its [workers].”) 65 See Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 667 (5th Cir. 1983) (finding self-employed designation on tax returns and requiring workers to provide own insurance does not tip the balance in favor of independent contractor status where economic reality indicates employee economically dependent on employer); Star Lift, 709 F. Supp. 2d at 1356 (worker’s receipt of 1099 from employer does not weigh in favor of independent contractor status). 66 E.g., Miri Microsystems, 781 F.3d at 810; Express Sixty-Minutes, 161 F.3d at 303; Sakacsi v. Quicksilver Delivery Sys., Inc., 2007 WL 4218984, at *6 (M.D. Fla. 2007). 67 Usery, 527 F.2d at 1314. 68 Express Sixty-Minutes, 161 F.3d at 305; Molina v. South Florida Exp. Bankserv, Inc., 420 F. Supp. 2d 1276 (M.D. Fla 2006). 69 Villarreal v. Samaripa Oilfield Servs., LLC, No. 4:13-CV-02662, 2014 WL 7405206, at *2 (S.D. Tex. 2014) (finding manual laborers and drivers possessed no particular special skill). 70 See Usery, 527 F.2d at 1314 (“Minor record-keeping such as personal tax records is not determinative of independent status.”). 71 See Miri Microsystems, 781 F.3d at 807-08. 72 See Donovan v. Dial America Marketing Inc., 757 F.2d 1376,1384-85 (3rd Cir. 1985) (noting fact that workers worked continuously for employer indicates workers were employees); Solis v. Velocity Exp., Inc., 2010 WL 3259917, at *9 (D. Or. 2010) (noting if drivers' contracts were indefinite, and routinely renewed, that fact would favor employee status). 73 See Hopkins v. Cornerstone Am., 545 F.3d 338, 345-46 (5th Cir. 2008) (contrasting plaintiffs found to be employees and independent contractors, each with “at-will” contract terms, noting preeminence of “economic reality” analysis). 74 See Solis v. Cascom, Inc., 2011 WL 10501391 at * 6 (S.D. Ohio 2011) (workers who “worked until they quit or were terminated” had relationship “similar to an at-will employment arrangement”). 75 Express Sixty-Minutes, 161 F.3d at 305; South Florida Express, 420 F.Supp. 2d at 1287. 76 Scantland, 721 F.3d at 1317 (noting uncontroverted worker allegation that employer schedule effectively prohibited all workers from exercising right to work for other companies weighed toward employee status for control, opportunity for profit, and permanence factors). 77 See Miri Microsystems, 781 F.3d at 808-09 (finding material dispute as to exclusivity of working relationship where employer said worker could work for other companies but worker claimed his schedule left no time to work for other companies). 78 Scantland, 721 F.3d at 1319 (noting where service provided by workers is admittedly the “backbone” of a business, the employer is unlikely to relinquish sufficient control over business for workers to truly act as independent contractors). - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 162 of 520 PageID 798 79 See Quicksilver Delivery Sys., 2007 WL 4218984, at *8 (finding delivery driver services integral to courier delivery company); South Florida Express, 420 F.Supp. 2d at 1287 (finding parties could not reasonably dispute integral nature of courier service for courier company). End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 163 of 520 PageID 799 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Blue Flag – Appeal Notification Appeal Filed by KRIS BATTLE, ET AL v. DIRECTV, INC., ET AL, 11th Cir., October 10, 2017 2017 WL 4076205 United States District Court, N.D. Alabama, Southern Division. Kris BATTLE, et al., Plaintiffs, v. DIRECTV, L.L.C., Defendant. Civil Action Number 2:14-cv-02007-AKK | Signed 09/14/2017 Attorneys and Law Firms Jesse B. Hearin, III, Hearin LLC, Slidell, LA, Crystal R. Cook, Daniel M. Shaw, George A. Hanson, James Vaglio, Lauren E. Luhrs, Stueve Siegel Hanson LLP, Kansas City, MO, Ryan D. O'Dell, Stueve Siegel Hanson LLP, San Diego, CA, Todd C. Werts, Lear Werts LLP, Columbia, MO, for Plaintiffs. Erin E. Pelleteri, Laura Elizabeth Carlisle, Steven F. Griffith, Jr., Baker Donelson Bearman Caldwell & Berkowitz PC, New Orleans, LA, Patricia J. Martin, Jennifer C. Znosko, Littler Mendelson PC, St. Louis, MO, Charles A. Powell, IV, Littler Mendelson, PC, Julie Schiff, Rachel E. Kelly, Jenna M. Bedsole, Baker Donelson Bearman Caldwell & Berkowitz PC, Birmingham, AL, for Defendant. MEMORANDUM OPINION ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE *1 Kris Battle, Russell Blakely, Rodney Bridges, Nicholos Butts, Tanner Carden, Douglas Ferren, Robert Field, Randall Hill, Bret Hughes, Earnest Jackson, Tyrone Kelley, Carl Kennedy, Ellon La Mothe, Scott Manzo, Andrew Mitchell, Jose Morales, Ricardo Newman, Jayson Porter, Dusty Prestridge, James Renkl, Kenneth Rogers, Jonathan Summerlin, Mark Yates, Geno Marine, and Austin Carpenter assert claims against DIRECTV, L.L.C. for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Doc. 26-1. Presently before the court are DIRECTV’s four issue-specific motions for summary judgment, docs. 78, 81, 83, 85, 1 which are fully briefed, docs. 79, 82, 84, 86, 94, 95, 96, 99, 104, 105, 106, 107, and ripe for review. For the reasons stated below, the fourth motion is due to be granted, and, as a result, this case is due to be dismissed. 1 The motions are designated as follows: doc. 78 (“Plaintiffs Were Engaged as Independent Contractors”), doc. 81 (“DIRECTV, LLC was not Plaintiffs' Joint Employer”), doc. 83 (“7(i)”), and doc. 85 (“Damages”). I. STANDARD OF REVIEW Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go “beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all justifiable inferences must be drawn in the non-moving party’s favor). Any factual dispute will be resolved in the non-moving party’s favor when sufficient competent evidence supports that party’s version of the disputed facts. But see Pace v. Capobianco, 238 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party’s favor when that party’s version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 164 of 520 PageID 800 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that a jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). II. FACTUAL BACKGROUND 2 2 DIRECTV’s motion to strike the declaration of Roy Lingley or, alternatively, to reopen discovery and extend the dispositive motion deadline, doc. 73, is DENIED AS MOOT, as it is not part of the evidence that the Plaintiffs have submitted in support of their opposition to summary judgment. *2 DIRECTV provides satellite television services and “sells its services on a subscription basis, necessitating the installation of equipment in its customers' homes to establish a connection to the DIRECTV network.” Doc. 79 at 9. DIRECTV maintains a W2 technician work force and also contracts with various subcontracting companies, which provide purported independent contractor technicians. Id. The Plaintiffs were engaged by subcontracting companies to perform DIRECTV installation and related work. Id. DIRECTV, the subcontracting companies, and technicians coordinated the scheduling of work orders through a program known as Siebel, which “runs a script that pairs available technicians based on their ‘technician profile’ ... with available customer requests for work.” Id. at 15-16. 3 3 The court will recite additional facts, where relevant, in discussing the various summary judgment motions. III. ANALYSIS DIRECTV argues that it is due summary judgment for four independent reasons: (1) the Plaintiffs are independent contractors; (2) even if the Plaintiffs are employees, DIRECTV is not their joint employer; (3) even if the Plaintiffs are employees, DIRECTV is not liable based on the § 7(i) exemption; and (4) the Plaintiffs failed to present sufficient evidence of their damages. The court examines these arguments separately below. A. Plaintiff’s Alleged Independent Contractor Status DIRECTV first seeks summary judgment on the basis that the Plaintiffs are independent contractors, doc. 79, who do not qualify as “employees” under the FLSA, Freund v. Hi-Tech Satellite, Inc., 185 Fed.Appx. 782, 782 (11th Cir. 2006). 4 In distinguishing between employees and independent contractors, the salient question is whether a worker is “dependent upon the business to which [he] render[s] service” as a “matter of economic reality.” Bartels v. Birmingham, 332 U.S. 126, 130 (1947). Thus, economic reality, rather than any label placed on the relationship by the parties, controls. Several factors guide the inquiry into the economic reality of the parties' relationship: 1. [T]he nature and degree of the alleged employer’s control as to the manner in which the work is to be performed; 2. [T]he alleged employee’s opportunity for profit or loss depending upon his managerial skill; 3. [T]he alleged employee’s investment in equipment or materials required for his task, or his employment of workers; 4. [W]hether the service rendered requires a special skill; 5. [T]he degree of permanency and duration of the working relationship; 6. [T]he extent to which the service rendered is an integral part of the alleged employer’s business. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1312 (11th Cir. 2013). “No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor— economic dependence.” Usery, 527 F.2d at 1311 (citing Mednick v. Albert Enters., Inc., 508 F.2d 297 (5th Cir. 1975)). In other words, “[t]he purpose of weighing the factors is ... to view them qualitatively to assess the evidence of economic dependence.” Antenor v. D & S Farms, 88 F.3d 925, 933 (11th Cir. 1996). The ultimate determination of an individual’s employment status is a question of law. Id. at 929. “Subsidiary findings are considered issues of fact.” Freund, 185 Fed.Appx. at 783 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 165 of 520 PageID 801 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 (citing Patel v. Wargo, 803 F.2d 632, 634 n.1 (11th Cir. 1986)). 4 An “employee” is “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). To “employ” is defined broadly as “to suffer or permit to work.” 29 U.S.C. § 203(g). “Given the remedial purposes of the legislation, an expansive definition of employee has been adopted.” Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 1976). However, “independent contractors” are not protected. See Freund, 185 Fed.Appx. at 782. *3 As noted by the court in Lang v. DirecTV, Inc., 801 F. Supp. 2d 532, 536 (E.D. La. 2011), courts have reached mixed results about whether satellite and cable installers are employees or independent contractors under the FLSA. Generally, courts have decided this issue after a trial. In this circuit in particular, most district courts that have faced this issue have found that a factual determination was necessary to properly assess the Scantland factors. See Freund, 185 Fed.Appx. at 782 (upholding decision of trial court after bench trial that plaintiff was an independent contractor); Parrilla v. Allcom Constr. & Installation Servs., LLC, No. 6:08– cv–1967–Orl–3GJK, 2009 WL 2868432 (M.D. Fla. Aug. 31, 2009) (holding after bench trial that plaintiff was an employee); Santelices v. Cable Wiring, 147 F. Supp. 2d 1313 (S.D. Fla. 2001) (finding genuine issues of material fact as to plaintiff's employment status). 1. Control In a nutshell, DIRECTV contends that its control over the Plaintiffs' work is analogous to that in Roslov v. DirecTV Inc., which held that “DIRECTV’s installation standards and uniform requirements ... are entirely consistent with the standard role of a contractor who is hired to perform highly technical duties,” and that installers were independent contractors rather than employees. Doc. 79 at 25 (quoting 218 F. Supp. 3d 965, 974 (E.D. Ark. 2016) (internal quotation marks omitted)). Specifically, DIRECTV alleges that the Plaintiffs “negotiated the terms of their engagement directly with a subcontractor representative,” doc. 79 at 24, spent the “vast majority of their time” working “unsupervised,” id. at 25, “were responsible for determining the manner and method by which the work orders would be performed,” id., established their own availabilities, id. at 26, and that, “once assigned a work order, [the Plaintiffs] retained a significant degree of flexibility and autonomy over their own schedules,” including “decid[ing] which jobs to perform first,” id. at 27. The Plaintiffs allege that DIRECTV controlled work hours, the length of the work week, requests for time off, and the types of work assigned to technicians, doc. 94 at 13-14, 23, 26, and could stop assigning work to an installer in cases of inadequate work or misconduct, doc. 95 at 12 n.30, 16 at n.48. It “dictat[ed] the manner and method of [installers'] work,” including how to conduct the installation and “what words to use when talking to the customer,” through the Standard Professional Installation Guide, from which installers were not allowed to deviate, and prohibited subcontractor technicians from performing cable installations for other companies not affiliated with DIRECTV. Doc. 94 at 11, 16-17, 24-25; see doc. 98-30 at 13, 15-16. Finally, DIRECTV dictated the clothing, grooming, and appearance of technicians, “including hair color, the number and location of body piercings and the visibility of tattoos.” Doc. 94 at 14. Taking these facts as true, as it must at this juncture of the case, the court finds that they weigh against a finding, as a matter of law, that the Plaintiffs were independent contractors. 2. Opportunity for Profit or Loss The court also considers the “alleged employee’s opportunity for profit or loss depending on his managerial skill.” Scantland, 721 F.3d at 1312. Managerial skills include “control over price and choice of work location, advertising, and services provided.” Ingram v. Passmore, 175 F. Supp. 3d 1328, 1336 (N.D. Ala. 2016) (citations omitted). According to DIRECTV, “[o]nce certified, Plaintiffs became their own independent businesses, free to use their skills as they pleased and realize profits through their business decisions.” Doc. 79 at 28. Allegedly, installers made daily decisions that could impact their opportunity for profit or loss, including “their selection of materials, their control over overhead expenses, their performance of work with other entities, and their decisions regarding with which companies they would contract,” doc. 106 at 8, their daily routes, the speed with which they completed work orders, their negotiation for the performance of WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 166 of 520 PageID 802 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 custom labor, and their sales of the DIRECTV Protection Plan to customers, doc. 79 at 29-31. *4 The Plaintiffs contend that they “exercised no managerial skill that would translate into profit or loss,” and that DIRECTV, which assigned the work orders, controlled the prices and work locations. Doc. 94 at 27. While the Plaintiffs admit they could earn additional income from performing custom work for customers, they contend that DIRECTV set the rates they could charge for such work. Id. at 15. Moreover, the Plaintiffs contend that their ability to choose their selection of materials and mitigate overhead expenses was limited by DIRECTV’s requirements that they use “only DIRECTV-approved materials,” “drive a vehicle that complied with DIRECTV’s standards,” and purchase uniforms and a vehicle placard from DIRECTV. Id. at 14-15. Again, reviewing the facts in the light most favorable to the Plaintiffs, these facts weigh against a finding, as a matter of law, of independent contractor status. 3. Investment in Equipment and Materials DIRECTV argues that the Plaintiffs “made sizable investments” in “tools, phones, equipment, ladders, and other materials to perform installations, including vehicles and fuel.” Doc. 79 at 31. The Plaintiffs do not dispute this, but contend that their investments should be weighed against those that DIRECTV has made in its distribution network, warehouses, and similar infrastructure. Doc. 94 at 30-31 (citing Parilla, 2009 WL 2868432 at *4). This interpretation of Parilla misses the mark, as it held that the plaintiff “did not make any significant investment in capital or employ others,” not that he did not make significant investments compared to those of the defendant, which the Parilla court did not consider in its analysis of this factor. 2009 WL 2868432 at *4. Accordingly, this factor weighs in favor of finding independent contractor status as a matter of law. 4. Special Skill DIRECTV asserts that, because the Plaintiffs underwent specialized training and required “particular skills” to perform installations, that this factor must weigh in favor of independent contractor status. Doc. 79 at 32-33 (citing Freund, 185 Fed.Appx. at 784; Santelices, 147 F. Supp. 2d at 1320; Roslov, 218 F. Supp. 3d at 975). The Plaintiffs contend that installation work does not require a special skill, citing deposition testimony in which it is described as requiring only “common sense,” “basic skills,” and “general knowledge.” Doc. 94 at 32 n.77 (citing docs. 80-3 at 26, 80-9 at 20, 80-32 at 9). The court is not fully convinced by this contention, because if the Plaintiffs are correct, no need would exist for their services, as the average consumer would be able to install and connect the equipment at issue. Still, because this court must construe the facts in the light most favorable to the Plaintiffs, and testimony would aid the court in evaluating this issue, the court finds this factor weighs against a finding at this juncture that the Plaintiffs are independent contractors. 5. Permanency and Duration The court must also consider the “degree of permanency and duration of the working relationship.” Scantland, 721 F.3d at 1312. DIRECTV contends that the Plaintiffs “were under no prohibition from offering their services to whomever they felt would be most profitable to them,” and were able to change between subcontracting companies without notifying DIRECTV. Doc. 79 at 33. In addition, DIRECTV notes that the Plaintiffs performed other, non-installation work while employed as technicians. Id. at 34. The Plaintiffs dispute the contention that they could offer their services freely, noting that an exclusivity provision of DIRECTV’s agreements with subcontracting companies prohibited them from performing installations for DIRECTV’s competitors. Doc. 94 at 34. The Plaintiffs add that they “worked full-time installing DIRECTV systems” with durations of employment spanning “months, or, more typically, years.” Id. at 33. However, the existence of an exclusivity provision or the fact that the Plaintiffs stayed with DIRECTV for months or years does not mean that the Plaintiffs were prohibited from leaving DIRECTV for another entity if they were so inclined. Accordingly, this factor is, at best, neutral for the Plaintiffs. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 167 of 520 PageID 803 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 6. Integral Part of Alleged Employer’s Business *5 DIRECTV contends that this factor is neutral because the subcontracting companies that engaged the Plaintiffs were not beholden to assign them work, and could terminate the Plaintiffs at will or assign their work to other technicians. Doc. 79 at 34 (citing Roslov, 218 F. Supp. 3d at 975; Likes v. DHL Exp., Inc., No. 208- CV-00428-AKK, 2012 WL 8499732, at *10 (N.D. Ala. Mar. 7, 2012)). However, in Likes, this court did not hold that at-will employment status meant that the plaintiffs' work was not integral, but only that this factor was not solely “dispositive of the alleged joint employer status at issue here.” Likes, 2012 WL 8499732 at *10. DIRECTV’s reliance on Roslov similarly misses the mark, as it held only that this factor alone could not tip the scales of the overall analysis. Roslov, 218 F. Supp. 3d at 975 (internal citations omitted). In contrast, the Plaintiffs have presented evidence to support their contention that their work is integral to DIRECTV’s business, stating that, for example, “[t]he installation of [DIRECTV’s] satellite systems [is] required for consumers to receive television service.” Doc. 94 at 17. Indeed, as the Fourth Circuit aptly put it in finding for other technicians on this issue, “absent Plaintiffs' work installing and repairing DIRECTV satellite systems, DIRECTV would be unable to convey its product to consumers.” Hall v. DIRECTV, LLC, 846 F.3d 757, 775 (4th Cir. 2017). Accordingly, this factor weighs against a finding of independent contractor status as a matter of law. 7. Weighing the Factors To sum up, all but one or two of the six Scantland factors weigh against the court finding, as a matter of law, that the Plaintiffs are independent contractors. Based on the record, there are clearly disputes of material fact surrounding many of the factors. Accordingly, DIRECTV’s first motion for summary judgment, doc. 78, is due to be denied. B. DIRECTV’s Alleged Joint Employer Status Next, DIRECTV contends that, even assuming the Plaintiffs are employees of the subcontracting companies, DIRECTV was not their joint employer. Doc. 82. “A single individual may stand in relation of an employee to two or more employers at the same time under the [FLSA] ... since there is nothing in the act which prevents an individual employed by one employer from also entering into an employment relationship with a different employer.” 29 C.F.R. § 791.2(a). If the facts show that an employee is jointly employed, then his work for the entire workweek is considered as one employment under the FLSA. Id. “In this event, all joint employers are responsible, both individually and jointly, for compliance with the applicable provisions of the [FLSA], including overtime provisions, with respect to the entire employment for the particular workweek.” Id. In this circuit, the “economics realities” test is utilized to analyze “the relationship between the plaintiff and the putative employer ... to determine whether the surrounding circumstances show that the plaintiff is economically dependent on the putative employer.” Tafalla v. All Florida Dialysis Services, Inc., No. 07-80396, 2009 WL 151159 at *5 (S.D. Fla. Jan. 21, 2009); see Aimable v. Long and Scott Farms, 20 F.3d 434, 439 (11th Cir. 1994). Economic dependency is contingent on eight factors: (1) the nature and degree of the alleged joint employer’s control over the employees; (2) the degree of supervision over work, either direct or indirect; (3) the alleged joint employer’s right, directly or indirectly, to hire, fire, or modify the employees' employment conditions; (4) the power to determine the employees' pay rates or methods of payment; (5) the alleged joint employer’s preparation of payroll and payment of the employees' wages; (6) the ownership of the facilities where the work occurred; (7) the employees' performance of work integral to the alleged joint employer’s business; and (8) the alleged joint employer’s relative investments in equipment and facilities. Antenor, 88 F.3d at 932; Tafalla, 2009 WL 151159 at *5. *6 No one factor is determinative. Rather, in analyzing the eight factors, “[t]he focus of each inquiry ... must be on each employment relationship as it exists between the [employee] and the party asserted to be a joint employer.” Antenor, 88 F.3d at 932. Furthermore, the weight of each factor depends on the light it sheds on the employee’s economic dependence, or lack thereof, on the alleged employer. Id. “The absence of evidence on any one or WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 168 of 520 PageID 804 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 more of the criteria listed does not preclude a finding that an ... [alleged] employer was a joint employer along with the [actual employer].” Id. at 933. Ultimately, the existence of a joint employment relationship depends on “the ‘economic reality’ of all the circumstances.” Id. at 932. As discussed supra at III.A, disputes of material fact exist concerning control, investment in materials and facilities, and whether the Plaintiffs' work was integral. The court addresses the remaining five factors in turn. 1. Degree of Supervision DIRECTV contends it did not supervise the Plaintiffs. Doc. 82 at 28-29. The Plaintiffs assert that DIRECTV monitored information such as their arrival and departure times, work performance metrics, and customer feedback. Doc. 95 at 8-11. DIRECTV provided the information it collected to subcontracting companies to inform them when technicians were not on time to jobs, id. at 9, to notify subcontracting company supervisors of technicians that failed to meet DIRECTV’s performance metrics, id. at 10, 12, and to discuss removing deficient technicians from performing work, id. at 12. These alleged facts, which the court must accept as true, weigh against finding as a matter of law that DIRECTV did not exercise a sufficient degree of supervision to qualify as a joint employer. 2. Right to Hire, Fire, or Modify Conditions of Employment DIRECTV asserts that only the subcontracting companies had the right to hire or fire Plaintiffs, or to modify the conditions of their employment. Doc. 82 at 29-30. The Plaintiffs contend that DIRECTV retained the right to terminate the subcontractor status of technicians at its sole discretion. Doc. 95 at 15 (citing doc. 80-118 at 27). The Plaintiffs also note that DIRECTV could stop routing any work orders to an individual technician, either at its own discretion or by making recommendations to subcontracting companies. Doc. 95 at 16. Accordingly, these disputed facts also preclude a finding, as a matter of law, that DIRECTV had no involvement in the modification of the conditions of the Plaintiffs' employment. 3. Determination of Pay Rates or Methods of Payment DIRECTV contends that the subcontracting companies determined how and how much to pay the Plaintiffs. Doc. 82 at 31. The Plaintiffs contend that, because DIRECTV set the rates at which it paid subcontracting companies under a piece rate pay system and issued chargebacks to subcontracting companies for poor performance by technicians, it had the practical effect of controlling the Plaintiffs' pay rates. Doc. 95 at 13-15. This argument is unavailing. See Tafalla, 2009 WL 151159 at *7 (noting that a hospital does not control subcontractor’s pay merely because the contractor’s decision to compensate subcontractor might be influenced by hospital’s compensation scheme); Roslov, 218 F. Supp. 3d at 947 (holding that DIRECTV’s payment of subcontracting company was “no different than any other contractor relationship, which is not the control contemplated by the FLSA”). Accordingly, this factor weighs against finding joint employment. 4. Preparation of Payroll and Payment of Wages DIRECTV contends that the Plaintiffs were paid by the subcontracting companies, and that it did not maintain or prepare payroll records for subcontracting technicians. Doc. 82 at 33-34. The Plaintiffs argue that the subcontracting companies paid them based on when work order items were closed on Siebel, doc. 95 at 17, but cite no authority to support the proposition that this is equivalent to DIRECTV preparing their payrolls directly. Accordingly, this factor weighs against finding joint employment. 5. Ownership of Facilities Where Work Occurred *7 DIRECTV argues that the Plaintiffs' worksites are their vehicles, which they provided themselves. Doc. 82 at 34. Moreover, the Plaintiffs retrieved any additional equipment necessary from facilities owned by subcontracting companies, not DIRECTV, and only went to DIRECTV-owned offices “irregularly.” Id. The Plaintiffs contend that their worksites are not their vehicles, but the homes of DIRECTV’s customers. Doc. 95 at 17. They make much of the fact that DIRECTV owns Siebel and the equipment being installed, id. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 169 of 520 PageID 805 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 at 17-18, but these are not the facilities where work occurred. Moreover, by the Plaintiffs' own admission, equipment was “typically” picked up from DIRECTV by the managers of subcontractor companies, and only “sometimes” picked up directly by the Plaintiffs. Id. at 18. Accordingly, this factor weighs against finding joint employment. 6. Balancing the Factors Making a determination of joint employer status would require this court to decide the disputed issues of fact described above, which it is, of course, prohibited from doing on a motion for summary judgment. Accordingly, the second motion for summary judgment, doc. 81, is also due to be denied. C. Alleged Qualification for the § 7(i) Exemption DIRECTV argues next that, even if the court finds against it on the employer issue, it is due to prevail under the 29 U.S.C. § 207(i) exemption of the FLSA, which provides that: No employer shall be deemed to have violated [the overtime provisions of the Act] by employing any employee of a retail or service establishment for a workweek in excess of [40 hours], if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half of his compensation for a representative period (not less than one month) represents commissions on goods or services. 29 U.S.C. § 207(i). “[T]he employer ... bears the burden of proving the applicability of a FLSA exception by clear and affirmative evidence.” Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir. 2001) (internal quotation marks omitted). 1. Retail or Service Establishment In order to meet the definition of a retail or service establishment, DIRECTV must show (1) that it is an establishment in an industry that has a “retail concept,” 29 C.F.R. § 779.316, (2) that 75% of its annual dollar volume comes from sales of goods or services recognized as retail in nature in that particular industry, 29 C.F.R. § 322, and (3) that 75% of its annual dollar volume comes from sales of goods or services not for resale, 29 C.F.R. § 779.411. The Plaintiffs dispute the second and third factors, arguing that DIRECTV’s evidence of its annual dollar volume is insufficient because it concerns DIRECTV’s enterprise as a whole, not the revenue generated by DIRECTV’s installation technicians in particular. Doc. 96 at 23 (citing Brennan v. Yellowstone Park Lines, Inc., 478 F.2d 285, 289-90 (10th Cir. 1973)). However, the Plaintiffs' reliance is misplaced, as Brennan dealt with a number of businesses of different types, such as hotels and restaurants, “located at widely separated places,” 478 F.2d at 287, not the various subdivisions of a nationally-based company. Additionally, the Plaintiffs contend that the testimony of “the highest ranking officers of two of DIRECTV’s Home Services Providers” that they did not consider their work to be retail in nature creates a factual dispute over whether installation services are regarded as retail services within the industry. Doc. 96 at 24. However, the witnesses testified only about their own businesses, which creates no dispute as to DIRECTV’s retail status. See Arnold v. DirecTV, LLC, No. 4:10-CV-352 JAR, 2017 WL 1196428 at *9 (E.D. Mo. Mar. 31, 2017). Accordingly, the court finds, as a matter of law, that DIRECTV is a retail or service establishment. 2. Regular Rate of Pay in Excess of One and One-Half Times Minimum Wage *8 DIRECTV contends that, in the absence of a detailed record of the Plaintiffs' weekly working hours, the testimony of the Plaintiffs as to their hours is sufficient to establish that they were paid more than one and one- half times the applicable minimum wage. Doc. 84 at 23-24 (citing Kuntsmann v. Aaron Rents, Inc., 903 F. Supp. 2d WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 170 of 520 PageID 806 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 1258 (N.D. Ala. 2012)). The court agrees, and is not convinced by the Plaintiffs' contention that an employer who fails to track its employees' actual weekly hours cannot rely on the employees' testimony to meet this element of the § 7(i) exception. See Doc. 96 at 30 (citing Johnson v. Wave Comm GR LLC, 4 F. Supp. 3d, 423, 445-45 (N.D. N.Y. 2014)). Next, the Plaintiffs argue that chargebacks and other unreimbursed business expenses reduced their net pay below one and one-half times the minimum wage. Doc. 96 at 30-31. However, the Plaintiffs cite no authority that supports applying this proposition in the § 7(i) context. Accordingly, based on this record, the court finds, as a matter of law, that the Plaintiffs were paid more than one and one-half times the minimum wage. 3. Commissions The final factor considers whether the employees received more than half of their pay from commissions. DIRECTV contends that the piece rate payment method used to pay the Plaintiffs is analogous to the “flag hours” that the Eleventh Circuit held to constitute commissions in Klindinst v. Swift Investments, Inc. Doc. 84 at 18-20 (citing 260 F.3d 1251, 1254, 1256 (11th Cir. 2001)). As further evidence that the Plaintiffs' pay constitutes commissions, DIRECTV notes that the Plaintiffs could earn additional pay for a work order if they installed multiple satellite receivers, performed custom work, or sold the DIRECTV Protection Plan. Doc. 84 at 20-21. “[T]o constitute a commission under 29 U.S.C. § 207(i), the employer must establish some proportionality between the compensation to the employees and the amount charged to the customer.” Wilks v. Pep Boys, 278 Fed.Appx. 488, 489 (6th Cir. 2008). Here, customers pay nothing for the satellite cable installation the Plaintiffs perform. Doc. 96 at 28. While DIRECTV contends that the requisite proportionality is established by the fact that “the installation is one step in the retail transaction of selling DIRECTV services and is offset by the revenue DIRECTV receives for monthly subscriptions and other fees paid by the customer,” doc. 104 at 7-8, this is insufficient to meet its burden of showing proportionality by clear and affirmative evidence to meet this prong of the test. Accordingly, the court cannot find, as a matter of law, that DIRECTV qualifies for the § 7(i) exemption. As a result, the third motion for summary judgment, doc. 83, is also due to be denied. D. The Plaintiffs Have Failed to Produce Sufficient Evidence to Support Their Damages Finally, DIRECTV argues that it is entitled to summary judgment due to the Plaintiffs' failure to produce competent evidence of their damages or show that DIRECTV had knowledge of their alleged unpaid work. 5 Doc. 86. The court agrees. 5 DIRECTV alternatively argues that the Plaintiffs' claims should be limited to the two year statute of limitations because they cannot establish a willful violation of the FLSA. Doc. 86 at 28-30. As the court finds the issue of damages sufficient to resolve this motion, it need not consider willfulness. 1. Plaintiffs' Burden of Proof on Damages To meet their burden of proof with regard to damages, the Plaintiffs must “prove[ ] that [they have] in fact performed work for which [they were] improperly compensated and ... produce[ ] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005) (quoting Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)). “Summary judgment is appropriate where [the Plaintiffs] have no expert witnesses or designated documents providing competent evidence from which a jury could fairly estimate damages.” Weinberg v. Whatcom Cty., 241 F.3d 746, 751 (9th Cir. 2001) (internal citations and quotation marks omitted); see Jackson v. Corr. Corp. of Am., 606 Fed.Appx. 945, 952 (11th Cir. 2015) (upholding summary judgment against plaintiff who failed to meet evidentiary burden on damages in a FLSA case); Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007) (recognizing that, in some circumstances, summary judgment may be appropriate if plaintiffs fail to prove their damages in a FLSA case). *9 The Plaintiffs contend that they have met this burden by “provid[ing] detailed calculation of the range of WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 171 of 520 PageID 807 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 damages [they are] seeking and explaining each step of the math used” to “harmonize[ ] [their] best estimate[s] of the wages [they] received, the hours [they] worked, the number of weeks [they] worked, and incorporate[ ] the impact of chargebacks and unreimbursed business expenses.” Doc. 99 at 6-7. However, this fails to explain the wide-ranging discrepancies between the Plaintiffs' estimations of their own damages across their testimony in Initial Disclosures and Interrogatory Responses, see doc. 86 at 18, 22-23, or the fact that some of the Plaintiffs could not even explain how they came up with their damage numbers, id. at 8-9, 12-13. Perhaps because the Plaintiffs recognize the inadequacy of their submission, they assert that their testimony will be “further corroborated” by “detailed information DIRECTV maintained in its Siebel system” and “their work schedules maintained by DIRECTV.” Doc. 99 at 14. But this contention does not explain why the Plaintiffs, who have the burden on this issue, cannot present the evidence at this juncture, what specific records they will use, or why they failed to designate any experts to testify to the calculation of damages. The court recognizes that “[a]lthough a FLSA plaintiff bears the burden of proving that he or she worked overtime without compensation, ‘[t]he remedial nature of this statute and the great public policy which it embodies ... militate against making that burden an impossible hurdle for the employee.’ ” Allen, 495 F.3d at 1315 (quoting Anderson, 328 U.S. at 687) (some alterations in original). Still, this is not a case where the Plaintiffs are claiming that they cannot make their showing because of some conduct by the employer. See id. at 1315-18. Rather, the Plaintiffs are saying that they will “further corroborate” their contentions at trial. Doc. 99 at 14. But the Plaintiffs cannot meet their evidentiary burden with a bare assertion that they possess evidence that will support their damages claims—they must actually show the documents or identify the expert witnesses that will allow the jury to reasonably calculate their damages. As this court wrote recently in another case, Ultimately, [the Plaintiffs] bear[ ] the burden of proving that [they] worked overtime without compensation. See Reich, 28 F.3d at 1081. Simply stating that a review of the timesheets at a later date will show the claimed overtime hours is insufficient for [the Plaintiffs] to meet [their] burden. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)) (“[M]ere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.”). While the FLSA is not intended to “penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work,” the employee must still “prove[ ] that he has in fact performed work for which he was improperly compensated and ... produce[ ] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). Mooren v. Sys. Studies & Simulation, Inc., No. 5:12- CV-00230-AKK, 2017 WL 3581727 at *7 (N.D. Ala. Aug. 18, 2017). Indeed, as the Supreme Court has made clear, “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. *10 The Plaintiffs have failed to make a sufficient showing here. In fact, the only actual evidence in support of their damages that the Plaintiffs have put forward, i.e. the sworn declaration of Crystal Cook, one of the attorneys representing them, doc. 98-7, is inadmissible. Cook states that she has “personal knowledge” based on “a series of Microsoft Excel spreadsheets” of information from Siebel that DIRECTV produced, which “staff members in [her] firm” summarized using a methodology that “[o]ne of DIRECTV’s management witnesses” described. Id. at 1-2, 6-7. “[W]hen an attorney makes statements under penalty of perjury in an affidavit or an affirmation, the statements do constitute part of the evidentiary record.” Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009). However, “[d]eclarations by attorneys are sufficient [to satisfy Rule 56(c)(4) ] only if the facts stated are matters of which the attorney has knowledge, such as matters occurring during the course of the lawsuit, such as authenticity of a deposition transcript.” Clark v. Cty. of Tulare, 755 F. Supp. 2d 1075, 1084 (E.D. Cal. 2010). For example, in Estremera v. U.S., the Seventh Circuit found an attorney affidavit lacked a basis in personal knowledge where it “was based on the attorney’s review of the relevant documents and his interviews with witnesses who had personal knowledge.” 442 F.3d 580, 584 (7th Cir. 2006). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 172 of 520 PageID 808 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 “Secondhand knowledge acquired in this way cannot, without more, establish that material facts are in dispute.” Id. Similarly, Cook’s declaration is, by her own admission, based solely on review of case documents and the deposition testimony of a single witness. Doc. 98-7 at 1-2, 6-7. Moreover, Cook does not even claim to have personally reviewed the relevant documents, but rather relied on summaries of those documents that others prepared. Id. at 2. Thus, based on the contents of her own declaration, it lacks the basis in personal knowledge necessary to satisfy Rule 56(c)(4) or Rule 56(e). Alternatively, even if Cook’s declaration was based on personal knowledge, the court cannot consider her testimony because the Plaintiffs failed to disclose Cook as a witness in violation of Rules 26(a)(1)(A) and 26(e). Doc. 105 at 3 n.1. Rule 37(c)(1) requires that the court preclude the Plaintiffs from using the declaration to supply evidence on this motion “unless the failure was substantially justified or is harmless.” See Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1250 (10th Cir. 2013) (citations and quotation marks omitted); Salgado v. General Motors Corp., 150 F.3d 755, 742 (7th Cir. 1998) (“[T]he district court acted well within its discretion when it decided to impose the sanction of precluding the witness from testifying ... [because] the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.”). The Plaintiffs have provided no justification for this omission, let alone a substantial one. To sum up, the Plaintiffs have failed to produce sufficient evidence from which a jury could draw a just and reasonable inference as to the amount and extent of their damages. For this reason alone, DIRECTV’s motion for summary judgment is due to be granted. 2. Whether DIRECTV Knew or Should Have Known the Plaintiffs Were Performing Overtime Work Even if the Plaintiffs had provided competent evidence of their damages, to prevail, the Plaintiffs must also show that DIRECTV “knew or should have known of their overtime work.” Allen, 495 F.3d at 1314-15. “In reviewing the extent of an employer’s awareness, a court ‘need only inquire whether the circumstances ...’ were such that the employer either had knowledge [of overtime hours being worked] or else had ‘the opportunity through reasonable diligence to acquire knowledge.’ ” Reich v. Dep't of Conservation & Nat. Res., State of Ala., 28 F.3d 1076, 1082 (11th Cir. 1994) (quoting Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir. 1969)) (alterations in original). *11 By the Plaintiffs own admission, they never informed DIRECTV of their wages or complained of unpaid overtime. Docs. 80-3 at 40, 80-4 at 51, 80-11 at 33, 80-13 at 24, 80-18 at 32, 80-30 at 27, 29, 80-35 at 62. Instead, they contend that DIRECTV had constructive knowledge for two reasons. First, they allege that the records of work orders in Siebel establish DIRECTV’s constructive knowledge of the Plaintiffs' unpaid overtime. Doc. 99 at 18-19. However, as DIRECTV points out —and the Plaintiffs do not challenge—Siebel “does not record the actual time worked by technicians, and does not always reflect the actual identity of the technician servicing an order or the status of that order.” Doc. 86 at 25. 6 It is unrefuted that Siebel is not a timekeeping system, and that its logs of work orders “[are] not an accurate representation of which technicians actually performed which work orders and provide[ ] no information regarding the actu[al] time worked by any technician.” Id. at 25-26. 7 Where, as here, the Plaintiffs do not dispute these contentions, imputing constructive knowledge to DIRECTV on the basis of Siebel’s demonstrably inaccurate records would go far beyond this circuit’s requirements of reasonable diligence. See Reich, 28 F.3d at 1082. 6 To support this position, DIRECTV cites the deposition testimony of various Plaintiffs. See Doc. 86 at 25 n.47 & 48. A review of the cited pages shows that the Plaintiffs testified that technicians, including some Plaintiffs, worked under other technicians' identification numbers, a practice referred to as “ghosting,” docs. 80-1 at 18, 80-20 at 11, 80-35 at 20, could trade work orders with other technicians, docs. 80-15 at 22, 80-23 at 27-28, 80-30 at 38, or could have work orders reassigned by supervisors, doc. 80-20 at 31. 7 For example, some work orders are recorded in Siebel as taking only five to six seconds to complete. Doc. 105 at 8. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 173 of 520 PageID 809 Battle v. DirecTV, L.L.C., Not Reported in Fed. Supp. (2017) 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 Second, the Plaintiffs allege that DIRECTV had constructive knowledge because DIRECTV “required that all independent contractor technicians be set on a typically six-day work schedule.” Doc. 99 at 18. This contention is also unavailing, because the nature of the Plaintiffs' work is such that there is no direct correlation between the number of days worked per week and the number of hours worked per week. Depending on the number of work orders a technician receives each day and how long it takes to complete them, 8 a six-day workweek could be either over or under forty hours. Thus, without more, DIRECTV’s knowledge of the typical workweek scheduling does not show that they should have known that the Plaintiffs worked overtime. Accordingly, for this reason as well, DIRECTV’s motion is due to be granted. 8 For example, Plaintiff Kris Battle testified that the length of individual jobs and the total number of hours he worked a week could vary based on the layout of a customer’s home, whether he had the equipment he required, the amount of time required for customer education, and whether the home had been previously wired for DIRECTV, among other factors. Doc. 80-3 at 31, 35-36. IV. CONCLUSION For the reasons stated above, DIRECTV’s first, second, and third motions for summary judgment, docs. 78, 81, 83, are due to be denied, and its fourth motion, doc. 85, is due to be granted. DONE the 14th day of September, 2017. All Citations Not Reported in Fed. Supp., 2017 WL 4076205, 2017 Wage & Hour Cas.2d (BNA) 324,002 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 174 of 520 PageID 810 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Pennington v. Integrity Communications, Inc., E.D.Mo., May 20, 2014 2013 WL 4804841 United States District Court, N.D. Illinois, Eastern Division. James BENNETT, et al., Plaintiffs, v. UNITEK GLOBAL SERVICES, LLC, et al., Defendants. No. 10 C 4968. | Sept. 9, 2013. Attorneys and Law Firms Robin B. Potter, Patrick James Cowlin, Robin Potter & Associates P.C., Chicago, IL, Alenna Kathryn Bolin, Rochester, MN, for Plaintiffs. Colin D. Dougherty, Jonathan David Christman, Fox Rothschild LLP, Eric J. Bronstein, Elliott Gerrnleaf & Siedzikowski, PC, Blue Bell, PA, Jason S. Dubner, John David Winters, Nathan D. Larsen, Ursula A. Taylor, Butler Rubin Saltarelli & Boyd LLP, Chicago, IL, for Defendants. MEMORANDUM OPINION AND ORDER HARRY D. LEINENWEBER, District Judge. *1 Before the Court are Defendants' Motions for Summary Judgment and Defendants' Motion to Strike. For the reasons below, Defendants' motion to strike is granted in part and denied in part and Defendants' Motions for Summary Judgment are granted in part. The Court declines to exercise supplemental jurisdiction over Plaintiffs' state law claims and dismisses these claims without prejudice to allow Plaintiffs to re-file in state court if they choose. I. BACKGROUND Plaintiffs James Bennett (“Bennett”), Jerome Garrison (“Garrison”) and Jermaine Litt (“Litt”) bring this suit against Defendants DirectSAT and Unitek Global Services, LLC (collectively, the “Defendants”) alleging violations of the Fair Labor Standards Act (“FLSA”), the Illinois Minimum Wage Law (“IMWL”), and the Illinois Wage Payment and Collection Act (“IWPCA”). The relevant facts are as follows. DirectSAT (“DirectSAT”) employs individuals who install, upgrade, and service DirectTV customers. It began operating in Illinois in 2006. For its installation services, DirectSAT hires subcontracting companies and independent contractors. Plaintiff James Bennett entered into an agreement with DirectSAT in September 2006 (the “September 2006 Agreement”). The 2006 Agreement provided that Bennett would perform satellite installation services for DirectSAT on behalf of his company, Illinois Wiring, Inc. (“Illinois Wiring”) for a one-year period. This Agreement contained an automatic renewal clause that would continue the parties' business relationship unless written notification of cancellation was provided. Bennett formed Illinois Wiring in 2004 and was the company's sole owner and president. After the September 2006 Agreement with DirectSAT expired, Illinois Wiring remained in business, but discontinued performing services for DirectSAT. Eventually, the company dissolved in 2009. Shortly thereafter, Bennett formed a different company, Unlimited, LLC (“Unlimited”). Unlimited operated out of the same location and performed essentially the same services as Illinois Wiring. In April 2009, Bennett entered into a second agreement (the “2009 Agreement”) with DirectSAT. The term on this contract was again one year. The other terms of the 2009 Agreement were generally the same as the 2006 Agreement, with the exception being that in 2009, Bennett was performing installation services on behalf of his new company, Unlimited. After the 2009 Agreement expired, the business relationship between Bennett and DirectSAT ceased. Unlimited continues to perform cable installation services in Illinois today. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 175 of 520 PageID 811 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 In August 2010, Bennett filed a Complaint against DirectSAT and Unitek Global Services, LLC (“Unitek”). In his Complaint, Bennett alleged that Defendants failed to provide overtime compensation and deducted monies from his paychecks without his consent. In February 2012, Bennett amended his Complaint to add Plaintiffs Jerome Garrison and Jermaine Litt. Garrison and Litt were co-owners of Professional Services, Inc. (“Professional Services”) at the time they executed their first Agreement with DirectSAT in November 2006. *2 Professional Services performed cable, satellite, and alarm installation work. It was formed prior to November 2006 and had contractual agreements with other companies prior to entering into an agreement with DirectSAT. When Garrison and Litt formed Professional Services, they were required to satisfy corporate reporting requirements, pay federal and state taxes, provide their own insurance and purchase their own trucks and tools. They ran the company out of Garrison's residence. At some point in 2009, Professional Services dissolved. Subsequently, Garrison and Litt formed a new company, Sat1Pro, Inc. (“Sat1Pro”). Garrison and Litt were the co-owners of Sat1Pro and operated the business out of Garrison's home. On November 7, 2006, Garrison and Litt entered into their first Agreement (“the November 2006 Agreement”) with DirectSAT. Like Bennett, Litt and Garrison's Agreement was executed on behalf of their company, Professional Services. The terms of the November 2006 Agreement were virtually identical to the one Bennett executed. It identified Professional Services as an “Independent Contractor” and was for a one-year period with an automatic renewal unless written notification of cancellation was provided. See, Defs.' L.R. 56.1 Statement of Material Facts as to Litt and Garrison, Ex. 5. On or about January 1, 2009, Garrison and Litt entered into a second Agreement (the “January 2009 Agreement”) with DirectSAT on behalf of Professional Services. The January 2009 Agreement was again nearly identical to the other Agreements described above. On or about April 29, 2009, Garrison and Litt entered into a third Agreement with DirectSAT (“the April 2009 Agreement”). This Agreement was on behalf of their new company, Sat1Pro, and contained the same terms as the other agreements described above. At some point in 2009, DirectSAT terminated the April 2009 Agreement with Sat1Pro. Sat1Pro remains in business today. Plaintiffs Bennett, Garrison and Litt filed their Second Amended Complaint in February 2012. In their Complaint, Plaintiffs claim to be employees of DirectSAT and allege that DirectSAT and Unitek failed to pay them appropriate wages and overtime compensation in violation of the FLSA, the IMWL, and the IWPCA. Defendants have moved for summary judgment against all Plaintiffs on all counts. They have filed two separate motions—one for Bennett and one for Garrison and Litt. II. LEGAL STANDARD Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute is “genuine” if the evidence would permit a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is material if it could affect the outcome of the case. Id. If the moving party satisfies its burden, the non-movant must present facts to show a genuine dispute exists to avoid summary judgment. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To establish a genuine issue of fact, the non- moving party “must do more than show that there is some metaphysical doubt as the material facts.” Sarver v. Experian Info. Sys., 390 F.3d 969, 970 (7th Cir.2004). III. ANALYSIS *3 After Plaintiffs filed their response to Defendants' summary judgment motions, Defendants filed a Motion to Strike Plaintiffs' declarations, exhibits, and Local Rule 56.1(b) submissions. See, ECF No. 142. Prior to addressing the merits of Defendants' Motions for Summary Judgment, the Court examines briefly the Motion to Strike. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 176 of 520 PageID 812 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 A. Defendants' Motion to Strike Defendants contend that portions of Plaintiffs' responses to Defendants' Statements of Material Fact should be struck because Plaintiffs failed to abide by Local Rule 56.1. They also ask the Court to strike Plaintiffs' unauthenticated exhibits and contradictory declarations. The Court will address all three objections in turn. 1. Plaintiffs' Response to Defendants' Local Rule 56.1 Statements of Material Fact Local Rule 56.1 governs motions for summary judgment. Its purpose is to “make it relatively simple for the court to determine whether there are bona fide issues of fact requiring a trial.” Widmar v. Sun Chemical, No. 11– C–1818, 2012 U.S. Dist. LEXIS 148684 at *1 (N.D.Ill. Oct. 16, 2012). The Rule requires the party moving for summary judgment to put forth a statement of “material facts” which consist of “short numbered paragraphs” that include specific references to “affidavits” or “other parts of the record” that support the facts set forth. L.R. 56.1(a). Pursuant to Rule 56.1, the party opposing summary judgment must give “a concise response” to each of the movant's statements. L.R. 56.1(b). If the opposing party denies a fact as true, the Rule requires the opposing party to provide “specific reference to affidavits, parts of the record, and other supporting materials” that support the denial. Id. Defendants claim a substantial portion of Plaintiffs' responses to Defendants' Local Rule 56.1 Statements must be struck because Plaintiffs failed to abide by Local Rule 56.1. Specifically, Defendants take issue with the additional facts Plaintiffs added to a number of the Statements. After reviewing the responses Defendants objected to, the Court finds the argument well-taken. Plaintiffs' response to Defendants' paragraph 67 is a good example. See, Pl.'s Resp. to Def. Bennett's L.R. 56.1 Statements of Fact ¶ 67, ECF No. 130, PageID# 1687–90. This paragraph explains Mr. Bennett's responsibilities as owner of Unlimited. Specifically, Defendants' state Bennett's responsibilities included payroll, picking up equipment, supervising technicians, and maintaining bank accounts. Id. at PageID# 1687. As support, they reference Bennett's deposition testimony. See, id. In response to this statement, Bennett begins by stating, “[d]isputed in part.” Id. He then proceeds to provide a three and half page explanation of his roles and responsibilities. See, id. Explanations of this kind are not appropriate in a response to a Local Rule 56.1 Statement. See, L.R. 56.1(b). Accordingly, the Court strikes this response and deems the fact admitted. See, Malec v. Sanford, 191 F.R.D. 581, 584 (N.D.Ill.2000) (stating that a response is not the place for argumentative denials and a nonmovant's failure to adhere to these requirements is equivalent to admitting the movant's statement). While Plaintiffs argue that the response is appropriate because Defendants included four separate facts in Paragraph 67, the Court disagrees. To be clear, Paragraph 67 is three lines long. It states four of Bennett's responsibilities. A denial spanning more than three pages long can in no way be construed as “concise.” L.R. 56.1(b). *4 Bennett's responses to Paragraphs 9, 11, 21, 22, 29, 31, 33, 35, 37, 38, 46, 48, 50, 51, 52, 53, 54, 57, 61, 63, 65, 67, 69, 76, 77 are similarly deficient. As such, the Court strikes the additional facts contained therein and deems the facts admitted. Finger v. Orkin, Inc., No. 08–0424, 2009 U.S. Dist. LEXIS 2810, at *7, 2009 WL 102982 (N.D.Ill. Jan. 15, 2009) (“unresponsive denials and responses that include additional facts do not comply with Local Rule 56.1 and ordinarily must be disregarded[.]”). Plaintiffs' responses to Defendants' Local Rule 56.1 Statements as to Litt and Garrison also add additional facts and arguments. Because of this, the Court strikes the responses to Paragraphs 9, 13, 15, 19, 20, 25, 26, 31, 36, 40, 41, 42, 44, 45, 46–47, 51, 52–58, 62–64, 68–70, 72, and 74 and deems the facts admitted. See, id. 2. Unauthenticated Exhibits Defendants next argue that the Court should strike Plaintiffs' unauthenticated exhibits. Defendants claim Plaintiffs submitted several emails that were sent by individuals who were never deposed and therefore are unauthenticated and represent inadmissible hearsay. In response, Plaintiffs provide declarations of the recipients of the emails. See, ECF No. 150–1; 150–2. The Court finds these declarations sufficient for authentication purposes and therefore declines to strike the exhibits. See, Fenje v. Feld, 301 F.Supp .2d 781, 809 (N.D.Ill.2003) (“e-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient.”). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 177 of 520 PageID 813 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 3. Plaintiffs' Declarations Defendants also contend that Plaintiffs' declarations must be struck. They claim the declarations attempt to create an issue of material fact by contradicting earlier deposition testimony. Specifically, Defendants point to portions of Bennett's declaration. They claim Bennett's declaration contradicts his deposition testimony and his sworn bankruptcy filings. Plaintiffs argue otherwise. They claim the only paragraph that Defendants reference as contradictory is an explanation or clarification of an answer Bennett provided at his deposition. After reviewing the relevant excerpts of the deposition and comparing it to the statement in the declaration, the Court gives Plaintiffs the benefit of the doubt, and declines to strike the declaration. B. Defendants' Motions for Summary Judgment Defendants argue that they are entitled to judgment as a matter of law with respect to all Plaintiffs because Plaintiffs were independent contractors and cannot be construed as “employees” under the FLSA, IMWL, or the IWCPA. Defendants claim Plaintiffs' status as independent contractors status causes all of their claims to fail. 1. Plaintiffs' FLSA Claims (Counts I & II) “It is undisputed that the provisions of the FLSA do not apply unless there is a valid employer-employee relationship.” Bulaj v. Wilmette Real Estate & Mgmt. Co., No. 09–C–6263, 2010 WL 4237851 at *4 (N.D.Ill. Oct. 21, 2010) (citing Sec. of Labor, U.S. Dep't of Labor v. Lauritzen, 835 F.2d 1529, 1534–35 (7th Cir.1987). The relevant provision of the FLSA defines an employee as “any individual employed by an employer.” 29 U.S.C. § 203(e). While the definition has been construed broadly, it is well established that independent contractors are not considered employees under the FLSA. Solis v. Int'l Detective & Protective Serv., Ltd., 819 F.Supp.2d 740, 749 (N.D.Ill.2011). *5 To determine whether an individual is an “employee” under the FLSA, the Seventh Circuit instructs courts to consider the “six-factor test to determine the economic reality of the situation .” Estate of Suskovich v. Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 565 (7th Cir.2009) (citations omitted). Those six factors include: 1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; 4) whether the service rendered requires a special skill; 5) the degree of permanency and duration of the working relationship; 6) the extent to which the service rendered is an integral part of the alleged employer's business. Lauritzen, 835 F.2d at 1535. These factors are designed to assist the Court in ascertaining whether employees are actually “dependent upon the business to which they render service.” Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 91 L.Ed. 1947, (1947). The more economically dependent the alleged employees are upon the business, the more likely an employer-employee relationship exists and the FLSA applies. The less dependent the alleged employee is to the business, the more likely the Court will find the worker to be an independent contractor in business for himself. Solis, 819 F.Supp.2d at 749. Courts have held repeatedly that none of the six factors is dispositive and instead the totality of the factors and circumstances control. See, id. Prior to analyzing these six factors the Court turns to the language of the Agreements at issue. While the Court acknowledges that an “employer's label of [an individual as] an ‘independent contractor’ carries little weight in defining [an individual's] status as [an] independent contractor [ ] ... [,]” the language is relevant in the Court's analysis. Solis, 819 F.Supp.2d. at 752. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 178 of 520 PageID 814 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Section XIV of the all of Plaintiffs' Agreements is titled “Relationship of Parties.” See, ECF Nos. 116–5, 116–6, 119–5, 119–6. It reads: “Contractor” is an independent contractor of the “Company” [DirectSAT]. Nothing in this Agreement shall be construed as creating employer-employee relationships, as a guarantee of future employment or engagement or as a limitation upon the “Company's” sole discretion to terminate this Agreement at any time without cause. “Contractor” further agrees to be responsible for all of “Contractor's federal and state taxes, withholding social security, insurance and other benefits. Defs.' L.R. 56.1 Statement of Material Fact as to Plaintiff James Bennett, Ex. 5, ECF No. 116–5. While the Court finds this language unambiguous with respect to DirectSAT's subjective intent regarding the parties' relationship, the Seventh Circuit directs courts to analyze the six factors announced in Lauritzen to ensure that employers do not include language of this kind as a way of escaping the requirements of the FLSA. See generally, Estate of Suskovich v. Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 565 (7th Cir.2009). a. Nature and Degree of DirectSAT's Control *6 Courts in this Circuit have held that “[e]vidence that reflects the employer's dominance over the ‘manner and method’ of how work is performed tends to indicate that the individual was an employee under the “control” of the employer.” See, Jaworski v. Master Hand Contractors, Inc., No. 09 C 07255, 2013 WL 1283534 at *3 (N.D.Ill. Mar.27, 2013) (citations omitted). Defendants argue that DirectSAT did not control the manner and amount of work performed by Plaintiffs or whether Plaintiffs even worked at all. They point out that DirectSAT's lack of control is illustrated by the fact that all Plaintiffs had established their own installation companies prior to contracting with DirectSAT in 2006. They also point out that Plaintiffs had entered into other agreements with other customers to perform similar services before contracting with DirectSAT in 2006. Plaintiffs disagree. They contend DirectSAT had significant control over Plaintiffs daily work schedules since Plaintiffs “could not reschedule jobs” and were obligated to follow “strict procedures[.]” Pl.'s Mem. in Opp. to Def. Bennett's Mot. for Summ. J. at 8. As support that this is sufficient to transform the relationship to one of employer-employee, Plaintiffs rely upon a handful of non-binding district court cases. After reviewing these cases however, the Court finds Plaintiffs' argument unavailing. First, the Court points out that all of the cases Plaintiffs reference differ in one important respect from the one at bar. None of the cases involve an alleged employee who admittedly was the sole owner and/or co-owner of two separate companies at the time of the alleged employer- employee relationship. See, Pl.'s Resp. to Def. Bennett's L.R. 56.1 Statement of Material Fact ¶¶ 10, 15, 16, ECF No. 130; Pl.'s Resp. to Def. Garrison and Litt's L.R. 56.1 Statement of Material Fact ¶¶ 7, 21. ECF No. 136. Next, the Court examines the factors listed in the Department of Labor Field Operations Handbook (the “Handbook”) to analyze the amount of control DirectSAT had over Plaintiffs. Among other things, the Handbook instructs courts to consider the length of the contract, the employer's ability to discharge employees of the alleged contractor, and whether the work done by the alleged contractor is the same or similar to that done by admitted employees. See, Solis v. Cascom, Inc., No. 3:09–CV–2011 U.S. Dist. LEXIS 122573 at *10– 11, 2011 WL 10501391 (S.D.Ohio Sep. 21, 2011) (citing The Department of Labor Field Operations Handbook § 10b06). In this case, the Agreements executed by the parties were for a definite one-year period. See, e.g., Def.'s L.R. 56.1 Statements, Ex. 5. Moreover, Bennett admits that his company, Unlimited Wiring, was in a contractual relationship with DirectSAT for two one-year periods —2006–2007 and 2009–2010. Pl.'s Resp. to Def.'s 56.1 Statements ¶ 130, ECF No. 130, Page ID # 1678. Between 2007 and 2009, Illinois Wiring remained in business. Upon its dissolution, Bennett formed Unlimited which remains in business today. Id. ¶ 70. *7 Garrison and Litt's circumstances are substantially similar. They first entered into an Agreement with DirectSAT in 2006 on behalf of Professional Services. They then entered into two separate Agreements (one on behalf of Professional Services and the other on behalf of WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 179 of 520 PageID 815 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Sat1Pro) in 2009. None of the parties attempt to argue or explain why Plaintiffs and DirectSAT did not continue to do business in the 2008 year. In addition to this, the Agreements between the parties permitted Plaintiffs to hire and utilize their own technicians and allowed Plaintiffs to engage in other independent contracting activities. See, Def.'s L.R. 56.1 Statements of Fact, Exs. 5 & 6 at Sec. II(L); Sec. XV, ECF No. 116–5, PageID# 1047; ECF No. 116–6, PageID# 1066; ECF No. 119–5; PageID# 1512; ECF No. 119–6, PageID # 1526. Indeed, Garrison and Litt admit that within one week Professional Services had approximately five employees and they continued to receive applications from individuals seeking to become technicians of Professional Services. See, Pls.' Resp. to Defs.' Statement of Material Fact ¶ 46, ECF No. 136, PageID# 1755. While Plaintiffs contend that the clause in the Agreements which permitted them to engage in other independent contracting activities was illusory because they were overwhelmed with work from DirectSAT, the fact remains that DirectSAT permitted other contracting activities. Taken together, these facts do not suggest economic dependence and therefore weigh in Defendants' favor. See, generally, Lauritzen, 835 F.2d at 1536–1538. Despite these facts, Plaintiffs argue that DirectSAT had significant control over their companies and businesses because DirectSAT required Plaintiffs and their technicians to follow its procedures and meet installation requirements. However, courts have held that requiring technicians to meet “installation specifications is entirely consistent with the standard role of a contractor who is hired to perform highly technical duties ... [ .]” Herman v. Mid–Atlantic Installation Servs., 164 F.Supp.2d 667, 672 (D.Md.2000). Plaintiffs also point to the DirectSAT's ability to control their daily work schedule as evidence of control. Specifically, they complain that they could not reschedule jobs without penalty and were forced to attend quality control meetings at specific times. Be that as it may, the Seventh Circuit has stated that “[m]erely setting a work schedule is not sufficient to support a finding that a given person is an employee rather than an independent contractor.” Estate of Suskovich v. Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 566 (7th Cir.2009) (citations omitted). Furthermore, it has held that “the fact that a person is required to be at a given place at a given time” is not sufficient to support an employer-employee relationship. Id. (citing Alexander v. Rush North Shore Med. Ctr., 101 F.3d 487, 493 (7th Cir.1996). Accordingly, the Court does not find Plaintiffs' arguments concerning work schedules and procedures convincing to establish the control required to transform a relationship into an employer-employee relationship. *8 On the other hand, the fact that the Agreements required Plaintiffs to maintain their own bank accounts, procure their own insurance, and pay their own Federal and State taxes on behalf of their businesses is indicative of a lack of control. Defendants also point to Plaintiffs' ability to pay their own technicians at a rate of their choosing. See, Pls. Litt and Garrison's Resp. to Defs.' L.R. 56.1 Statement of Material Fact ¶¶ 74–75 (admitting that Garrison and Litt opted to pay their technicians $60.00 for an installation job as opposed to $70.00 because they wanted to “stay competitive” within the field of cable installers). Thus, taking into account the totality of the circumstances, the Court does not find DirectSAT exercised a sufficient amount of control over Plaintiffs to establish “economic dependence.” See, generally, Lauritzen, 835 F.2d at 1536–1538. b. Opportunity for Profit and Loss The next factor the Court considers when determining whether a worker is an employee or an independent contractor is the worker's opportunity for profit or loss. While certainly not dispositive, the Court finds this factor particularly enlightening in assessing the relationship between the parties here. First, DirectSAT concedes that their Agreements provided that Plaintiffs and their technicians were subjected to “chargebacks” if they failed to comply with certain specification guidelines or lost satellite equipment. See, Def.'s L.R. 56.1 at ¶¶ 57–59. Plaintiffs point to this as evidence to support their inability to control their profits and losses. However, “chargebacks do not strongly indicate employee status.” Scantland v. Jeffry Knight, Inc., No. 12–12614, 2013 U.S.App. LEXIS 14393 at *20, 2013 WL 3585635 (11th Cir. July 16, 2013). Moreover, Plaintiffs overlook the fact that they were permitted to purchase their own vehicles, tools, insurance, and licensure fees. This allowed Plaintiffs to control the overhead costs of their business, which in turn affected their profits. Indeed, Garrison testified that WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 180 of 520 PageID 816 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 Professional Services would search for “[w]hoever had the cheapest [insurance] rate at the time” while providing the “maximum coverage” when determining what insurance company to use. See, Pls. Litt and Garrison's Resp. to Defs.' L.R. 56.1 Statement of Material Fact 9[ 17, ECF No. 136, PageID# 1745. Obviously, this allowed Plaintiffs to control their profits and losses. In addition to this, Garrison and Litt admitted that they chose the exact pay their technicians would receive based upon a pay range DirectSAT provided. See, Pls. Garrison and Litt's Resp. to Defs.' L.R. 56.1 Statement of Material Fact 9[ 74. They acknowledge that this allowed them to receive more money. They further admit that as co-owners of their own company, they were never required to pay themselves, and instead chose to do so. See, id. 9[9[ 76–77. All of these facts reflect Plaintiffs' ability to control their own profits and losses. *9 Finally, it is worth noting that Bennett's company, Unlimited, and Garrison's company, Sat1Pro, are still in business today. See, Pl. Bennett's Resp. to Defs.' L.R. 56.1 Statement of Fact ¶ 79, ECF No. 130, PageID # 1694. This fact does not suggest that Plaintiffs' companies were economically dependent upon DirectSAT. c. Investment and Equipment The third factor the Court considers is the alleged “employee's investment in equipment or materials required for his task, or his employment of workers.” Jeffry Knight, Inc., 2013 U.S.App. LEXIS 14393 at *24, 2013 WL 3585635. While courts have held that this factor should not “weigh heavily in the analysis” it is but one of the six factors set forth in Lauritzen. Estate of Suskovich v. Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 567 (7th Cir.2009). In Scantland v. Knight, (a case Plaintiffs urge the Court to rely upon in their motion to submit supplemental authority), the Eleventh Circuit determined that because the cable installation technicians were required to have their “own vehicles, auto insurance, tools and safety equipment, and commercial general liability insurance,” this tipped the scale in favor of independent contractor status. Scantland v. Knight, 2013 U.S.App. LEXIS 14393 at *24, 2013 WL 3585635. Similar to the Seventh Circuit, the Eleventh Circuit reasoned that the factor only did so “weakly” since many technicians probably had purchased their own vehicles before entering into the relationship with the alleged employer and probably purchased their specialty tools through payroll withholdings from the alleged employer. Id. at *25. With respect to the investment of equipment Scantland is comparable to the case at bar. Here, Plaintiffs were required to procure their own insurance and have their own vehicles and ladders for the installation services. In addition, Plaintiffs were required to pay their own federal and state taxes on behalf of their respective companies. The Court finds these facts indicative of at least some “economic independence.” See, Jaworski v. Master Hand Contractors, Inc., No. 09 C 07255, 2013 WL 1283534 at *4 (N.D.Ill. Mar.27, 2013) (stating that the “investment factor is related to the opportunity for profit or loss factor ...”). d. Special Skills The fourth factor is whether the services the alleged employee renders require “special skills.” Lauritzen, 835 F.2d at 1535. A finding of unique or distinctive skills weighs in favor of independent contractor status. Id. Defendants argue that Plaintiffs work as cable installation technicians qualifies as a special skill. They rely upon case law from other Circuits as support. See, Chao v. Mid–Atlantic Installation Servs., 16 Fed.Appx. 104, 107 (4th Cir.2001) (stating that “skills of cable installers are akin to those of carpenters, construction workers, and electricians”); see also, Freund v. Hi–Tech Satellite, Inc., 185 Fed.Appx. 782, 784 (11th Cir.2006). *10 Plaintiffs, on the other hand, contend that this case is distinguishable because DirectSAT had “inside tech employees.” Pl .'s Mem. in Opp. Resp. to Def. Bennett's Mot. for Summ. J. at 14. However, Plaintiffs fail to articulate whether DirectSAT's alleged “inside tech employees” perform the same services and possess the same skills as Plaintiffs. Indeed, other than their bare assertion regarding inside tech employees, Plaintiffs fail to offer any support why this fact would cause Plaintiffs' skills as cable installation technicians to be any less “special.” In fact, it is worth noting that the supplemental authority Plaintiffs request the Court to consider (Scantland v. Jeffry Knight, 2013 U.S.App. LEXIS 14393 at *26, 2013 WL 3585635), also concluded that this factor weighed in favor of independent contractor status. Id. at *26. Accordingly, the Court finds this factor weighs in Defendants' favor. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 181 of 520 PageID 817 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 e. Degree of Permanency in the Working Relationship The final factor the Court considers is the degree of permanency in the working relationship. As the Court noted previously, it is undisputed that the Agreements the parties executed were one-year term contracts. See, Defs.' L.R. 56.1 Statement of Material Fact as to Garrison & Litt, Exs. 5–7, ECF Nos. 119–5, 119–6, & 119–7; see also, Defs.' L.R. 56.1 Statement of Material Fact as to Bennett, Exs. 5–6, ECF Nos. 116–5 & 116–6. While the Agreements contained an automatic renewal clause unless written notification was provided, Plaintiffs admit they worked for DirectSAT only from 2006–2007 and then again in 2009. Bennett worked from 2009–2010, but Garrison and Litt only worked for a portion of 2009, as their final 2009 Agreement was terminated. This factor illustrates a significant difference between this case and Scantland. Id. at *27–28. In Scantland, the average length of service for the named plaintiffs was five years. Id. at *28. Also, in that case, the plaintiffs could not work for other companies. Id. The Agreements here provide otherwise. Thus, the terms of Agreements and the lack of permanency in the parties' business relationship weigh in favor of independent contractor status. See, Lamson v. EMS Energy Mktg. Serv., Inc., 868 F.Supp.2d 804, 814 (E.D.Wis.2012) (finding a contract that was for a specific term but included an automatic renewal provision did not weigh in favor of finding an employer-employee relationship). f. Integral Part of the Business The final factor of the economic reality test is whether the services the alleged employee rendered were an integral part of the alleged employer's business. See, Harper v. Wilson, 302 F.Supp.2d 873, 879 (N.D.Ill.2004) (explaining that “workers are more likely to be ‘employees' under the FLSA if they perform the primary work of the alleged employer.”). Defendants concede that the services Plaintiffs provided were a critical part of DirectSAT's business. However, Defendants correctly point out that this factor is not dispositive, as the Seventh Circuit has held repeatedly that no single factor is controlling in determining an individual's employment status. See, Bulaj v. Wilmette Real Estate & Mgmt. Co., LLC, No. 09 CV 6263, 2010 WL 4237851 at *5 (N.D.Ill. Oct.21, 2010) (citing Lauritzen, 835 F.2d at 1534) (courts “do not look to a particular isolated factor but to all the circumstances of the work activity.”). *11 After considering all of the above factors, the Court concludes that Plaintiffs are not employees under the FLSA. In addition to that already mentioned, the Court also finds it worth mentioning that the Plaintiffs' subjective beliefs supports this finding. For example, when Bennett filed for Chapter 13 Bankruptcy in 2009, he identified “Unlimited Wiring, Inc.” as the business in which he “was an officer director, partner ... sole proprietor or was self-employed in a trade, profession, or other activity” on his Bankruptcy Petition. Defs.' L.R. 56.1 Statements of Material Fact, Ex. 3 at 73–74, ECF No. 116–3. Then later in 2012, Bennett filed for Chapter 7 Bankruptcy. In this Petition he identified “Unlimited LLC” as his employer and stated that the length of his employment with Unlimited was “7 years.” Pl.'s Resp. to Def.'s L.R. 56.1 Statements ¶¶ 76–77. The fact there was never any mention of DirectSAT on either Petition also weighs in favor of a finding of independent contractor status. The record also contains evidence of Garrison's subjective intent regarding the parties' relationship. During his deposition, Garrison testified that he and Litt sought to make Professional Services, Inc. “the biggest contracting company in Illinois.” See, Defs.' L.R. 56.1 Statement of Material Fact; Ex. 3, ECF No. 119–3 at PageID # 1341. In his deposition he also explained why Professional Services, Inc. was one of the top subcontracting companies. He stated, “... the difference between subcontracting and in- house technicians ... [is that] that [i]n-house technicians get paid by the hour, so they don't care if a job goes in or not. Subcontractor who has to spend his own money and buy his own tools and equipment, he is going to get that job in ... [.]” Id. at PageID # 1343–44. In sum, when considering the language of the Agreements, the six factor economic reality test, and the parties' subjective beliefs, the Court finds Plaintiffs were independent contractors. Because of this, Plaintiffs' claims under the FLSA fail. Accordingly, the Court grants Defendants' summary judgment with respect to Counts I and II. C. Supplemental Jurisdiction Declined Over Pendent State Law Claims WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 182 of 520 PageID 818 Bennett v. Unitek Global Services, LLC, Not Reported in F.Supp.2d (2013) 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 Plaintiffs' only remaining claims are their state law claims under the IMWL and the IWCPA (Counts III & IV). The Court, in its discretion, declines to exercise supplemental jurisdiction over these claims. See, 28 U.S.C. § 1367(c)(3); see also, Hansen v. Bd. of Trustees of Hamilton Se. Sch. Corp., 551 F.3d 599, 607 (7th Cir.2008) (“[s]upplemental jurisdiction is a doctrine of discretion ...”). Thus, the Court dismisses Plaintiffs' IMWL and IWCPA claims without prejudice to allow Plaintiffs' to refile these claims in state court if they so choose. The Court notes that its decision not to exercise supplemental jurisdiction does not reflect any views regarding the merits of Plaintiffs' state law claims. IV. CONCLUSION *12 For the reasons stated herein the Court rules as follows: 1. Defendants' Motion to Strike [ECF No. 142] is granted in part and denied in part; 2. Defendants' Motion for Summary Judgment as to Plaintiff James Bennett [ECF No. 115] is granted in part; 3. Defendants' Motion for Summary Judgment as to Plaintiffs Jermaine Litt and Jerome Garrison [ECF No. 118] is granted in part; and 4. Counts III & IV of the Complaint are dismissed without prejudice to allow Plaintiffs to re-file these claims in state court. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 4804841, 163 Lab.Cas. P 36,162, 21 Wage & Hour Cas.2d (BNA) 573 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 183 of 520 PageID 819 Chao v. Mid-Atlantic Installation Services, Inc., 16 Fed.Appx. 104 (2001) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Guerra v. Teixeira, D.Md., January 25, 2019 16 Fed.Appx. 104 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fourth Circuit Rule 32.1 (Find CTA4 Rule 32.1) United States Court of Appeals, Fourth Circuit. Elaine L. CHAO, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. MID-ATLANTIC INSTALLATION SERVICES, INCORPORATED; Comcast Cablevision of Maryland, L.P., d/b/a Comcast Cablevision of Baltimore County; Comcast Cablevision of Harford County, Incorporated; Comcast Cablevision of Howard County, Incorporated; M/A Telecommunications, Incorporated; Comcast Cable Communications, Incorporated; Comcast Cable of Maryland, Incorporated, Defendants-Appellees. No. 00-2263. | Argued June 6, 2001. | Decided July 2, 2001. Synopsis Secretary of Labor sued cable television installation broker, alleging that it violated Fair Labor Standards Act (FLSA) by failing to pay overtime wages to cable installers. The United States District Court for the District of Maryland, Frederic N. Smalkin, J., entered summary judgment for broker. Secretary appealed. The Court of Appeals held that installers were independent contractors rather than employees for purposes of FLSA. Affirmed. West Headnotes (3) [1] Labor and Employment Employment Relationship Labor and Employment Independent Contractors To determine whether an employer-employee relationship exists under the FLSA, courts must determine whether, as a matter of economic reality, an individual is an employee or an independent contractor in business for himself. Fair Labor Standards Act of 1938, § 3(d), (e)(1), (g), 29 U.S.C.A. § 203(d), (e)(1), (g). 16 Cases that cite this headnote [2] Labor and Employment Employment Relationship Courts determining whether an employer- employee relationship exists under the FLSA are guided by several factors: (1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; (2)the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; and (6) the extent to which the service rendered is an integral part of the alleged employer's business. Fair Labor Standards Act of 1938, § 3(d), (e)(1), (g), 29 U.S.C.A. § 203(d), (e)(1), (g). 18 Cases that cite this headnote [3] Labor and Employment Persons in Particular Employments Cable television installers were “independent contractors” rather than “employees” of cable installation broker for purposes of FLSA, even though installers were integral ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 184 of 520 PageID 820 Chao v. Mid-Atlantic Installation Services, Inc., 16 Fed.Appx. 104 (2001) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 to broker's business, where manner in which installers completed their work was left to their broad discretion and business judgment, they had opportunity for profit and loss, installers were required to supply their own trucks, their degree of skill was akin to that of carpenters and electricians, and long-term relationship between installers and broker was not required. Fair Labor Standards Act of 1938, § 3(d), (e)(1), (g), 29 U.S.C.A. § 203(d), (e)(1), (g). 22 Cases that cite this headnote *105 Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-97-4238-S). Attorneys and Law Firms Ellen Randi Edmond, United States Department of Labor, Washington, DC, for appellant. Douglas Michael Topolski, McGuire Woods, L.L.P., Baltimore, MD; James Joseph Sullivan, Jr., Klett, Rooney, Lieber & Schorling, Philadelphia, PA, for appellees. ON BRIEF: Henry L. Solano, Solicitor of Labor, Steven J. Mandel, Associate Solicitor of Labor, Paul L. Frieden, for Appellate Litigation, Catherine Oliver Murphy, Regional Solicitor, United States Department of Labor, Washington, DC, for appellant. Elena D. Marcuss, McGuire Woods, L.L.P., Baltimore, MD, for appellees Mid-Atlantic, et al. Stephen C. Trevisan, Klett, Rooney, Lieber & Schorling, Philadelphia, PA, for appellees Comcast, et al. Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges. OPINION PER CURIAM. **1 The Secretary of the United States Department of Labor (“the Secretary”) brought this action alleging that M/A Telecommunications, Inc. (“MAT”) and Comcast Cablevision (“Comcast”) violated the Fair Labor Standards Act (“FLSA”) by failing to pay overtime wages to cable installers. The district court granted summary judgment to MAT and Comcast, and the Secretary appeals. We affirm on the reasoning of the district court. I. Comcast, a cable television provider, entered into a contract with MAT for the installation and repair of cable equipment on the premises of Comcast's customers. MAT contracts with individual installers (“the Installers”) to perform the installation and repair work. The contract between MAT and the Installers (“the Contract”) repeatedly refers to the Installers as independent contractors. J.A. 290 (“Do not perform services or sign a contract with [MAT] unless you consider yourself an Independent Contractor.”); J.A. 297 (“It is hereby agreed and acknowledged ... that Contractor shall, at all times, function as an independent contractor and not as [MAT's] employee.”). Despite the explicit language of the Contract and other indicia that the Installers are independent contractors, the Secretary brought this action against Comcast and MAT, alleging that the Installers are employees within the meaning of the FLSA and that they are therefore entitled to overtime pay. The district court granted summary judgment to Comcast and MAT because it concluded that the Installers are independent contractors not covered by the FLSA. II. The requirements of the FLSA apply only to employees. The statute defines an “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). In turn, the FLSA defines “to employ” as “to suffer or permit to work,” 29 U.S.C. § 203(g), and an “employer” as “any person acting ... in the interest of an employer in relation to an employee,” 29 U.S.C. § 203(d). [1] [2] Recognizing that these definitions do little to “solve [ ] problems as to *106 the limits of the employer- employee relationship under the [FLSA],” the Supreme Court has explained that courts must determine whether, as a matter of “economic realit[y],” an individual is an employee or an independent contractor in business for himself. Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). Several factors guide this inquiry: WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 185 of 520 PageID 821 Chao v. Mid-Atlantic Installation Services, Inc., 16 Fed.Appx. 104 (2001) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 (1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; (6) the extent to which the service rendered is an integral part of the alleged employer's business. **2 Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir.1987). [3] The district court applied the “economic reality” test and held that the Installers are independent contractors rather than employees of MAT. J.A. 10-27. The court concluded that the bulk of relevant considerations weigh heavily in favor of independent contractor status, while only the sixth factor favors the conclusion that the Installers are employees. See Lauritzen, 835 F.2d at 1534 (explaining that courts must consider the totality of the circumstances and that no single factor in the “economic reality” test is dispositive). A. First, the district court held that MAT does not exercise the type of control over “the manner in which the work is to be performed,” id. at 1535, necessary to “characterize the relationship between the Installers and MAT as one of employee/employer.” J.A. 21. Although MAT assigns daily routes to the Installers and requires them to report their progress to a dispatcher periodically, the Installers are free to complete the jobs within their routes in whatever order they wish, J.A. 332-33; to attend to personal affairs or conduct other business during the day, J.A. 326, 385-86, 399; to choose and manage their own employees to help them complete their work orders, J.A. 290; and to work either independently or together with other Installers, J.A. 527-30. Thus, the district court concluded that the manner in which the Installers complete their work is left to their broad discretion and business judgment, which suggests that they are independent contractors. Moreover, the district court rejected the Secretary's argument that MAT's practice of “backcharging” Installers for failing to comply with various local regulations or with technical specifications demonstrates the type of control characteristic of an employment relationship. The court explained that “requiring the Installers to meet MAT's and Comcast's installation specifications is entirely consistent with the standard role of a contractor who is hired to perform highly technical duties.” J.A. 17. See Dole v. Amerilink Corp., 729 F.Supp. 73, 76 (E.D.Mo.1990) (explaining that specifications and quality control “inhere[ ] in any subcontractor relationship”). Further, the court noted that “[i]t is common in contractual relationships”-but not in salaried employment-“to withhold money if work is not done correctly.” J.A. 18. B. As to the second factor, the district court held that the Installers have an “opportunity for profit or loss” that is indicative of independent contractor status. Lauritzen, 835 F.2d at 1535. An Installer's *107 net profit or loss depends on his skill in meeting technical specifications, thereby avoiding backcharges; on the business acumen with which the Installer makes his required capital investments in tools, equipment, and a truck; and on the Installer's decision whether to hire his own employees or to work alone. Moreover, the district court explained that “Installers can control their own profits and losses by agreeing to work more or fewer hours and, more importantly, by improving their technique so that they can service more customers faster.” J.A. 21. **3 The district court recognized that the Installers are not solely in control of their profits or losses, since they cannot unilaterally determine how many Comcast customers they will service on a given day or the rate at which they are paid for each job. Yet the court concluded that the Installers are no less in control of their net profits as a result of these variables than typical independent contractors, “whose income [also] derives from how much work someone else wants to give them and at what rate they will be paid.” J.A. 22. WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 186 of 520 PageID 822 Chao v. Mid-Atlantic Installation Services, Inc., 16 Fed.Appx. 104 (2001) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 C. The district court held that the Installers' “investment in equipment” and their right to employ workers weigh strongly in favor of concluding that they are independent contractors. Lauritzen, 835 F.2d at 1535. The contract between MAT and the Installers requires the Installers to supply their own trucks (equipped with 28-foot ladders), specialized tools, uniforms, and pagers. In addition, the Installers are responsible for their own liability and automobile insurance, and for “withholding [their] own and [their] employees' federal, state and local taxes as well as any payments due for social security self-employment taxes, unemployment and workman's compensation.” J.A. 290. Thus, the Installers incur significant expenses “of a type not normally borne by employees.” J.A. 23. See Amerilink, 729 F.Supp. at 76 (explaining that such expenditures are typically expected of independent contractors but not of employees, who are given necessary tools by an employer). D. The district court likewise concluded that the degree of skill required to install and repair cable equipment favors independent contractor status. The court reasoned that the skills of cable installers are akin to those of carpenters, construction workers, and electricians, who are usually considered independent contractors. J.A. 23. See Amerilink, 729 F.Supp. at 77 (stating that cable installers “possess the special skills of carpenters and electricians”). E. As to the “degree of permanency and duration of the working relationship” between MAT and the Installers, Lauritzen, 835 F.2d at 1535, the district court concluded that “[w]hile it is certainly possible to establish a long-term relationship with MAT, implying employment, it is not necessarily the norm, nor is it required.” J.A. 24. Thus, the district court held that this factor is neutral. F. Finally, the district court concluded that because MAT is in the business of brokering cable installation to cable providers, the Installers are integral to MAT's business. However, the court held that this factor, standing alone, does not create an employment relationship between the Installers and MAT. J.A. 26. See Amerilink, 729 F.Supp. at 77 (explaining that the importance of cable installers to the business of a broker “does not alter the overall impression that the Installers are economically independent from [the broker]”). III. **4 We review the district court's legal conclusion that the Installers are independent *108 contractors de novo, Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986), viewing disputed material facts in the light most favorable to the Secretary, the non-moving party, on summary judgment, Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 551 (4th Cir.1999). After reviewing the parties' briefs and the applicable law, and having had the benefit of oral argument, we conclude that the district court correctly granted summary judgment to MAT and Comcast, * and we affirm on the reasoning of the district court. See Herman v. Mid-Atlantic Installation Servs., Inc., 164 F.Supp.2d 667 (D.Md.2000). * We agree with the district court that “[b]ecause MAT cannot be considered the Installers' employer, neither can Comcast, whose only relationship with them is via its contract with MAT.” J.A. 18. CONCLUSION For the reasons stated herein, the judgment of the district court is affirmed. AFFIRMED. All Citations 16 Fed.Appx. 104, 2001 WL 739243 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 187 of 520 PageID 823 - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 188 of 520 PageID 824 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 189 of 520 PageID 825 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 190 of 520 PageID 826 Footnotes 1 Defendant’s first, second, and eighth affirmative defenses assert that Defendant is entitled to a cost credit for room, board, and other benefits that Defendant provided to Plaintiff during her course of employment. These defenses seek to reduce any damages that Plaintiff is entitled to under the FLSA or the FMWA. 2 This Order does not preclude Plaintiff from objecting at trial that the production of some of the additional documents with the supplemental affidavit violated a separate discovery rule. This Order only addresses the particular relief requested in this motion which is excluding the expert or re-deposing Ms. Vernon. If specific documents were requested but not produced at an earlier stage of the discovery period, for instance, that may warrant relief. On this record, however, we cannot make such a finding. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 191 of 520 PageID 827 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 808 F.Supp.2d 1326 United States District Court, N.D. Georgia, Atlanta Division. Karenza CLINCY, et al., Plaintiffs, v. GALARDI SOUTH ENTERPRISES, INC. d/b/a the Onyx, et al., Defendants. Civil Action No. 1:09–CV–2082–RWS. | Sept. 7, 2011. Synopsis Background: Exotic dancers brought collective action against adult entertainment club's operator under Fair Labor Standards Act (FLSA), seeking payment of overtime and minimum wages. Parties cross-moved for summary judgment. Holdings: The District Court, Richard W. Story, J., held that: [1] dancers were employees, rather than independent contractors, of club; [2] operator exercised significant control over dancers; and [3] dancers' opportunity for profit or loss depended largely on operator. Ordered accordingly. West Headnotes (13) [1] Labor and Employment Employees Included The requirements of the FLSA apply only to employees. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). Cases that cite this headnote [2] Labor and Employment Employment relationship In exotic dancers' collective action against adult entertainment club's operator seeking payment of overtime and minimum wages under FLSA, dancers were not required to establish that they were putative employees of club before court could consider economic realities of their relationship to determine whether an employee/employer relationship existed. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). 4 Cases that cite this headnote [3] Labor and Employment Persons in particular employments Exotic dancers were employees, rather than independent contractors, of adult entertainment club under FLSA; club's operator exercised significant control over dancers' scheduling and appearance, dancers' opportunity for profit or loss depended largely on operator's decisions about advertising and promotions, and dancers made minimal investments in materials compared to that of operator. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). 10 Cases that cite this headnote [4] Labor and Employment Questions of Law or Fact Whether an entity is an employer within the meaning of the FLSA is a legal question, with subsidiary findings considered issues of fact. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). Cases that cite this headnote [5] Labor and Employment Employment relationship The test of employment under the FLSA is one of economic reality. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1). ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 192 of 520 PageID 828 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Cases that cite this headnote [6] Labor and Employment Employment relationship No one factor is determinative in assessing whether an individual is an employee within the meaning of the FLSA, and each factor should be given weight according to how much light it sheds on the nature of the economic dependence of the putative employee on the employer. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). Cases that cite this headnote [7] Labor and Employment Persons in particular employments Adult entertainment club's operator exercised significant control over club's exotic dancers, as a factor weighing in favor of finding that dancers were employees, rather than independent contractors, of club under FLSA; operator enforced rules of conduct that covered dancers' scheduling, dress and appearance, and cost for table-side dances, and it had authority to fine or otherwise discipline dancers for not complying with rules. Fair Labor Standards Act of 1938, § 3(e) (1), 29 U.S.C.A. § 203(e)(1). 7 Cases that cite this headnote [8] Labor and Employment Independent Contractors An employer cannot saddle a worker with the status of independent contractor, thereby relieving itself of its duties under the FLSA, by granting him some legal powers where the economic reality is that the worker is not and never has been independently in the business which the employer would have him operate. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). 2 Cases that cite this headnote [9] Labor and Employment Persons in particular employments Exotic dancers' opportunity for profit or loss depended largely on adult entertainment club's operator, as a factor weighing in favor of finding that dancers were employees, rather than independent contractors, of club under FLSA; operator was primarily responsible for attracting customers to club, since decisions about marketing and promotions were made by operator, not dancers, and risk of loss was much greater for club than it was for dancers. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). 6 Cases that cite this headnote [10] Labor and Employment Persons in particular employments Exotic dancers' minimal investment in materials compared to that of adult entertainment club's operator weighed in favor of finding that dancers were employees, rather than independent contractors, of club under FLSA; operator invested approximately $900,000 over a three-year period for equipment, advertising, insurance, maintenance, alcohol, and other items necessary for its business, while dancers spent on average only $50,000 each per year on costumes, props, makeup, and hair. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). Cases that cite this headnote [11] Labor and Employment Persons in particular employments Exotic dancers were not required to possess any special skill in order to perform at adult entertainment club, as a factor weighing in favor of finding that dancers were employees, rather than independent contractors, of club under FLSA; although club's operator preferred dancers with prior exotic dancing experience, it hired several dancers who lacked such experience. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 193 of 520 PageID 829 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 14 Cases that cite this headnote [12] Labor and Employment Persons in particular employments Exotic dancers' presence at adult entertainment club was integral to its business, as a factor weighing in favor of finding that dancers were employees, rather than independent contractors, of club under FLSA; number of customers at club depended largely on number of dancers performing each night. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). 4 Cases that cite this headnote [13] Labor and Employment Employment relationship In deciding whether an individual is an employee within the meaning of the FLSA, the label attached to the relationship is dispositive only to the degree it mirrors the economic reality of the relationship. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). 1 Cases that cite this headnote Attorneys and Law Firms *1328 Anna P. Prakash, Donald H. Nichols, E. Michelle Drake, Steven A. Smith, Nichols Kaster, PLLP, Minneapolis, MN, Jenny Kiser Mason, Campano & Sperling, Chamblee, GA, for Plaintiffs. Dean R. Fuchs, Susan Kastan Murphey, Schulten Ward & Turner, Atlanta, GA, for Defendants. ORDER RICHARD W. STORY, District Judge. This case comes before the Court on Plaintiffs' Motion for Partial Summary Judgment [211], Defendants' Motion for Summary Judgment [218], and Defendants' Objection to Plaintiffs' Late–Filed Consent Forms [271]. After considering the record, the Court enters the following Order. Background The Court bifurcated discovery in this action, with the first phase focused on whether the entertainers at Onyx are independent contractors or employees. (Dkt. [59] ). Therefore, the pending Motions for Summary Judgment [211, 218] require the Court to determine whether Plaintiffs should have been classified and treated as employees rather than independent contractors. I. The Parties Each of the named Plaintiffs in this action has performed at Club Onyx (“Onyx” or the “Club”) as a dancer/ entertainer. (Dkt. [211–2] at ¶ 3 1 ). Defendant *1329 Jack Galardi is the CEO and controlling shareholder of the Corporate Defendants—Pony Tail, Inc. (“Pony Tail”), Galardi South Enterprises, Inc. (“GSE”), and Galardi South Enterprises Consulting, Inc. (“GSEC”). (PSF at ¶¶ 13–14). Defendant Michael Kap is the Chief Operating Officer of GSEC. (Id. at ¶ 18). The parties disagree as to which Defendant(s) employs the entertainers if the entertainers are found to be employees, but the resolution of that question is immaterial to the determinations the Court needs to make in resolving the pending Motions for Summary Judgment [211, 218]. 1 The background section is taken from Plaintiffs' Statement of Undisputed Facts (“PSF”) [211–2] and Defendants' Statement of Undisputed Material Facts (“DSF”) [219]. In citing to any of Plaintiffs' or Defendants' undisputed facts, the Court has considered any objection to such fact set forth in Plaintiffs' Response to Defendants' Statement of Facts (“PRDF”) [249–1] or in Defendants' Response to Plaintiffs' Statement of Undisputed Facts (“DRPF”) [255]. The Court has also considered Defendants' Objections to Declarations filed by Plaintiffs [252]. Where Defendants have raised a valid objection to one of the declarations, the Court has not relied upon the objectionable portion of the declaration in ruling upon the Motions for Summary Judgment [211, 218]. Further, the Court's reliance on any of the declarations is limited, as less than 20 of ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 194 of 520 PageID 830 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Plaintiffs' 226 material facts solely cite one or more of these declarations. Defendants do note that “the fact that the Declarations are virtually identical to one another, make Defendants wonder whether the declarations were read by the Declarants prior to signing them.” (Dkt. [252] at 1–2). Interestingly, Defendants filed 16 affidavits (Dkt. [253–1 through 253–16] ), which other than having blanks to be filled in regarding the entertainer's name, her start date at Onyx, and the names of any other nightclubs at which she has danced, are exactly identical. Finally, Defendants have filed an Objection to Affidavit of Anna P. Prakash [283], which was filed in support of Plaintiffs' Response [275] to Defendants' Objections to Declarations [252]. The Court did not rely upon Ms. Prakash's three paragraph affidavit or the accompanying exhibit in considering Defendants' Objections to Declarations [252] and therefore Defendants' Objection [283] thereto is moot. II. The Club and Club Management Plaintiffs refer to Onyx as a strip club, Defendants refer to it as a nightclub, regardless of this distinction in nomenclature, Onyx is a club in Atlanta, Georgia that features “nude, female exotic dancers.” (DSF at ¶¶ 1, 2, 4; PSF at ¶¶ 1, 2). The Club has one main stage where entertainers perform, as well as two satellite stages. (PSF at ¶ 214). The main stage is visible from almost every location in the club, and the satellite stages are located in the areas in which the main stage is not visible. (Id. at ¶ 215). Onyx features full-service bars, televisions, pool tables, VIP rooms, and dining options. (DSF at ¶ 5). The Club's management team includes a night manager, relief manager, and a general manager. (PSF at ¶ 24; DRPF at ¶ 24). Rick Hayes, general manager of Onyx, has worked as a manager at the Club since 2006. (PSF at ¶ 26). Since October 2008, Cliff Adams has served as the night manager at Onyx, and for more than a year before that worked at the Club in other capacities. (Deposition of Clifford I. Adams (“Adams Depo.”), Dkt. [234] at 6:19–7:4, 7:5–8). The day-to-day operating decisions at Onyx are made by the Club's management team, unless Defendant Kap conveys specific operating instructions from Defendant Galardi. (PSF at ¶ 35). Management's duties also encompass ensuring entertainers comply with the Club's rules and policies as well as the laws of the City. (Id. at ¶ 34). Assisting the Club's management team with day-to-day operations, particularly in regards to the entertainers, are house moms, “who assist[ ] [entertainers] in the dressing room and on the floor with their *1330 various needs.” (Id. at ¶ 37; DSF at ¶ 45). House moms, hired by the Club's management, assist the entertainers in getting prepared for their shift, signing them in, getting them on the list for the stage set, and maintaining the dressing room. (PSF at ¶ 36; Deposition of Sabrina Swinger (“Swinger Depo.”) at 13:7–15). Sabrina Swinger has been a house mom at the Club since 2007 and considers herself and the other house moms to be the entertainers direct managers. (PSF at ¶¶ 41, 42). III. Becoming an Entertainer at Onyx Onyx does not recruit entertainers. (DSF at ¶ 7). Rather, entertainers interested in working at Onyx must come to the Club and apply in person. (Id. at ¶ 9). Defendants prefer dancers with prior exotic dancing experience, which several of its hires have had, but there is no requirement for past experience or formal dance training, and the Club does not provide any dance training. (Id. at ¶¶ 10, 11; PSF at ¶¶ 186, 187). Applicants typically undergo a “body check” and audition by dancing to two to three songs. (DSF at ¶ 12). The “body check” is an examination of an applicant's physical appearance, including looking for stretch marks and tattoos. (PSF at ¶ 190). The individual(s) before which the applicant auditions evaluates how she moves on stage, her rhythm, her perceived experience dancing naked, and her eye contact. (Id. at ¶ 194). Entertainers are evaluated by club management on the quality of their dancing, experience in the industry, appearance, and communication skills. (Id. at ¶ 195; DSF at ¶ 13). The Club does not perform reference checks to verify previous exotic dancing experience. (DSF at ¶ 21). If the audition is successful, an entertainer must obtain an individual adult entertainment license specific to Onyx from the City of Atlanta (the “City”), before she may perform at the Club. (Id. at ¶ 15). The entertainer is responsible for paying the $350 per year cost of the license. (Id. at 21). Some entertainers perform at Onyx for more than a year, but Defendants contend that many have relatively short-lived relationships with the Club. 2 (DRPF at ¶ 197). WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 195 of 520 PageID 831 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 2 The following individuals worked at the Club for an extended period: Plaintiff Wells, sometime in 2006 through August 2009 (Deposition of Naturee Wells (“Wells Depo.”) at 15:5–17:11); Plaintiff Sales, mid to late 2008 until August 2009 (Deposition of Summer Sales (“Sales Depo.”) 28:5–29:2); Plaintiff Clincy, June 2007 to Fall 2010 (PSF at ¶ 200); Plaintiff Leaphart, June 2008 to present (Id. at 201); Plaintiff Pough, May 2008 to present (Id. at 202); Plaintiff Parker, latter half of 2008 to August 2009 (Id. at 203); Plaintiff Jordan, in 2006 and again from late 2007 to December 2009 (Jordan Depo. 25:23–34:1); Opt-in Plaintiff Judith Bloedoorn, October 2007 to July 2009 (PSF at ¶ 205); Opt-in Plaintiff Amber Jefferson, approximately two years (Id. at 206); Opt- in Plaintiff British Martin, approximately one year on two different occasions (Id. at 207); and Opt-in Plaintiff Torey Hughes, approximately one year (Id. at 209). IV. Working as an Entertainer at Onyx When an entertainer returns to Onyx after obtaining a current license from the City, she is given a “Dancer Packet,” which contains forms to review, complete and return to Club management. (DSF at ¶ 19). The packet includes, in part: (1) Defendant's Club Rules and Conduct for Contractors and Employees; (2) conduct in VIP Rooms; (3) Dancer Information Sheet; (4) Random Drug Test Consent Form; (5) Independent Contractor Agreement; (6) a document entitled “Wage Acknowledgment Regarding ‘Tip Credit’ ” (a document explaining nature of independent contractor relationship between Club Onyx and Dancers *1331 and explaining how Dancers would be compensated if they were classified as employees); [and] (7) Rules Recognition and Consent; ... (Id. at ¶ 20). Also, upon an entertainer's return with a valid license, the “house mom generally goes over the amounts entertainers are required to pay the disc jockey (“DJ”) and house mom with the entertainer and walks through the club's general expectations.” (Id. at ¶ 122 (emphasis added) 3 ). Onyx management has also asked entertainers to attend separate meetings to discuss Onyx's rules and policies, changes in City law, promotional events and the Club's decoration and furnishings. (Id. at ¶ 123). 3 Defendants do not object to the veracity of Plaintiffs' Fact # 122, but do object to other facts set forth in PSF on the ground that payment of fees to the DJ and house mom are not mandated, but suggested. The “Rules of Conduct for Contractors and Employees” (“RCCE”) is drafted and distributed by GSEC. (PSF at ¶ 118; Deposition of Dennis Williams, Feb. 3, 2010 (“Williams Depo.”), Ex. 9 (“RCCE”)). The rules are not always enforced as written, but Club management has discretion to enforce the rules as they deem fit and fine entertainers for violations. (Id. at ¶ 119; Adams Depo. 34:9–20). House moms are generally the individuals that document incidents that occur during their shift. (PSF at ¶ 132). One method sometimes utilized by management to track rules infractions, and as a method of disciplining entertainers, is a written notice of corrective action. (Id. at ¶¶ 128, 129). Anyone can notify the house mom of conduct by an entertainer that warrants corrective action, and the house mom may complete a written notice. (Id. at ¶ 133). Onyx management has discretion to impose fines in connection with a notice of corrective action, which are then generally collected by the house mom on the night they are imposed. (Id. at ¶¶ 130, 136, 137). In addition to fines for violating written rules, Club management may also fine entertainers for bringing in outside food, breaking the law, and arguing or fighting with customers. (Id. at ¶ 138). Management also has the authority to suspend entertainers for violating the rules, and Adams did so on three to four occasions. (Id. at ¶ 29; Adams Depo. at 60:2–6). A. Scheduling The first RCCE states: All entertainers will have expected performance days that they will be needed to work. If you are not able to perform for legitimate reasons, you are asked to call and speak only to your House-mom or Manager. WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 196 of 520 PageID 832 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 You will be subject to fines or other appropriate discipline for no call/no shows. (RCCE at ¶ 1). Entertainers sign up for shifts for the following week on a schedule posted in the management office, and management has completed notices of corrective action for entertainers who have failed to do so. (DSF at ¶ 49; PSF at ¶ 50). The parties dispute whether entertainers set their own schedules, select which days and nights they want to work, have discretion over how many days to work per week, and when they will arrive and leave for a shift. (DSF at ¶¶ 40, 48, 49; PRDF at ¶¶ 40, 48, 49). Swinger testified that “we need to know what days [entertainers] are available to come in. And we require or we would like for [entertainers] to make a four-day schedule.” (Swinger Depo. at 34:20–23). She also testified that the minimum number of days is three for some entertainers and four for others. (Id. at 33:18– 19). Hayes testified that a four-day schedule is requested, but not enforced. (Deposition of James R. Hayes (“Hayes *1332 Depo.”) at 25:13–15). However, Adams testified that entertainers are “required to work a minimum four days a week unless they have school. [In which case, w]e allow them to work three days.” (Adams Depo. at 92:13– 18). Whether or not there is a concrete rule as to the minimum number of nights that an entertainer must work each week, Pony Tail has admitted that some entertainers have been fined or otherwise disciplined for not working scheduled nights without calling ahead. (Dkt. [212–12] at 77; PRDF at ¶ 49). Plaintiff Sales testified that an entertainer could manipulate the schedule to work any four days she wanted—an assertion supported by the testimony of Plaintiff Clincy—but she was still required to work four days per week and would be fined if she did not. (Sales Depo. at 43:7–44:17; Deposition of Karenza Clincy (“Clincy Depo.”) at 45:17–21). Members of the Club's management testified that entertainers have been fined if they did not show up for a scheduled night without calling ahead or worked at another strip club when they were scheduled to work at Onyx. (Adams Depo. at 35:20–36:3; Hayes Depo. at 86:11–15). Additionally, management sometimes requires proof that an entertainer had obligations preventing her from working a scheduled shift. (PSF at ¶ 55). Also, there are some days over which entertainers do not appear to have discretion in regards to their schedule. Swinger testified that entertainers are asked to work a certain number of slow days—days on which the Club typically has lower attendance—and that management could determine whether an entertainer had met that requirement by referencing the sign-in sheet, and could impose a fine if an entertainer failed to meet the requirement. (Swinger Depo. at 73:2–11, 116:14–16). Adams also testified that Onyx required each dancer to work two slow days each month. (Adams Depo. at 36:16– 37:22). Also, there may be less flexibility in scheduling for new entertainers. (See PSF at ¶ 64 (Clincy required to work 30 days on mid-shift before being able to work nightshift); Wells Depo. at 26:6–17 (required to work four day-shifts per week for a month when first hired)). B. Preparing for a Shift When an entertainer arrives at the Club, she checks in with the house mom, who records her arrival time, and puts her name on the DJ list—a list by which entertainers are called by the DJ to perform on stage. (PSF at ¶ 70). Entertainers are urged to get dressed and on the floor within a reasonable amount of time and have been fined for not doing so. (Id. at ¶ 78). The house mom maintains the dressing room and ensures that the entertainers have what they need to prepare for their shift. (Swinger Depo. at 13:7–15). At the direction of management, the house mom has also talked to entertainers about changing their appearance—hair, makeup, etc.—to comply with management's desired appearance. (Id. at 52:12–53:2). Management has also directly instructed entertainers to make changes in their appearance and has taken disciplinary action for failure to comply. (See PSF at ¶ 84 (instructing entertainers to lose weight and written notice of corrective action for failure to do so), Hayes Depo. at 82:22–83:12 (Plaintiff Hayes told by management to lose weight and was limited to day shift until she did so; also told to change hairstyle and wear makeup to cover scar), PSF at ¶ 82 (Plaintiff Parker asked to change hairstyle); see also RCCE # 14 (“All entertainers must have hair done, nails and toenails painted, make-up on, costumes clean and in good condition and shoes (only high heels or stiletto platforms) clean and neat prior to the start of each shift....”) *1333 and RCCE # 15 (“Clean hygiene overall expected, Management will evaluate your appearance. Do not take it personally.”)). WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 197 of 520 PageID 833 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 C. Dancing and Making Money Once entertainers have signed in with the house mom, paid their bar fees, and gotten dressed, they go out on the main floor of the club to perform personal dances for customers or dance on stage. (PSF at ¶ 86). At 11 p.m. the stage rotation begins. (Id. at ¶ 87). During the rotation, entertainers dance on stage in groups of as many as five, depending on how many entertainers are working that night. (Id. at ¶ 89). Customers throw money on stage or hand money directly to entertainers while they are dancing. (Id. at ¶ 92). The general rule at the Club is that an entertainer on stage takes her top off when she receives $10, and takes off her bottom when she receives another $10. (Id. at ¶ 93). If there are five entertainers on stage and $100 or more has been thrown on stage, the DJ generally announces for all entertainers on stage to remove all their clothing. The Club's floormen gather up the money thrown on stage and give it to the entertainers who danced in the stage set to divide evenly. (Id. at ¶ 99). Dancers generally divide the tips evenly, which may be because it is the industry standard, or may be because it is mandated by Onyx. (DSF at ¶ 65; Hayes Depo. 58:18– 59:9; Swinger Depo. 53:15–21 (entertainers required to split tips evenly)). Disputes about how much stage money belongs to each entertainer are investigated and resolved by Onyx management. (PSF at ¶ 101; Hayes Depo. at 59:10–60:17). The parties dispute whether an entertainer may ignore a call to perform on stage. Adams testified that one of his responsibilities as a manager is to ensure that entertainers are on stage when the DJ calls them. (Adams Depo. at 9:9– 19). It appears that dancers may refuse to dance on stage when called, but may be fined for failing to do so, or for arriving on stage too late, or leaving too early. (DSF at ¶¶ 54, 55; PSF at ¶¶ 54, 55, 140; see also Deposition of Kimberly Jordan (“Jordan Depo.”) at 87:19–21 (fined for getting to stage too late)). Aside from dancing on stage, entertainers may also earn tips from the Club's customers by performing table-side dances and dances in the Club's VIP Rooms. (DSF at ¶ 42). The parties disagree over whether entertainers may set their own price for table-side dances. Defendants maintain that the amount a customer pays for a table-side dance is ultimately decided by the individual entertainer and the patron. (DSF at ¶ 30). However, Defendants also state that “the price of table or personal dances is set by industry custom in the relevant market. In the Atlanta market, the industry-wide rate for such dances is $10.00.” (Dkt. [212–12] at 91). One of the Rules set forth in the RCCE states that “[h]ouse dances are $10.00 ($20.00 in V.I.P. rooms).” (RCCE at ¶ 7). Further, Adams asserts in his declaration that entertainers do not have the ability to negotiate the price of table-side dances. (Dkt. [227] at ¶ 5) (“Dancers who perform at Club Onyx remain free to ... negotiate the rates for their entertainment services (with the exception of table dances, which dancers in the industry customarily charge $10.00 each) ...”). If a customer refuses to pay an entertainer for a table-side dance, the entertainer is supposed to inform a floorman and if management decides there is validity to the entertainer's claim they may pursue the customer for payment. (PSF at ¶ 159); see also RCCE at ¶ 7 (“Please get your money up front or else YOU risk not being paid!” (emphasis in original)). *1334 Onyx does not pay any wages to the entertainers that perform there. (DSF at ¶ 26). Rather, entertainers receive all payment directly from customers. Onyx provides customers with one-dollar bills or other small bills that they can use to tip the dancers. (Williams Depo. at 61:21–62:14). Onyx has run out of one-dollar bills to exchange with customers before. (PSF at ¶ 154). There is an ATM inside Onyx that customers can use to obtain cash. (Id. at ¶ 155). When it runs out of money it is the responsibility of Onyx's management to call the vendor to restock it. (Id.). D. Paying the Club While the Club does not make payments to the entertainers, there are fees that the entertainers pay to Onyx and or its employees. One fee that entertainers are required to pay each night in order to work is the “house fee” or “bar fee.” (Id. at ¶ 71). Entertainers are expected to pay this fee when they report to the house mom upon arriving at the Club for a shift. 4 (Id.). This fee schedule was established by Onyx and varies based upon the day of the week and time of arrival, with the fee increasing the later in the night a dancer arrives at the Club. (Id. at ¶ 72; DSF at ¶ 38). Regardless of time of arrival, the fee on Monday is $29, and on Wednesday is $45. (PSF at ¶ 72). On other nights the fee is: $45 if the entertainer arrives between 8 and 9 p.m.; $75 if the entertainer arrives between 9 and 10 p.m.; and $100 if the entertainer arrives between 10 and 11 p.m. (Id.). Management has sent home entertainers that arrived to work after 11 p.m. (Id. at ¶ WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 198 of 520 PageID 834 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 66; see also Id. at ¶ 67 (Plaintiff Clincy denied permission to arrive after 11 p.m.); Id. at ¶ 68 (Plaintiffs Leaphart and Wells told on some occasions on which they arrived after 11 p.m. that they could not dance that night); Id. at ¶ 69 (Plaintiff Parker sent home for arriving too late in the evening)). 4 The “bar fees” collected by Defendants is transmitted to LVA Management, a company controlled by Defendant Galardi. (Williams Depo.—Feb. 3 at 83:24–84:25). Entertainers also tip the DJ after each shift—either $20 or 10% of their gross receipts, whichever is greater. (DSF at ¶ 44). The amount paid to the DJ by each entertainer is tracked on a “DJ Fee Sheet.” (Williams Depo. at 95:6– 11). The payment was established by Onyx management, but the parties dispute whether it is required, as opposed to a payment that is voluntarily made at the end of each shift. (PSF at ¶¶ 109, 110; DRPF at ¶ 109). However, Club management has the discretion to fine entertainers if they believe an entertainer has not paid the DJ the full payment, and Swinger testified that entertainers get fined for not tipping enough to the DJ. (PSF at ¶ 111; Swinger Depo. at 116:7–9). Defendant Pony Tail admitted “having fined entertainers when an entertainer is suspected by Club Onyx Management of providing false information by under-reporting the amount of tips and dance fees she generated in a given night, and then under-reports the amount she is supposed to tip the DJ.” (Dkt. [212–12] at 78); see also Adams Depo. at 81:11–12 (“If an entertainer under reports, there is a fine because it is a form of theft.”). The DJ is required to give 40% of what he is paid by entertainers to the Club's management. (PSF at ¶ 112). Half of that amount is split amongst Onyx's management and half is forwarded to the corporate office. (Id.). Entertainers also tip the house mom at the end of a shift. (DSF at ¶ 45). Whether this payment is required is in dispute, but the customary amount is $7 for each entertainer. (PSF at ¶ 107; DRPF at ¶ 107). Adams testified that the entertainers have to tip the house mom a minimum *1335 of $7. (Adams Depo. at 80:11–15). Swinger testified that entertainers will not be disciplined for not tipping the house mom. (Swinger Depo. at 113:2– 18). The house mom keeps the entirety of the amount she collects from the entertainers. (PSF at ¶ 108). As a result of these payments to the Club, DJ, and house mom, on some shifts the dancers pay more than they earned performing, suffering a net loss for the night. (DSF at ¶ 69). Defendants assert that entertainers “pay Club Onyx to perform at one of Atlanta's hottest nightclubs, providing them [ ] both the forum and the opportunity to earn large sums of money performing for the Club's customers.” (DSF at ¶ 37). E. Check-out Procedure Before leaving for the night, entertainers are required to go through a check-out process, which includes taking a breathalyzer test to assess blood alcohol content, tipping the DJ, and tipping the house mom. (PSF at ¶ 105; Adams Depo. at 80:3–10; Hayes Depo. at 75:18–76:11). After taking the breathalyzer test, an entertainer receives an exit ticket from the house mom, which she then takes to the DJ. (Hayes Depo. at 75:18–76:11). The DJ signs off on the ticket after he has been paid and the entertainer signs a DJ fee sheet indicating how much she paid, and then the entertainer takes the ticket to the floor manager. (Id.; Williams Depo. at 95:6–11). Once this process has been completed and the parking lot has been cleared of customers, the entertainers are allowed to leave in small groups. (PSF at ¶¶ 115, 116). This measure is for the safety and security of the entertainers. (DRPF at ¶ 116). Entertainers may be fined for leaving early without checking out and management has taken corrective action against entertainers who do not complete the check-out process. (PSF at ¶ 103; Hayes Depo. at 53:7–16). V. Attracting Customers to the Club Decisions about marketing and promotions for the Club are made collectively with input from Williams, Kap, and GSE and GSEC's director of marketing, Jack Pepper. (PSF at ¶ 143). Pony Tail also contracts with other corporate entities to market Onyx. (Id. at ¶ 145). Entertainers are not consulted in making decisions as to how to market the Club. (Id. at ¶ 151). Dancers occasionally assist Onyx in promoting the club by handing out flyers. (DSF at ¶ 60). Additionally, some dancers may promote themselves on nights they are working through the use of Twitter. (DSF at ¶ 59; PRDF at ¶ 59). The Club has denied requests from entertainers to promote the Club by using the Club's van or on the radio. (PSF at ¶ 170). The parties dispute whether the presence of nude entertainers is a significant driver of the Club's business. Defendants argue that Onyx is popular because the Club satisfies a niche for a hip-hop urban club for African Americans. (Williams Depo. at 59:10–21). The Club regularly features appearances by rap and R & B WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 199 of 520 PageID 835 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 artists, and is frequented by sports and entertainment personalities. (DSF at ¶ 3). The Club also sells liquor by the bottle, which Defendants assert is distinctive. (Id. at ¶ 6). Defendants assert that many of the Club's customers do not frequent Onyx for the nude entertainment, but rather “come to Club Onyx simply to drink, dance, listen to music, watch sporting events, shoot pool, and have a good time in a hip, urban nightclub setting.” (DSF at ¶ 36) 5 ; see also Swinger Depo. at 46:19–22 *1336 (implying that half of the Club's customers are not there because of the entertainers—“we do have customers come for the girls. It is half and half.”). 5 Defendants' citations for this assertion do not support the statement that customers come to Onyx to dance, listen to music, watch sporting events, or shoot pool. Rather Hayes testified: “There are many customers that don't [receive] dance[s from] entertainers [ ]or tip them. They're there to drink and have a good time in a nightclub setting.” (Hayes Depo. at 69:14–16). In contrast to Defendants' assertions, Adams testified that he has never fired an entertainer because “[g]irls make the club busy. As far as if you don't have enough girls in the building, your customers won't stay, you know.” (Adams Depo. at 60:9–12). Similarly, Swinger testified that the Club “would like for [the entertainers] to get on the floor within an hour so [the Club] can keep some of the customers [ ] that are there to see the girls.” (Swinger Depo. at 21:23–22:2). Onyx management has called in additional entertainers to work on nights where there are many customers and only a few entertainers at the Club. (PSF at ¶ 219). Also, the Club has advertised in XCITEMENT, a magazine geared toward the adult entertainment industry. (Id. at ¶ 224). Further, in advertising the Club, Pepper chose to put scantily-clad women on a Club Onyx billboard because “[i]t represents beauty, kind of like Crest Toothpaste, nice smiles, inviting.” (Deposition of Jack Pepper (“Pepper Depo.”) at 26:15–19). He also believed that it conveyed to the public that Club Onyx is an adult entertainment nightclub. (Id. at 26:20–23). Defendants also maintain that “Club Onyx does not profit from the dancers; the dancers themselves do.” (Id. at ¶ 67). Plaintiffs contest this, arguing that “Defendants profit from entertainers' work at Onyx, for example, through the receipt of fines and fees, amounts entertainers tip the DJ, and the presence of customers on whom Onyx can impose door fees and drink minimums.” 6 (PRDF at ¶ 67). While the general ledgers produced in this action do not reflect the amount of money paid to Defendants from the amount collected by the DJ, or the amount paid to the Club through fines, it appears that the largest portion of the Club's revenue comes from the sale of alcohol to customers. (Accounting Ledger, Ex. 21, Affidavit of Anna P. Prakash, Dkt. [212–21] ). 6 To enter the Club, customers must pay a door fee of between $10 and $40, and there is a two drink minimum for customers. (PSF at ¶¶ 156, 160). VI. Defendants' and Plaintiffs' Relative Investments and Control Defendant Pony Tail leases the premises where Onyx is located and has admitted to owning and controlling the Club. (Id. at ¶¶ 172, 173). Club management and Defendants control: decisions regarding the advertising and marketing of the Club; selection and pricing of food and drinks; music selection; club layout, amenities, and lighting; hiring of wait staff and security; the amount of the cover charge; and the overall atmosphere of the Club. (PSF at ¶¶ 164, 147–150; DRPF at ¶ 164). Defendants contend that Onyx “exercises only a slight degree of control over its dancers,” and that they remain free to make decisions concerning, among other things, their appearance, their schedule, and their work outside of the Club. (Dkt. [227] at ¶ 5). The named Plaintiffs have not made any capital investments in the facilities, advertising, maintenance, sound system, lights, food, beverage, other inventory, or staffing efforts undertaken on behalf of the Club and were not consulted regarding the same. (PSF at ¶ 171). Defendants, citing the depositions of Plaintiffs Clincy, Leaphart, and Parker, maintain that “[d]ancers *1337 spend large sums of money selecting and purchasing their own costumes, shoes, cosmetics, hair and nails.” (DSF at ¶ 47). Clincy testified that she spent approximately: $1200–$2300 a month having her hair styled; $3,000–$4,000 a year on costumes; $2,000– $3,000 a year on props; $4,000–$5,000 a year on shoes; $7,000 a year on makeup; and $2,000–$3,000 a year on nails. (Clincy Depo. at 89:24–90:18, 107:25–109:22). Plaintiff Leaphart typically spent approximately: $65– $200 per costume on one or more costumes each month; $80–$200 for shoes occasionally; $175 per month on personal grooming; and $100–$500 per month on hair. (Leaphart Depo at 84:6–88:12). Parker testified that she paid approximately $40–$150 per costume. WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 200 of 520 PageID 836 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 (Parker Depo. at 163:4–13). Plaintiffs maintain that these expenditure are not large in comparison to the expenses of operating the Club. (PRDF at ¶ 47). From 2007 to 2009, the Club's expenses for equipment, furniture and fixtures, leasehold improvements, advertising, property and liability insurance, rent, set design, building maintenance and repairs, alcohol and other drinks, licenses and permits, and music averaged approximately $900,000 per year. (Accounting Ledger, Ex. 21, Affidavit of Anna P. Prakash, Dkt. [212–21] ). Discussion I. Defendants' Objection to Plaintiffs' Late–Filed Consent Forms [271] The Court conditionally certified the FLSA collective action in this case, approving a 60–day notice period for individuals to opt in by filing consent forms with the Court. (Dkt. [147] ). Notice was initially mailed on August 30, 2010, resulting in an October 29, 2010 deadline for opt-in plaintiffs. Plaintiffs' Counsel received two consent forms after this date. One from Najila Harris on November 3, 2010 (Dkt. [247] ), and another from Brezzy Hurst on November 9, 2010 (Dkt. [267] ). Defendants object to the late-filed consent forms and argue that Harris and Hurst should not be included in the collective. In light of the circumstances that delayed both Harris and Hurst in receiving notice of this action and their submission of the consent forms within 10 days of the deadline, as well as interests of judicial economy and in recognition of the remedial purposes of the FLSA, the Court will allow the inclusion of both Harris and Hurst in the collective. Defendants' Objection [271] is OVERRULED. II. Motions for Summary Judgment [211, 218] A. Standard for Summary Judgment Federal Rule of Civil Procedure 56 requires that summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party “bears ‘the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). *1338 The applicable substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249–50, 106 S.Ct. 2505. In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). But, the court is bound only to draw those inferences which are reasonable. “Where the record taken as a whole could not lead a rational trier of fact to find for the non- moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (internal citations omitted); see also Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 (explaining that once the moving party has met its burden under Rule 56, the nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts”). B. Determining Whether a Worker is an Employee under the FLSA [1] The requirements of the Fair Labor Standards Act (“FLSA” or “Act”), 29 U.S.C. §§ 201–219, apply only to employees. Freund v. Hi–Tech Satellite, Inc., 185 Fed.Appx. 782, 782 (11th Cir.2006). The Act defines an “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). It in turn defines “to employ” as “to suffer or permit to work,” 29 U.S.C. § 203(g), and an “employer” as “any person acting ... in the interest of an employer in relation to WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 201 of 520 PageID 837 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 an employee,” 29 U.S.C. § 203(d). Given the circuitous nature of these definitions the critical question is what does it mean “to suffer or permit to work.” The answer to this question is not found in the Act, because it fails to define the term. Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 654 (10th Cir.1988). Plaintiffs assert that “Courts determine whether an employer/employee relationship exists by examining the ‘economic realities' of the relationship between the putative employee and putative employer.” (Dkt. [211–1] at 4, citing Perdomo v. Ask 4 Realty & Mgmt., Inc., 298 Fed.Appx. 820, 821 (11th Cir.2008); Freund, 185 Fed.Appx. at 782). Defendants do not dispute that this is part of the analysis, but rather argue that there is an antecedent question that must be answered before examining the economic reality of the relationship. (Dkt. [218–1] at 15). For the reasons discussed below, the Court rejects Defendants' argument for the application of an antecedent question. The Court then examines the economic realities of the relationship between the entertainers and Onyx. i. There is no antecedent question to the economic realities test. [2] Defendants argue that at a minimum each Plaintiff must establish that she is a putative “employee.” (Dkt. [218–1] at 15, citing Benshoff v. City of Va. Beach, 180 F.3d 136, 140 (4th Cir.1999)). Defendants argue that while the statutory definition of “employee” is broad, it is not intended to cover individuals who without any agreement for compensation work for their advantage on another's premises. (Id. at 16). Defendants argue that certain courts have “incorrectly allow[ed] exotic dancer plaintiffs to avoid their statutory *1339 burden of proving they fall within an FLSA ‘employee’ category, [by proceeding] immediately into an analysis of the facts under the ‘economic realities' test, that applies only to putative ‘employees.’ ” (Id., citing Benshoff, 180 F.3d at 140). However, the Supreme Court has noted that “[t]he test of employment under the Act is one of ‘economic reality.’ ” Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 301, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (citing Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961)). Additionally, Defendants have failed to cite any factually analogous binding case law that makes such an antecedent determination a precursor to the application of the economic realities test. The Supreme Court has stated that “[t]he definition ‘suffer or permit to work’ was obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another.” Walling v. Portland Terminal Co., 330 U.S. 148, 152, 67 S.Ct. 639, 91 L.Ed. 809 (1947). The Court in Walling acknowledged the breadth of the definitions of “employ” and “employee,” but noted that “broad as they are, they cannot be interpreted so as to make a person whose work serves only his own interest an employee of another person who gives him aid and instruction.” Id. At issue in Walling was whether a training course provided by the defendant railroads to prospective yard brakemen without pay or allowance constituted employment such that the trainees should have received compensation. Id. at 149–150, 67 S.Ct. 639. Under the program, the trainee first learns the routine activities by observation, and is then gradually permitted to do actual work under close scrutiny. His activities do not displace any of the regular employees, who do most of the work themselves, and must stand immediately by to supervise whatever the trainees do. The applicant's work does not expedite the company business, but may, and sometimes does, actually impede and retard it. Id. If the trainee successfully completes the seven to eight day course, his name is added to a list of individuals qualified to be hired by the railroad as a brakeman when the need arises. Id. The Court, “[a]ccepting the unchallenged findings here that the railroads receive no ‘immediate advantage’ from any work done by the trainees, [held] that they [were] not employees within the Act's meaning.” Id. at 153, 67 S.Ct. 639. Even assuming that the analysis applied by the Supreme Court in Walling to determine whether the trainees were employees is separate and distinct from an analysis of the economic reality of the relationship or represents an antecedent question to an analysis of economic reality, WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 202 of 520 PageID 838 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 that analysis applied to the facts of this action would result in a finding that the entertainers are employees of Onyx. The Court's findings included: that the trainee's work “serves only his own interest;” that “[t]he applicant's work does not expedite the company business, but may, and sometimes does, actually impede and retard it;” and that “the railroads receive no ‘immediate advantage’ from any work done by the trainees.” Id. at 149–150, 153, 67 S.Ct. 639. The relationship between the railroads and trainees in Walling does not resemble the relationship between entertainers and Onyx. Defendants attempt to argue that they receive no benefit from the presence of entertainers, stating that “Club Onyx does not profit from the dancers; the dancers themselves do.” (Id. at ¶ 67). No reasonable juror examining the record as a whole would believe that Defendants' statement matches reality. *1340 First, there is no dispute that when dancers arrive at the Club they are required to pay a “house fee.” This house fee, collected by the Club, is then transmitted to LVA Management, a company controlled by Defendant Galardi. (Williams Depo. at 83:24–84:25). In 2008 and 2009, the amount paid to LVA management averaged approximately $94,000 each year. (Accounting Ledger, Ex. 21, Affidavit of Anna P. Prakash, Dkt. [212–21] ). Second, at the end of the night entertainers pay a portion of the money they received that night to the DJ, who in turn submits 40% of that money to Club management, who in turn submits 50% of the funds received from the DJ directly to either one of the corporate Defendants or another entity controlled by Defendant Galardi. 7 Third, even if a minority of the Club's customers attend because of the presence of nude entertainment, those customers represent revenue to the Club through door fees and alcohol sales. 8 To believe Defendants' statement that “Club Onyx does not profit from the dancers,” would require a juror to believe that the Club's profit would be the same regardless of whether the Club had any nude entertainment. 9 The record presents no logical path to such a conclusion. 7 If entertainers give the DJ 10% of their proceeds for the night, half of 40% of which is then transferred to Defendants, Defendants directly receive 2% of the money earned by entertainers each night. Even if this were the only benefit Defendants' received as a result of having entertainers at the Club, it constitutes an immediate benefit to Defendants, which was absent in Walling. 8 Given the testimony and actions of the Club's management, the testimony of one of its house moms, and its marketing efforts, see supra at 19–20, no reasonable juror would conclude that the presence of nude entertainment does not represent an immediate benefit to the Club. 9 A reasonable juror might then wonder why the Club even has nude entertainment, the presence of which subjects it to additional local ordinances. Defendants' reliance on two Eleventh Circuit cases is also unavailing. The first, Villarreal v. Woodham, 113 F.3d 202 (11th Cir.1997), addresses whether a pretrial detainee who was required to perform translation services for other inmates, medical personnel, and court personnel is an employee under the FLSA. The Eleventh Circuit noted that “[i]n general, work constitutes employment when there is an expectation of in-kind benefits in exchange for services.” Id. at 205 (citing Tony & Susan Alamo Found., 471 U.S. at 301, 303–04, 105 S.Ct. 1953). However, in determining whether the pretrial detainee was an employee, the Court examined the economic reality of the work relationship. Id. at 205–07. The Court found that the pretrial detainee was removed from the national economy and therefore was in a custodial relationship, not an employment relationship. Id. at 207. The relationship between Onyx and the entertainers that work there does not resemble that of a pretrial detainee. Villarreal provides no support for finding that the entertainers at Onyx are not employees. The second Eleventh Circuit case upon which Defendants rely is Patel v. Wargo, 803 F.2d 632 (11th Cir.1986). In that case, the Court faced the question of whether an individual who does work for an entity affiliated with his employer is also an employee of the affiliated entity. Id. at 634– 35. The plaintiff worked primarily for his employer and “only occasionally did he perform tasks for [the affiliated entity].” Id. at 635. The Court found that “[t]he few acts he did for [the affiliated entity], he did ... as a volunteer, as an accommodation to his own employer, and not truly *1341 as an employee of the affiliated entity.” Id. The Court held that “[t]he evidence does not demonstrate that [the plaintiff] contemplated compensation for his acts, ... nor does it demonstrate as a matter of economic reality that [the plaintiff] was dependent upon [the affiliated entity].” Id. (citations omitted). In the present action WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 203 of 520 PageID 839 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 the entertainers did not perform at Onyx without the expectation of compensation. While they did not receive compensation directly from Onyx, their compensation from customers was dependent upon the Club's operation. The facts of the present action do not resemble those of Patel where an employee of one company did a few discrete tasks for a related company, and the case does not support the conclusion that the entertainers in the present action are not employees of Onyx. Defendants reliance on O'Connor v. Davis, 126 F.3d 112 (2d Cir.1997), and Graves v. Womens Prof'l Rodeo Ass'n, 907 F.2d 71 (8th Cir.1990), is also unavailing. First, neither case arises under the FLSA. 10 See O'Connor, 126 F.3d at 113 (asserting sexual harassment claims brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e–17 (“Title VII”) and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688); Graves, 907 F.2d at 71 (asserting gender discrimination claim pursuant to Title VII). Second, the facts of neither case are analogous. The claims of the plaintiff in O'Connor arise out of an internship at which her college placed her as a requirement for her major. 126 F.3d at 113. In Graves, a male plaintiff brought suit against the Women's Professional Rodeo Association (“WPRA”) for denying him membership on the basis of his gender, claiming that the WPRA was an employer, and its members were its employees. 907 F.2d at 71. Third, while both courts state that the “economic realities” test should be applied “only in situations that plausibly approximate an employment relationship” and found that no employer- employee relationship existed by relying, in part, upon the absence of compensation to the plaintiffs, neither court's analysis supports Defendants' contention that the entertainers are not employees. O'Connor, 126 F.3d at 115–16; Graves, 907 F.2d at 74. 10 The Second Circuit in O'Connor stated “that when Congress uses the term ‘employee’ without defining it with precision, courts should presume that Congress had in mind “the conventional master- servant relationship as understood by the common- law agency doctrine.” ” 126 F.3d at 115. “But in determining who are “employees” under the [FLSA], common law employee categories or employer- employee classifications under other statutes are not of controlling significance.” Walling, 330 U.S. at 150, 67 S.Ct. 639 (citation omitted); see also Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996) (citation omitted) (“In defining ‘employment’ under [the FLSA], Congress expressly rejected the common- law definition of employment, which is based on limiting concepts of control and supervision.”). The Second Circuit stated: We believe that the preliminary question of remuneration is dispositive in this case. It is uncontested that O'Connor received from Rockland no salary or other wages, and no employee benefits such as health insurance, vacation, or sick pay, nor was she promised any such compensation. This case thus differs from Haavistola v. Community Fire Co., in which the Fourth Circuit considered whether a volunteer member of a fire company was an employee for Title VII purposes where “[o]n the one hand, [plaintiff] did not receive direct compensation as a member of the Fire Company, but, on the other hand, she did not affiliate with the company without reward entirely.” 6 F.3d 211, 221 (4th Cir.1993). The court then noted that *1342 the plaintiff received, through her volunteer position, a state-funded disability pension, survivors' benefits for dependents, scholarships for dependents upon death or disability, group life insurance, and several other benefits. See id. The court concluded that the district court granted summary judgment improvidently, given that a factfinder should determine whether “the benefits represent indirect but significant remuneration ... or inconsequential incidents of an otherwise gratuitous relationship.” Id. at 222. Because the absence of either direct or indirect economic remuneration or the promise thereof is undisputed in this case, we agree with the district court that O'Connor was not a Rockland employee within the meaning of Title VII and thus that her discrimination claim under that statute must fail. O'Connor, 126 F.3d at 116 (emphasis added and footnote omitted). Defendants argue that Plaintiffs receive no direct compensation from them, but that is not the dispositive question in O'Connor. The Second Circuit noted that there was an absence of “direct or indirect economic remuneration.” Id. The entertainers that work at Onyx have no expectation of compensation from Defendants, but they do expect to be indirectly compensated by the Club's customers. Like the plaintiff in Haavistola, entertainers “[do] not affiliate with the [Club] without reward entirely.” 6 F.3d at 221. Defendants acknowledge as much, asserting that entertainers “pay Club Onyx to perform at one of Atlanta's hottest WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 204 of 520 PageID 840 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 nightclubs, providing them [ ] both the forum and the opportunity to earn large sums of money performing for the Club's customers.” (DSF at ¶ 37; see also DSF at ¶ 70 (“Plaintiffs each earn a considerable amount of money performing at Club Onyx.”)). Even assuming that the Second Circuit's analysis, of whether an expectation of remuneration is present prior to examining the economic reality of the relationship in the Title VII context, is applicable to the FLSA, the entertainers' expectation of indirect compensation satisfies this test. The analysis of the Eighth Circuit in Graves is similarly unhelpful to Defendants. The Eighth Circuit noted that “the absence of any compensation flowing to WPRA members by reason of their membership, together with the absence of any duty of service owed by members to WPRA or anyone else, suffices to exclude WPRA from being an ‘employer’ of its members under Title VII.” 907 F.2d at 74. As noted above, Plaintiffs are compensated by reason of their work as entertainers and in order to receive this compensation they provide services to the Club and its customers. The Court does not find that any of the aforementioned cases require a determination of whether an individual is an “employee,” before, or separate and apart from, examining the economic reality of the work relationship under the FLSA. Even assuming that the Court must determine whether an individual is an “employee” under the FLSA prior to applying the “economic realities” test, none of the cases cited by Defendants support a conclusion that the entertainers are not employees of Onyx. C. Applying the Economic Realities Test [3] [4] [5] [6] Whether an entity is an employer within the meaning of the FLSA is a legal question, with subsidiary findings considered issues of fact. Patel, 803 F.2d at 634, 634 n. 1; Villarreal, 113 F.3d at 205. “The test of employment under the Act is one of ‘economic reality.’ ” *1343 Tony and Susan Alamo Found., 471 U.S. at 301, 105 S.Ct. 1953 (citation omitted). Several factors guide the inquiry into whether an individual is an employee or independent contractor, including: (1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; (6) the extent to which the service rendered is an integral part of the alleged employer's business. Freund, 185 Fed.Appx. at 783 (citing Sec'y of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir.1987)). “No one factor is determinative, and each factor should be given weight according to how much light it sheds on the nature of the economic dependence of the putative employee on the employer.” Perdomo, 298 Fed.Appx. at 821 (citing Antenor, 88 F.3d at 928–33); see also Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir.1976) (“No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor-economic dependence.”); Benshoff, 180 F.3d at 141 (“ ‘[t]he employer-employee relationship does not lend itself to rigid per se definitions, but depends upon the circumstances of the whole activity.’ ” (quoting Reich v. ConAgra, Inc., 987 F.2d 1357, 1361 (8th Cir.1993))). Before embarking on an examination of the factors set forth above as applicable to the facts of this action, the Court notes that several courts have addressed the question of whether a nude dancer is an employee under the FLSA, and “[w]ithout exception, these courts have found an employment relationship and required the nightclub to pay its dancers a minimum wage.” Harrell v. Diamond A Entm't, Inc., 992 F.Supp. 1343, 1347–48 (M.D.Fla.1997) (citing e.g. Reich v. Circle C. Invs., Inc., 998 F.2d 324 (5th Cir.1993) (finding dancers are employees under the FLSA); Reich v. Priba Corp., 890 F.Supp. 586 (N.D.Tex.1995) (same); Martin v. Priba Corp., 1992 WL 486911 (N.D.Tex. Nov.6, 1992) (same)); see also Morse v. Mer Corp., No. 1:08–cv–1389–WLT– JMS, 2010 WL 2346334 (S.D.Ind. June 4, 2010) (same); Jeffcoat v. Alaska Dep't of Labor, 732 P.2d 1073 (Alaska 1987) (finding entertainers to be employees under state WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 205 of 520 PageID 841 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 labor laws based on FLSA); Doe v. Cin–Lan, Inc., No. 08– cv–12719, 2008 WL 4960170 (E.D.Mich. Nov. 20, 2008) (granting entertainer's motion for preliminary injunction, holding that entertainer was substantially likely to succeed on claim that she is an employee under FLSA). i. Nature and degree of control. [7] Plaintiffs contend that Defendants' control over entertainers' work starts from the moment an entertainer is hired, carries through nearly every aspect of work until employment is terminated, and dictates the most meaningful aspects of an entertainers' work such as how entertainers should look, exactly when and how entertainers will remove their clothing, when and how they will dance, and how much they will charge for their services. (Dkt. [211–1] at 7). Defendants respond that: The evidence in this case shows that Plaintiffs, not Club Onyx, control the most meaningful parts of their dancing *1344 careers: when and how they dance, for whom they perform, their appearance, their income, manner of dance, and when they come-and-go from the Club. The few conditions identified by Plaintiffs as beyond their control are also beyond Club Onyx's complete control, and are mandated not by the Club itself, but instead by State law and municipal ordinance. (Dkt. [257] at 7). Defendants note that the State of Georgia and the City: control what types of activities can and cannot occur in the Club; control which permits and licenses dancers and club owners must have; control what hours the Club can legally be open for business; and impose a duty to reasonably monitor entertainers, such that they do not drive away from the Club intoxicated. (Id. at 7–10). Defendants also argue that entertainers “are not required to adhere to written rules of conduct, and Club Onyx does not enforce its advisory rules by disciplining its dancers.” (Id. at 11). Defendants' arguments are unavailing. [8] “An employer cannot saddle a worker with the status of independent contractor, thereby relieving itself of its duties under the F.L.S.A., by granting him some legal powers where the economic reality is that the worker is not and never has been independently in the business which the employer would have him operate.” Mednick v. Albert Enters., Inc., 508 F.2d 297, 303 (5th Cir.1975). As another court in this Circuit examining the same issue that is now before the Court noted: The mere fact that [the club] has delegated a measure of discretion to its dancers does not necessarily mean that its dancers are elevated to the status of independent contractors. Indeed, one could say that the nature of a dancer's job requires some measure of discretion and flexibility. 11 The question this Court must resolve is whether a ... dancer's freedom to work when she wants and for whomever she wants reflects economic independence, or whether these freedoms merely mask the economic reality of dependence. 11 Footnote in original: For example, in 303 West 42nd St. Enters., Inc., 916 F.Supp. 349, the Southern District of New York found that certain “fantasy booth” performers were employees (rather than independent contractors), notwithstanding the freedom a performer had to strike her own deals with her customers: Once inside the booth, it may seem, upon first glance, as if fantasy booth performers control WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 206 of 520 PageID 842 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 16 the work by negotiating prices and performing in private. However, it must be remembered that Show World's product is adult entertainment. The only way to put forth the product is by the use of the human figure. The presence of the individual is essential for the distribution of the product. One of the distinguishing characteristics of the services that booth performers provide is that the particular fantasy is narrowly tailored to the individual customer's needs and preferences. In this respect it may be likened to the services provided by a home health care provider who tailors her routine to the needs of the patient. Similarly, it may be likened to the stage dancer at an adult club who structures her routine so as to please the specific audience. Despite the individuality exercised in her performance of these services, for the purposes of employment taxes, both the health care provider and the stage dancer are employees. Id. at 362 (citations omitted). Harrell, 992 F.Supp. at 1349 n. 8. Harrell, 992 F.Supp. at 1349. Upon an entertainer's return to the Club with a valid license an entertainer is given a packet, which includes among other things, Defendants' rules of conduct. (See RCCE). The rules cover, among other things: scheduling; conduct regarding dancing on stage; dress and appearance; and the cost of table-side and VIP dances. (Id.). Defendants maintain that “Club Onyx does not enforce any rules except *1345 only those which bear directly on the dancers' safety and compliance with the law.” (Dkt. [257] at 13). It appears from the record that while the rules may not be enforced consistently or uniformly, the Club's management has the authority to fine or otherwise discipline entertainers for not complying with the rules, and has done so. (See e.g., Adams Depo. at 34:9–11 (testifying that during the time he has been a manager, he has always had the authority to fine entertainers); Dkt. [212–12] at 77 (“Defendant Pony Tail, Inc. admits only that it has fined entertainers who do not call or show for their self- selected shifts ....”); Adams Depo. at 92:13–18 (stating entertainers are “required to work a minimum of four days a week unless they have school ....”); Hayes Depo. at 86:11–15 (stating that management has fined entertainer for working at another club if that work was during time they were scheduled to work at Onyx); Swinger Depo. 53:15–21 (entertainers required to split stage tips evenly); Adams Depo. at 9:9–19 (stating one of manager's responsibilities is to ensure that entertainers are on stage when called); Adams Declaration, Dkt. [227] at ¶ 5 (stating entertainers do not have ability to negotiate price of table- side dance); Dkt. [212–12] at 78 (Defendant Pony Tail admitting “having fined entertainers when an entertainer is suspected by Club Onyx Management of ... under- report[ing]the amount she is supposed to tip the DJ”); Adams Depo. at 81:11–12 (stating that an entertainer that under reports the amount of money made each shift, by which the amount paid to the DJ is calculated, is committing theft); Adams Depo. at 60:2–6 (stating he has suspended entertainers on three or four occasions)). There is some evidence to the contrary, but not such that a reasonable juror examining the record as a whole, particularly the testimony of the Club's management, could conclude that the Club does not, or has not, enforced its rules. Further, rules as to the cost of dances, scheduling shifts, and tipping the DJ, among others, have nothing to do with state laws or local ordinances. The Court finds that based upon the totality of the record Defendants exercise a significant amount of control over the entertainers, and that this factor ways in favor of finding an employer-employee relationship. ii. Opportunity for profit or loss. [9] Defendants argue that Plaintiffs' opportunity to profit is largely a product of their own initiative, resulting from when and how often they choose to work, their conduct at work, and is “directly related to advertising, marketing, and promotion over which they have considerable control.” (Dkt. [259] at 23–24). The Court is not aware of any decision in which a court found that an exotic dancer has significant control over her opportunity for profit or loss relative to the club at which she works. Several courts, however, have rejected this argument. See e.g., Circle C, 998 F.2d at 328 (noting that defendant “has a significant role in drawing customers to its nightclubs. The district court recognized that Circle C is responsible for advertisement, location, business hours, maintenance of facilities, aesthetics, and inventory of beverages and food.”); Morse, 2010 WL 2346334, at *4 (“The Defendant also emphasizes that the Plaintiffs were allowed to advertise and market themselves by using MySpace, Facebook, and simple word of mouth ... This may be true, but the simple fact remains that, like the club in Circle C, the Defendant WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 207 of 520 PageID 843 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 17 is primarily responsible for drawing customers into the club” (citation omitted)); Priba Corp., 890 F.Supp. at 593 (“entertainers do not control the key determinants of profit and loss of a successful enterprise .... the club establishes the hours of operation, *1346 sets the atmosphere, and coordinates advertising .... Any profit to the entertainers is more analogous to earned wages than a return for risk on capital investment.”). 12 Similarly, in the present action, Defendants are primarily responsible for attracting customers to the Club, as decisions about marketing and promotions for the Club, its location, its maintenance, aesthetics, and atmosphere, and food and alcohol availability and pricing are made by Defendants and/or their employees, not the entertainers. (PSF at ¶¶ 143, 147–151, 164). 12 See also Harrell, 992 F.Supp. at 1350, 1352: Defendant argues that Plaintiff's income was solely and completely dependant upon her initiative. Plaintiff performed “rounds” to obtain tips and to solicit table dances (an activity called “hustling” in the industry). ... The “hustling” argument has been universally rejected by every court to consider it. ... That a dancer may increase her earnings by increased “hustling” matters little. As is the case with the zealous waiter at a fancy, four star restaurant, a dancer's stake, her take and the control she exercises over each of these are limited by the bounds of good service; ultimately, it is the restaurant that takes the risks and reaps the returns. Defendants also argue that because there are nights on which dancers suffer an effective net loss as a result of fees paid to the Club, entertainers cannot be considered employees. (Dkt. [259] at 25). However, as other courts have found, the risk of loss is much greater for the Club than it is for an entertainer. See Morse, 2010 WL 2346334, at *4 (“a Plaintiff's only ‘opportunity for loss comes in the form of a ‘House Fee’ that she is required to pay for each shift .... ‘All other potential risks of loss, be they food and beverage related or liability-related, are borne solely by [the club].’ ”); Harrell, 992 F.Supp. at 1352 (“A dancer at [the club] risks little more than a daily “tip out” fee, the cost of her costumes, and her time .... ultimately, it is the [club] that takes the risks and reaps the returns.”); Priba Corp., 890 F.Supp. at 593 (“The extent of the risk that entertainers are confronted with is the loss of the “tip out” fee paid each shift. [The club], not the entertainers, shoulders the greatest risk of loss.”). The second factor weighs in favor of finding an employer- employee relationship between the Club and Plaintiffs. iii. Relative investment. [10] Defendants argue that their investment in exotic dancing pales in comparison to that of Plaintiffs, as “the Club's only direct investment in their exotic dancing work are the stage and poles on which they dance .... The remaining investments, for facilities, maintenance, repairs, liquor licenses, and food would exist whether or not Plaintiffs performed at Club Onyx,” [and therefore,] “should not be considered in the Court's analysis of the parties' relevant degree of investment.” (Dkt. [259] at 26). Again, Defendants do not cite a single case in which a court has accepted this line of reasoning, but there are several that have rejected it. See e.g., Circle C, 998 F.2d at 324 (“The fact that the district court did not make specific findings regarding Circle C's investment does not detract from our analysis given the obvious significant investment Circle C has in operating a nightclub. The record does not completely identify Circle C's investment, but it does reveal that Circle C owns the liquor license, owns the inventory of beverages and refreshments, leases fixtures for the nightclub (e.g., the stage and lights), owns sound equipment and music, maintains and renovates the facilities, and *1347 advertises extensively).”; Morse, 2010 WL 2346334, at *5 (“The instant case is markedly similar to Circle C. The Plaintiffs ‘do not make any capital investment in Defendant's facilities, advertising, maintenance, security, staff, sound system and lights, food, beverage, and other inventory.’ ... The Plaintiffs' only investment is in their costumes and their general appearance (i.e. hair, makeup, and nails).... Thus, as in Circle C, this factor tips in favor of employee status.”); Harrell, 992 F.Supp. at 1350 (“Defendant fails to mention, however, any of the undoubtedly material expenditures (for advertising, facilities, maintenance, etc.) made by [the club]. The courts which have addressed this factor have universally concluded that a dancer's investment is minor when compared to the club's investment.” (citations omitted); Priba Corp., 890 F.Supp. at 593 (“Entertainers at the club make no investment in its facilities or atmosphere aside from choosing what clothing to wear when performing. All investment and risk capital is WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 208 of 520 PageID 844 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 18 provided by defendants. Indeed, but for defendants' provision of the lavish work environment, the entertainers at the club likely would earn nothing.”). From 2007–2009, the cost of equipment, fixtures, leasehold improvement, advertising, property and liability insurance, rent, set design, maintenance and repair, alcohol and other drinks, licenses, and music for the Club was on average approximately $900,000 a year. (Accounting Ledger, Ex. 21, Affidavit of Anna P. Prakash, Dkt. [212–21] ). In comparison, if one takes the high end of Plaintiff Clincy's estimates for her annual spending related to hair, costumes, props, shoes, makeup, and nails, the total is around $50,000. 13 While this is a significant amount, it is does not exceed the Club's investments as Defendants assert. 14 Further, it appears that Clincy's spending may be an outlier. In comparison, the other two individuals that Defendants rely upon for the assertion that entertainers invest large sums of money spend considerably less. It appears that Plaintiff Leaphart spends, on the high end, approximately $14,000 per year on her costumes, shoes, personal grooming, and hair. 15 The portion of Plaintiff Parker's testimony upon which Defendants rely indicates only that she spends approximately $40–$150 per costume. The Court finds that Plaintiffs' investment in exotic dancing is small in comparison to Defendants' investment in the Club, and this factor weighs in favor of finding an employer- employee relationship. (See supra at 21–22). 13 The Court used the following figures in calculating the total: hair ($2,300/month); costumes ($4,000/year); props ($3,000/year); shoes ($5,000/year); makeup ($7,000/year); and nails ($3,000/year). (Clincy Depo. at 89:24–90:18, 107:25–109:22). 14 See Harrell v. Diamond A Entm't, Inc., 992 F.Supp. 1343, 1347–48 (M.D.Fla.1997) (“Defendant would have us believe that a dancer ... could hang out her own shingle, pay nothing in overhead,—no advertising, no facilities, no bouncers,—and draw in a constant stream of paying customers.”) 15 The Court used the following figures, erring on the side of greater spending, in calculating the total: costumes ($400/month); shoes ($1,000/year); personal grooming ($175/month); hair ($500/month). (Leaphart Depo. at 84:6–88:12). iv. Necessity of special skill. [11] Defendants argue that “[t]he evidence in this case affirmatively shows that Club Onyx dancers, including Plaintiffs, are skilled, and come to perform at Club Onyx with prior experience performing exotic dancing at other clubs.” (Dkt. [259] at 29 (citations omitted)). Plaintiffs contend that the primary requirement for being a dancer at *1348 Onyx “is appearance, not skill.” (Dkt. [211–1] at 19). Defendants prefer dancers with prior exotic dancing experience, but there is no requirement for past experience or formal training. (See supra at 4–5). Nonetheless, in addition to a “body check,” applicants do audition by dancing to two or three songs. (DSF at ¶ 12). The applicant is evaluated on how she moves on stage, her rhythm, her perceived experience dancing naked and eye contact. (PSF at ¶ 194). The court in Harrell found that “Defendant's argument regarding skill is equally uncompelling ... There were no dance seminars, no instruction booklets, and no choreography whatsoever.” 992 F.Supp. at 1351. Similarly, the Club did not provide Plaintiffs with dance instruction or choreography. While Defendants may have preferred prior exotic dancing experience, it hired several entertainers that lacked such experience. (See Dkt. [253–1, 253–2, 253–3, 253–4, 253– 6, 253–7, 253–8] at ¶ 11 (indicating that entertainers did not have prior dancing experience at other clubs); see also Circle C, 998 F.2d at 328 (finding that many of the club's dancers had never before worked as a nude entertainer and that dancers “do not need long training or highly developed skills”)). While applicants had to dance as part of the audition process, the same was true in Morse, in which the court found that exotic dancing did not require special skills. 2010 WL 2346334 at *1, *4. Examining the record as a whole, the Court finds that special skills are not required to perform as an entertainer at Onyx, and this factor weighs in favor of finding an employer-employee relationship between the Club and Plaintiffs. v. Permanency of working relationship. Other courts have found, and Plaintiffs have previously asserted, that nude entertainers tend to be transient or itinerant. See Harrell, 992 F.Supp. at 1352 (“Other courts have found that exotic dancers tend to be WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 209 of 520 PageID 845 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 19 itinerant” (citations omitted)); see also Dkt. [12–1] at 24 n. 11 (describing business of nude entertainment as transient in nature); Dkt. [47] at 10 (“given their relative youth, many entertainers are fairly transient”). Nonetheless, at least 11 of the Plaintiffs in this action and 10 other entertainers, not parties to this action, have had a work relationship with the Club that exceeded one year. (See supra, at 6 n. 2; Dkt. [253–5] at ¶ 2 (worked as entertainer at Onyx for approximately three years or more); Dkt. [253–7] at ¶ 2 (same); Dkt. [253–11] at ¶ 2 (same); Dkt. [253–14] at ¶ 2 (same); Dkt. [253–15] at ¶ 2 (same); Dkt. [253–1] at ¶ 2 (worked as entertainer at Onyx for two years or more); Dkt. [253–3] at ¶ 2 (same); Dkt. [253–10] at ¶ 2 (same); Dkt. [253–4] at ¶ 2 (worked as entertainer at Onyx for one year or more); Dkt. [253–9] at ¶ 2 (same); Dkt. [253–16] at ¶ 2 (same)). Assuming that all other Plaintiffs to this action have worked at Onyx for less than a year, and assuming this constitutes an impermanent relationship, this factor would weigh against the finding of an employer-employee relationship. However, the present record is one over which reasonable jurors could reach different conclusions as to this factor. Therefore, the Court cannot say that this factor weighs in favor of finding an employer-employee relationship. vi. Importance of entertainers to the Club. [12] Defendants argue that “[n]ude dancing, while also contributing to the Club's caché, is not it's essential function.” (Dkt. [269] at 33). Rather, Defendants argue, Club Onyx is one of the premier nightclubs in the Southeast, which regularly features appearances by international superstar rap and R & B artists, and celebrity sports and entertainment personalities, and is known as “a place to *1349 see and be seen.” ... To this end, Club Onyx regularly promotes these appearances, which result in significantly higher customers than on non-promoted nights.... Club Onyx is also known for selling liquor by the glass and bottle, a unique privilege in the Atlanta bar and nightclub community, which further contributes to the Club's caché. (Id. at 32–33 (emphasis in original)). Plaintiffs contend that Defendants' argument that nude dancers are not integral to the Club's business is “absurd,” because: Onyx has three stages for dancing, with at least one stage visible from all areas of the Club; its website and billboard feature scantily clad women; it advertises in adult magazines; and it admits that it is a strip club. (Dkt. [272] at 18; Dkt. [211– 1] at 22–24). The Court agrees. Adams, the Club's night manager, testified that “[g]irls make the club busy. As far as if you don't have enough girls in the building, your customers won't stay ....” (Adams Depo. at 60:9–12). Defendants admit that on nights that there are many customers and few entertainers at Onyx, management will call in additional entertainers. (PSF at ¶ 219). GSE and GSEC's director of marketing, Jack Pepper, believed that the presence of scantily clad women on a billboard advertising the Club conveyed to the public that Onyx is an adult entertainment nightclub. (Pepper Depo. at 26:15–19). Based upon the record as a whole, a reasonable juror could not find that the presence of nude entertainment is not integral to the Club. This factor weighs in favor of finding an employer-employee relationship. vii. Other considerations. [13] Defendants argue that because Plaintiffs were given the choice of being treated as an employee or independent contractor, and elected to be treated as an independent contractor, and because several Plaintiffs have held themselves out to the IRS as independent contractors in regards to their relationship to the Club, and because each entertainer must obtain an individual permit from the City to perform at the Club, the economic reality is that they are independent contractors. (Dkt. [259] at 34–39). This is not the case. “In deciding whether an individual is an ‘employee’ within the meaning of the FLSA, the label attached to the relationship is dispositive only to the degree it mirrors the economic reality of the relationship.” Donovan v. Tehco, Inc., 642 F.2d 141, 143 (5th Cir.1981); see also Tony and Susan Alamo Found., 471 U.S. at 302, 105 S.Ct. 1953 (“the purposes of the Act require that it be applied even to those who would decline its protections”); Rutherford Food Corp. v. McComb, 331 U.S. 722, 729, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (“Where the work done, in its essence, follows the usual path of an employee, putting on an ‘independent contractor’ label does not take the worker from the protection of the Act.”); Freund, 185 Fed.Appx. at 783 (not listing an individual's subjective belief about her employment status as a factor that guides an inquiry in this Circuit into the economic reality of a work relationship); Harrell, 992 F.Supp. at 1353 (“Defendant's ... additional factors (characterization WESTl.AW ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 210 of 520 PageID 846 Clincy v. Galardi South Enterprises, Inc., 808 F.Supp.2d 1326 (2011) 18 Wage & Hour Cas.2d (BNA) 245 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 20 for tax purposes and the provision of employee benefits) are not relevant. Defendant cites no case which considers these factors in the context of the broad “suffer or permit to work” definition of employment contained in the FLSA.”). viii. Examining the record as a whole. In determining whether an employer-employee relationship existed between the Club and Plaintiffs “[n]o one factor is determinative;” “each factor should be given weight according to how much light it sheds on the nature of the economic dependence of the putative employee on the employer.” Perdomo, 298 Fed.Appx. at 821 (citing Antenor, 88 F.3d at 928–33); *1350 see also Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir.1976) (“No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor- economic dependence.”); Benshoff, 180 F.3d at 141 (“ ‘[t]he employer-employee relationship does not lend itself to rigid per se definitions, but depends upon the circumstances of the whole activity.’ ” (quoting Reich v. ConAgra, Inc., 987 F.2d 1357, 1361 (8th Cir.1993))). The Court has found that the Club's degree of control over the work of entertainers, the entertainers' opportunity for profit and loss, the entertainers' relative investment, the lack of specialized skill required to be an entertainer, and the integral nature of nude entertainment to the Club's business support a finding that an employer-employee relationship existed between the Club and Plaintiffs. Considering these factors that the Eleventh Circuit has identified as relevant, and in light of the record as a whole, the Court finds that Plaintiffs should have been classified as employees under the FLSA. Having decided that Plaintiffs should have been classified as employees under the FLSA, the case is scheduled to proceed with the second phase of discovery addressing other FLSA defenses and damages. See October 15, 2009 Scheduling Order (Dkt. [59] ) at 2. Consideration of the costs that might reasonably be incurred in the next phase of discovery causes the Court to conclude that the parties would be well served by engaging in mediation before proceeding to this phase of discovery. Therefore, the Court hereby REFERS the case to Chief Magistrate Judge Janet F. King for assignment to a Magistrate Judge for mediation. Discovery shall be STAYED until the mediation process is concluded. Conclusion For the aforementioned reasons, Plaintiffs' Motion for Partial Summary Judgment [211] is GRANTED, Defendants' Motion for Summary Judgment [218] is DENIED, and Defendants' Objection to Plaintiffs' Late– Filed Consent Forms [271] is OVERRULED. The case is hereby REFERRED to Chief Magistrate Judge Janet F. King for assignment to a Magistrate Judge for mediation. Discovery shall be STAYED until the mediation process is concluded. If mediation is unsuccessful, the parties shall proceed with discovery in accordance with the October 15, 2009 Scheduling Order. All Citations 808 F.Supp.2d 1326, 18 Wage & Hour Cas.2d (BNA) 245 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. ase 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 211 of 520 PageID 847 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 2046548 United States District Court, S.D. Florida, Miami Division. Livan Martin DIAZ and Javier Figueroa Villasuso, Plaintiffs, v. U.S. CENTURY BANK, International Risk Response, Inc., and Jose Antonio Quijano, Defendants. No. 12–21224–CIV. | May 14, 2013. Attorneys and Law Firms Christopher Nathaniel Cochran, David L. Markel, J.H. Zidell, P.A., K. David Kelly, Jamie H. Zidell, Miami Beach, FL, for Plaintiffs. Sanford Lewis Bohrer, Brian W. Toth, Holland & Knight, Miami, FL, for Defendants. ORDER GRANTING DEFENDANT U.S. CENTURY BANK'S MOTION FOR SUMMARY JUDGMENT FEDERICO A. MORENO, District Judge. *1 Plaintiffs Livan Diaz and Javier Villasuso were hired as security officers by Defendant International Risk Response, Inc. (“IRR”). They have filed suit against Defendant U.S. Century Bank for alleged violations of the Fair Labor Standards Act (“FLSA”). The FLSA imposes minimum wage and maximum hours requirements on employers. Because the Court finds that U.S. Century Bank was not Plaintiffs' joint employer under the FLSA, summary judgment in favor of Defendant U.S. Century Bank is granted while Plaintiffs' motion for partial summary judgment is denied. I. FACTUAL BACKGROUND 1 Defendant IRR operated a security service that provided security officers and related services to its clients. These clients included a condominium, a supermarket chain, and Defendant Century Bank. On February 3, 2010, IRR entered into a vendor agreement with Century Bank to provide security officers at the bank's various branches, including the bank's headquarters in Doral, Florida. This agreement provided that “[a]ll work performed by IRR in connection with the material, software, or Services described [therein] ... [would] be performed by [IRR] as an independent contractor and not as the agent or employee of [the] Bank.” Estevan Decl. Ex. A. Additionally, the agreement provided that “[a]ll persons furnished by [IRR] [would] be for all purposes solely [IRR's] employees or agents and [would] not be deemed to be employees of [the] Bank for any purpose whatsoever.” Id. Regarding the details of IRR's contractual obligations, the agreement stated that IRR would provide a uniformed security officer at all locations desired by Century Bank at a schedule set by the bank. IRR would bill Century Bank for these services at an hourly rate, providing the bank with an invoice that the bank would pay at a later time. Finally, IRR was responsible for the assignment of each officer to a specific location and retained the right to rotate officers to different locations at its discretion. Nevertheless, Century Bank had the authority to both request the assignment of a particular officer at a specific location as well as to override IRR's discretion and refuse the assignment of a particular officer at any of its branches. Accordingly, IRR invoiced Century Bank for every hour logged by the security officers at the Doral location. The bank would then pay IRR for these services. Apart from the invoices and their attached time sheets, Century Bank never created or maintained any employment records for any security officer that worked at the Doral branch. Significantly, the bank did not own the facilities at its Doral location but rather leased certain floors from the building's owner. In fact, employees and customers of other businesses located in the building often used the parking lot and garage next to Century Bank's facilities. A. Employment of Plaintiff' Villasuso In early 2010, Defendant Quijano, IRR's owner and president, interviewed and hired Plaintiff Villasuso as a security officer. Quijano told Villasuso how much IRR would pay him and that Villasuso would receive payment by check directly from IRR. In addition, Quijano gave Villasuso a company identification card and patches --- - -- - ---- - - - -- - -- - --- - -- - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 212 of 520 PageID 848 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 bearing the IRR symbol to be worn on a uniform that Quijano required Villasuso to wear. This uniform never contained any reference to Century Bank. *2 Following his hiring, IRR assigned Villasuso to work at Century Bank's Doral location beginning on February 8, 2010. Quijano informed Villasuso of the starting date, where Villasuso would stand in the bank, and details on how Villasuso would keep track of his hours. Specifically, Villasuso would record his hours on a time sheet created by IRR. A representative of Century Bank would then review and sign the sheet every fifteen days. Lastly, Quijano notified Villasuso of the days and hours that he would work. On his first day at the bank, Villasuso met with Quijano and Linda Torres, the branch manager of Century Bank's Doral location. Torres at this time gave Villasuso specific instructions on his duties. She required him to be present from 7:30 a.m. to the closing of the bank; directed him to sit, stand, and eat lunch at specific times; and instructed him to greet and bid farewell to all customers. If he encountered anything suspicious, Torres wanted Villasuso to inform bank personnel immediately. Furthermore, she told Villasuso to consult with the receptionist before taking lunch and forbade him from leaving at night until after bank employees had placed the money in the safe. Villasuso continued to follow these instructions throughout his time working inside the bank. Each day, a bank employee would inform Villasuso when the money was placed in the safe so that Villasuso could leave for the night. On a few occasions, a bank employee would tell Villasuso to ask a customer to remove a hat or sunglasses. Additionally, as Century Bank sporadically expected a client after hours, a bank employee would inform Villasuso of the client's identity so Villasuso could let him or her in the building. When Villasuso took days off, he would let Torres know in advance and would provide her with the name of his substitute. However, IRR alone determined which officer would replace Villasuso. And pursuant to Quijano's instructions, Torres or another Century Bank employee would sign Villasuso's time sheet every fifteen days. Villasuso continued to work at Century Bank's Doral location until Quijano fired him on October 31, 2011. During this period, Villasuso held no other position of employment. B. Employment of Plaintiff Diaz In June 2009, Quijano hired Plaintiff Diaz to work as a security officer at a condominium. Because Quijano required Diaz to have a security-officer license for the position, Diaz took training classes to acquire the license prior to being hired. As with Villasuso, Quijano provided Diaz with an IRR identification card and patches bearing the IRR symbol to wear on his uniform. Quijano also gave Diaz the same IRR time sheets to record his hours. In June 2010, IRR assigned Diaz to work at Century Bank's Doral location, specifically stationing him outside the bank and in the parking area. Quijano told Diaz how much IRR would pay him as well as the days and hours that he would work at the bank. On June 26, 2010, Diaz met with Quijano, Century Bank Senior Vice President Manuel David Lopez, and bank employee Duniesky Estevan. Lopez and Estevan notified Diaz that he would need to watch over the third floor of the parking lot on Wednesdays due to a weekly executive meeting. Diaz eventually worked in both the parking lot as well as the first floor of the building. *3 Throughout Diaz's time at Century Bank, Estevan monitored all areas of the Doral branch via camera, including those areas to which Diaz was assigned. Though the precise degree of daily supervision is unclear from the record, Century Bank at the very least instructed Diaz on occasion to go to different locations on the premises when bank employees noticed something out of the ordinary. Such instances included the presence of a solicitor or an illegally parked car. And as noted, Diaz maintained a post on the third floor of the parking lot on Wednesdays for the weekly executive meeting. Moreover, no bank employee ever disciplined Diaz during his employment. In early 2011, Diaz began attending English classes. To assist Diaz, Quijano adjusted Diaz's schedule to permit him to leave the bank early to make his class. Over the four-month period in which Diaz left work early to attend class, he never sought, and did not need to seek, permission from any Century Bank employee. Diaz continued to work at Century Bank's Doral location until Quijano fired him on October 31, 2011. During this period, Diaz held no other position of employment. - --- -- --- - --- - -- -- -- --- -- - ---- - -- -- -- ---- --- --- - -- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 213 of 520 PageID 849 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 C. FLSA Lawsuit Plaintiffs filed the present suit asserting three claims under the FLSA against Century Bank, IRR, and Quijano. Specifically, Plaintiffs sought recovery of unpaid overtime wages in Count I from all three Defendants. In Counts II and III, each Plaintiff respectively submitted a claim for retaliatory discharge against IRR and Quijano. Century Bank subsequently terminated its relationship with IRR in July 2012. Century Bank filed the present motion for summary judgment on February 2, 2013 contending that it was not Plaintiffs' joint employer under the FLSA. Plaintiffs thereafter filed a motion for partial summary judgment arguing that Century Bank was their joint employer according to the Act. II. LEGAL STANDARD A court shall grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Consequently, the movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” See Celotex Corp. v. Catrett, All U.S. 317, 323 (1986). In evaluating whether the movant has met this burden, a court must view all the evidence in the light most favorable to the non-moving party. See Dent v. Giaimo, 606 F.Supp.2d 1357, 1359 (S.D.Fla.2009) (citing Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983)). This means that a court “must construe all facts and draw all reasonable inferences in favor of the non-moving party.” Id. Once the movant has met its burden under Rule 56, the burden of production shifts and the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Indeed, “mere conclusory, uncorroborated allegations by a [non-moving party] in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a well-supported motion for summary judgment.” Dent, 606 F.Supp.2d at 1359. Rather, the non-moving party must come forward with “specific facts showing a genuine issue for trial” or the court will grant summary judgment. See Lopez v. Ans, No. 09–60734–CIV–COHN/SELTZER, 2010 U.S. Dist. LEXIS 7543, at *9, 2010 WL 335638 (S.D.Fla. Jan. 29, 2010) (quoting Matsushita, 475 U.S. at 587). A genuine issue of material fact does not exist “unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.” Anderson v. Liberty Lobby, Inc., All U.S. 242, 249 (1986). III. DISCUSSION *4 In its motion for summary judgment, Century Bank urges the Court to find as a matter of law that it was not Plaintiffs' joint employer under the FLSA. Plaintiffs in turn present their motion for partial summary judgment seeking the opposite conclusion. Section 203(d) of the FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d) (2013). An entity “employs” a person under the FLSA if it “suffer[s] or permit[s]” the individual to work. Id. § 203(g). In determining whether a particular entity employed an individual, a court must ask “if, as a matter of economic reality, the individual is dependent on the entity.” Antenor v.D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). This “economic realities test” therefore looks at the “surrounding circumstances of the whole activity” to ascertain whether the person was dependent upon the putative employer. Beck v. Boce Grp., L.C., 391 F.Supp.2d 1183, 1186 (S.D.Fla.2005). In addition, the FLSA recognizes that “a worker can be economically dependent on, and thus jointly employed by, more than one entity at the same time.” Anterior, 88 F.3d at 929. Accordingly, “whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the act depends upon all the facts in the particular case.” 29 C.F.R. § 791.2(a) (2013). The Eleventh Circuit specifically employs eight factors in analyzing whether - -- -- - - - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 214 of 520 PageID 850 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 a joint employment relationship exists: (1) the nature and degree of the putative employer's control of the workers; (2) the degree of supervision, direct or indirect, of the work; (3) the right, directly or indirectly, to hire, fire, or modify the workers' employment conditions; (4) the power to determine the workers' pay rates or methods of payment; (5) the preparation of payroll and payment of the workers' wages; (6) the ownership of the facilities where the work occurred; (7) whether the workers performed a line job integral to the end product; and (8) the relative investment in equipment and facilities. Beck, 391 F.Supp.2d at 1187. Furthermore, the Eleventh Circuit has provided a few underlying principles to guide the execution of this analysis. First, the inquiry in joint employment cases is “not whether the worker is more economically dependent on the independent contractor or the [alleged employer], with the winner avoiding responsibility as an employer.” Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1177 (11th Cir.2012) (quoting Antenor, 88 F.3d at 932). Rather, the court must concentrate on “each employment relationship as it exists between the worker and the party asserted to be a joint employer.” Id. (quoting Antenor, 88 F.3d at 932). Second, no one factor is determinative as the existence of a joint employment relationship depends on the economic reality of all the circumstances. Antenor, 88 F.3d at 932. Third, economic dependence is the ultimate notion that must direct the court's decision and “the weight of each factor depends on the light it sheds on the [ ]workers' economic dependence (or lack thereof) on the alleged employer, which in turn depends on the facts of the case.” Id. at 932–33. Fourth, the joint employment analysis is “not determined by a mathematical formula.” Id. at 933. The absence of any one or more of the factors does not preclude a finding of joint employment. Id. Indeed, “[t]he purpose of weighing the factors is ... to view them qualitatively to assess the evidence of economic dependence, which may point to both” putative employers. Id. Fifth, the court “must not allow common- law concepts of employment to distract [its] focus from economic dependency.” Id. Last, the FLSA as a remedial statute should be construed broadly. Beck, 391 F.Supp.2d at 1187. *5 The Court will now proceed to evaluate Plaintiffs' and Century Bank's competing claims under each of the eight factors. In doing so, the Court first takes note of the Eleventh Circuit's decision in Layton v. DHL Express (USA), Inc. In that case, DHL, a provider of shipping and logistic services, contracted with a third party, Sky Land Express, for the use of drivers to deliver DHL's packages. Layton, 686 F.3d at 1173. Utilizing the joint employment analysis, the court concluded that DHL was not a joint employer of the drivers under the FLSA. See id. at 1181. In particular, the court held that DHL did not exercise sufficient control over the drivers despite the fact that it made business decisions and received erratic pick-up orders that occasionally affected the length of the drivers' workdays. See id. at 1178. Additionally, the court found that DHL did not exercise enough supervision over the drivers to qualify as a joint employer even though DHL managers oversaw the loading of packages by the drivers every morning, audited the drivers' vehicles, and periodically checked in with the drivers via scanners. See id. at 1179. Finally, the court emphasized the fact that DHL had no power to hire or fire the drivers, had no power to set pay rates, did not pay the drivers, did not own the drivers' vans, and did not employ the drivers in a specialty job integral to its business. See id. at 117980. In reaching its conclusion, the court did not find the final factor, investment in equipment and facilities, to be dispositive as both Sky Land and DHL made significant investments in the drivers' equipment and facilities. See id. at 1181. A. Joint Employment Analysis 1. Nature and Degree of Century Bank's Control of Plaintiffs As the Eleventh Circuit stated in Layton, “[c]ontrol arises ... when the [purported joint employer] goes beyond general instructions ... and begins to assign specific tasks, to assign specific workers, or to take an overly active role in the oversight of the work.” Id. at 1178 (quoting Aimable v. Long & Scott Farms, 20 F.3d 434, 441 (11th Cir.1994)). A purported employer takes an overtly active role in the oversight of work when it decides such things as “(1) for whom and how many employees to hire; (2) how to design the employees' management structure; (3) when work begins each day; (4) when the laborers shall start and stop their work throughout the day; and (5) whether a laborer should be disciplined or retained.” Id. (quoting Martinez–Mendoza v. Champion Int'l Corp., 340 F.3d 1200, 120910 (11th Cir.2003)). - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 215 of 520 PageID 851 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 In its motion for summary judgment, Century Bank asserts that it lacked sufficient control over Plaintiffs to qualify as their joint employer. First, the bank argues that it only provided Plaintiffs with general instructions regarding their duties. It contends that it never gave regular instructions to Villasuso after Torres spoke with him on his first day and never provided Diaz with further instructions unless something out of the ordinary happened. Furthermore, Century Bank equates its regulation of Villasuso's work hours to DHL's indirect control of the drivers' hours in Layton. Namely, Century Bank urges the Court to deem its fixture of Villasuso's hours to the closing of the safe as too abstract, just as the Eleventh Circuit held in relation to the impact of DHL's business decisions on the drivers' hours. Lastly, though Century Bank admits that it contracted for the presence of security officers for certain hours at its Doral location, it stresses that it did not negotiate for the presence of specific officers such as Plaintiffs on its premises. Instead, the bank points out that Plaintiffs worked out their schedules with IRR and that IRR made the decision to send Plaintiffs to work at Century Bank. In fact, IRR had the authority to assign Plaintiffs to work for other clients if it so desired and controlled the assignment of substitutes for Plaintiffs. *6 In response, Plaintiffs first assert that Century Bank exercised sufficient control over them. For instance, Plaintiffs claim that Century Bank set up their management structure by having Torres and Estevan assign specific tasks to Villasuso and Diaz respectively. To this end, they note that Torres instructed Villasuso on his duties during his first day while Estevan assigned Diaz to work on the third floor of the parking lot on Wednesdays at the onset of his time at the bank. Moreover, Plaintiffs point to the provisions in the vendor agreement reserving Century Bank's right to request or reject the presence of specific officers and granting it the authority to designate the officers' hours. Beyond the agreement, Plaintiffs assert that the bank exercised further control over Villasuso's hours by tying the end of his workday to the closing of the safe. Despite Plaintiffs' arguments to the contrary, the Court finds from the undisputed facts that the first factor weighs against a finding of joint employment. To begin, the Court does acknowledge that Century Bank may have exercised a certain amount control over Plaintiffs' hours. In Layton, DHL merely set the time for drivers to pick up packages in the morning, leaving the drivers in control of the length of their workdays based on their delivery of the packages. See id. DHL only occasionally affected the duration of the drivers' workdays when it had erratic pick-up orders to which drivers had to respond. Id. In contrast, Century Bank here set the start and end times for both Villasuso and Diaz. Though Villasuso's end time varied based upon the closing of the safe, that was still a set event set in place by Century Bank. Nevertheless, Century Bank failed to exert much control beyond its regulation of Plaintiffs' hours. Century Bank largely did not direct Plaintiffs beyond providing them with general instructions during their time at the bank. In particular, Bank representatives informed Plaintiffs of their general tasks on their respective first days, but only sporadically provided Plaintiffs with any sort of specific instructions afterward. Century Bank thus did not actively and overtly involve itself in Plaintiffs' specific tasks on a constant basis. Moreover, Century Bank did not exercise any control over the specific assignment of Plaintiffs. IRR alone made the choice to assign Plaintiffs in particular to work at Century Bank from amongst their various clients. IRR alone made the determination of who would substitute for Plaintiffs when they took days off of work. And IRR alone adjusted Diaz's schedule for four months to allow him to attend English classes. In light of these facts, the Court concludes that the limited control that Century Bank did exercise over Plaintiffs was akin to the “abstract” control that the Eleventh Circuit found lacking in Layton. See id. 2. Century Bank's Degree of Supervision of Plaintiffs' Work A putative employer may exercise supervision “regardless of whether orders are communicated directly to the alleged employee or indirectly through the contractor.” Id. at 117879. However, “infrequent assertions of minimal oversight do not constitute the requisite degree of supervision.” Martinez–Mendoza, 340 F.3d at 1211. *7 Century Bank premises much of its discussion of the second factor on the alleged infrequency of its supervision of Plaintiffs. Specifically, the bank asserts that it never gave Villasuso comprehensive instructions on his duties after the first day. Instead, Century Bank assigned him specific tasks only on the rare occasion where a customer was not in compliance with its policies or it expected a customer after hours. For Diaz, the bank claims that his -- ---- - -- --- -- -- -- --■- -- -- -- - - -- - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 216 of 520 PageID 852 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 daily tasks did not change except in the occasional case where one of its employee would communicate with Diaz about a “non-routine” situation. Finally, the bank denies that any of its employees ever audited Plaintiffs' work to determine whether it was in compliance with the vendor agreement. Plaintiffs in turn emphasize the instances where Century Bank did in fact exercise supervision over them. For Villasuso, Plaintiffs focus on the occasions where bank employees instructed him to ask a customer to remove a hat or sunglasses, or where they directed him to let a client enter after hours. For Diaz, Plaintiffs note that Estevan would call Diaz on Wednesdays to tell him when to get into position for the weekly meeting, as well as on occasions when other situations arose such as the presence of a solicitor. Additionally, Plaintiffs highlight the fact that Estevan monitored areas of the bank via camera, including the areas over which Diaz had responsibility. Yet, even taking into account the instances where Century Bank exercised concrete supervision over Plaintiffs, the Court finds that these occasions did not rise to the level necessary to suggest joint employment. Indeed, the Eleventh Circuit reached a similar conclusion in Layton despite the fact that DHL exercised as much, if not more, supervision over the drivers than Century Bank exercised in this case. In Layton, the court observed that the drivers loaded their trucks each morning at a DHL warehouse under the oversight of DHL managers who at times criticized the drivers' loading techniques. Layton, 686 F.3d at 1179. DHL also audited the drivers' vehicles and uniforms to ensure compliance with the standards contained in the agreement between DHL and Sky Land. Id. Lastly, DHL would occasionally contact the drivers via scanners when non-routine situations arose. Id. In this case, Century Bank only periodically instructed Plaintiffs on their tasks once it had provided them with general instructions on their jobs on their respective starting dates. As in Layton, much of Century Bank's communication with Plaintiffs came intermittently as non- routine situations arose, such as the presence of a solicitor or the arrival of a client after hours. Nor does the record suggest that Century Bank engaged in consistent auditing of Plaintiffs' work to confirm compliance with the vendor agreement. Plaintiffs were therefore largely unsupervised during most of their workdays. Consequently, the Court finds that Century Bank's infrequent assertions of minimal oversight over Plaintiffs do not indicate the existence of a joint employment relationship. 3. Century Bank's Right to Hire, Fire, or Modify Plaintiffs' Employment Conditions *8 Century Bank adamantly denies that it had any right to hire, fire, or modify Plaintiffs' employment conditions. In fact, IRR alone hired and fired Plaintiffs. Though Plaintiffs acknowledge that Century Bank did not have the power to hire or fire them, they nonetheless contend that the bank could effectively modify their employment conditions by refusing their presence at the Doral location. With Plaintiffs' admission that Century Bank had no right to hire or fire them, the Court finds that this factor is not probative of a joint employment relationship. Even if Century Bank's unexercised right to refuse a particular officer at the Doral location constituted an ability to modify Plaintiffs' employment conditions, the Court finds this power to be limited. Though Century Bank could affect Plaintiffs' ability to work at its offices, the bank could not modify Plaintiffs' employment if IRR assigned them to work for another client. Century Bank's ability to modify Plaintiffs' employment conditions thus extended only as far as IRR's initial decision to assign them to the bank. This sort of minimal involvement with the employment process does not suggest joint employment. 4. Century Bank's Power to Determine Plaintiffs' Pay Rates or Methods of Payment Century Bank also denies that it had any power whatsoever to determine Plaintiffs' pay rates. In doing so, the bank cites the provisions of the vendor agreement granting IRR the authority to set Plaintiffs' hourly rate. IRR additionally provided Plaintiffs with time sheets to record their hours and would pay Plaintiffs directly. It would then invoice the bank for those hours worked. While Plaintiffs admit that Century Bank did not directly determine their pay rates, they insist that the amount of their compensation, as the product of an hourly rate, was dependent upon the bank's determination of their work hours. Thus, in their estimation, Century Bank set a pay ceiling. The Court does not find Plaintiffs' reasoning here convincing. Quite simply, Century Bank's ability to determine Plaintiffs' hours was not the power to determine -- --- - ---- - - -- -- -- - - --- - -- --- - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 217 of 520 PageID 853 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 Plaintiffs' pay rates or the methods of payment. The vendor agreement specifically granted IRR alone the power to determine the pay rates for its security officers and designated the process through which IRR would bill Century Bank for the services provided. This factor therefore weighs against a finding of joint employment. 5. Century Bank's Preparation of Payroll and Payment of Plaintiffs' Wages It is undisputed that IRR alone was directly responsible for both the preparation of payroll and the payment of Plaintiffs' wages. Indeed, Plaintiffs do not attempt to tie Century Bank to either activity apart from offering the same “pay ceiling” argument that they employed in relation to the previous joint employment factor regarding pay rates and methods of payment. As a result, the Court finds that this factor too weighs against a finding of joint employment. 6. Century Bank's Ownership of the Facilities Where Plaintiffs' Work Occurred *9 The ownership of the facilities where an employee's work occurred is significant because “without the [facilities], the worker might not have work, and because a business that owns or controls the worksite will likely be able to prevent labor law violations, even if it delegates hiring and supervisory responsibilities to labor contractors.” Anterior, 88 F.3d at 937. More fundamentally, “a landowner is thought to have some knowledge of and control over what happens on his land.” Layton, 686 F.3d at 1180. In this case, Century Bank emphasizes that it merely leased the facilities at its Doral location and that employees and customers of neighboring businesses frequently used the adjacent parking lot. Although Plaintiffs acknowledge that Century Bank did not own the building at the Doral location, they stress the bank's control over the facilities through its lease. While it is true that Century Bank did not own the facilities at its Doral location, it certainly exercised a considerable amount of control over its workplace through its lease. Plaintiffs thus appropriately distinguish the present case from Layton where the drivers spent the majority of their workdays in vans independently owned by Sky Land. See id. The court in that case accordingly held that the drivers were not dependent on DHL to provide them with the facilities necessary to carry out their duty of delivering packages. Id. In contrast, Plaintiffs relied upon Century Bank's control of its Doral location to carry out their duty of providing security at the bank, thereby suggesting a greater level of dependence on the putative employer here than existed in Layton . This factor therefore may weigh somewhat in favor of a joint employment relationship. 7. Plaintiffs' Performance of a Specialty Job Integral to Century Bank's Business In Rutherford Food Corp. v. McComb, the Supreme Court concluded that a slaughterhouse was the joint employer of meat boners whom it had hired via a labor contractor. Rutherford Food Corp. v. McComb, 331 U.S. 722, 729, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). The Court found that the workers performed “a specialty job on the production line” more akin to “piecework than an enterprise that actually depended for success upon the initiative, judgment or foresight of the typical independent contractor.” Id. at 730. Since the workers stood as “part of the [slaughterhouse's] integrated unit of production,” the Court deemed them to be the slaughterhouse's employees. Id. at 729. The Eleventh Circuit has subsequently explained that “a worker who performs a routine task that is a normal and integral phase of the [alleged employer]'s production is likely to be dependent on the [alleged employer]'s overall production process.” Anterior, 88 F.3d at 937. Century Bank now maintains that Plaintiffs did not perform a specialty job integral to its business. Returning to Layton, the bank observes that the Eleventh Circuit declined to consider the drivers' “crucial task” of delivering packages as “integral” since it was not analogous to employees working on a production line. See Layton, 686 F.3d at 1180. Century Bank thus argues that Plaintiffs' service as security officers was likewise not integral to the bank's operation despite its crucial nature. Plaintiffs nonetheless object to the bank's characterization of their role within the bank's larger operation. They contend that their position as security officers was a specialized and critical aspect of the integrated unit of the bank's business. *10 Though security services are without doubt a crucial aspect of a bank's business, Plaintiffs as security officers did not perform a specialty job integral to Century Bank's business in the sense of an employee “working at a particular position on a larger production line.” Id. - -- - -- - -- -- - --- -- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 218 of 520 PageID 854 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 (quoting Anterior, 88 F.3d at 937). In fact, Plaintiffs' case is less compelling than the drivers' position in Layton where DHL could not accomplish its essential business task of delivering packages without them. Though a bank certainly needs security officers for protection, those officers are not directly involved in the business of banking and are largely ancillary to a bank's daily activities. The Court therefore finds that this factor is not probative of joint employment. 8. Century Bank's and IRR's Relative Investment in Equipment and Facilities Courts look to the contractor's and the putative employer's relative investment in equipment and facilities because “workers are more likely to be economically dependent on the person who supplies the equipment or the facilities.” Id. at 1181. Since IRR alone provided Plaintiffs with the company identification cards and the uniform patches bearing its name, Century Bank contends that it has not made any investment in Plaintiffs' equipment. Plaintiffs counter by asserting that Century Bank controlled and supplied the facilities in the Doral location. Because both IRR and Century Bank made investments in the form of equipment and facilities respectively, the Court finds that this factor does not aid its overall analysis. In Layton, the court did not find this final factor to be useful where both DHL and Sky Land invested significantly in the drivers' equipment and facilities. Id. In particular, DHL contributed the warehouses where the drivers worked briefly each day while Sky Land owned the vans that the drivers used for the majority of their workdays. Id. Similarly, the Court does not find this factor to be helpful where both IRR and Century Bank invested in Plaintiffs' equipment and facilities. 9. Other Considerations The Court notes one further consideration that weighs against a finding of joint employment. As a further factor in evaluating the economic reality of an alleged employment relationship, the Eleventh Circuit has also considered whether the alleged employer “maintained employment records.” Villareal v. Woodman, 113 F.3d 202, 205 (11th Cir.1997). Here, Century Bank failed to create or maintain any of Plaintiffs' employment records beyond the invoices and the attached time sheets that IRR sent when billing the bank. B. Final Assessment Based on the record and the absence of a genuine issue of material fact, the Court concludes as a matter of law that Century Bank was not Plaintiffs' joint employer under the FLSA. Recalling the Eleventh Circuit's guiding principles for the joint employment analysis, the Court finds that the economic reality of the present circumstances demonstrates little, if any, economic dependence by Plaintiffs on Century Bank. Though the bank instructed Plaintiffs on “macro-level goals,” it failed to provide much instruction regarding daily tasks on a consistent basis. See Layton, 686 F.3d at 1181 (concluding that DHL was not the drivers' joint employer where the company “provided little guidance regarding the manner by which to execute daily tasks”). Century Bank's minimal control and supervision of Plaintiffs, paired with its minor role in Plaintiffs' employment process and lack of involvement in the payment of Plaintiffs, all suggest the absence of a joint employment relationship. *11 Perhaps most indicative of the lack of this joint relationship is the fact that IRR had plenary authority over the assignment of Plaintiffs, not only in rotating them between different Century Bank locations, but also in the transfer of Plaintiffs to other clients. In truth, IRE. originally transferred Diaz from service at a condominium to his assignment at the bank. Accordingly, the Court notes that the Eleventh Circuit in Layton emphasized Sky Land's ownership of the vans as an indication of the fact that the drivers could have worked as couriers for other companies. See id. at 1180. As a reflection of economic dependence then, the Court finds that this fact, in conjunction with the other factors discussed, demonstrates Plaintiffs' lack of economic dependence on Century Bank. Consequently, the Court grants Century Bank's motion for summary judgment and denies Plaintiffs' motion for partial summary judgment. IV. CONCLUSION For the above reasons, it is ADJUDGED that Defendant U.S. Century Bank's Motion for Summary Judgment (D.E. No. 34), filed on February 2, 2013, is GRANTED, and that Plaintiffs' - - - - - - --- - --- - -- - - -- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 219 of 520 PageID 855 Diaz v. U.S. Century Bank, Not Reported in F.Supp.2d (2013) 20 Wage & Hour Cas.2d (BNA) 1170 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 Motion for Partial Summary Judgment (D.E. No. 35), filed on February 5, 2013, is DENIED. DONE AND ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 2046548, 20 Wage & Hour Cas.2d (BNA) 1170 Footnotes 1 The following factual summary includes only those facts not in dispute. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 220 of 520 PageID 856 Freund v. Hi-Tech Satellite, Inc., 185 Fed.Appx. 782 (2006) 11 Wage & Hour Cas.2d (BNA) 917 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Vaughan v. M-Entertainment Properties, LLC, N.D.Ga., March 15, 2016 185 Fed.Appx. 782 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Eleventh Circuit Rules 36-2, 36-3. (Find CTA11 Rule 36-2 and Find CTA11 Rule 36-3) United States Court of Appeals, Eleventh Circuit. Stan FREUND, Plaintiff-Appellant, v. HI-TECH SATELLITE, INC., Joel Eisenberg, Defendants-Appellees. No. 05-14091 | Non-Argument Calendar. | May 31, 2006. Synopsis Background: Installer of home satellite and entertainment systems brought suit against employer under Fair Labor Standards Act (FLSA), alleging that he was an employee entitled to overtime pay, not an independent contractor. The United States District Court for the Southern District of Florida found that he was independent contractor, and he appealed. Holding: The Court of Appeals held that installer was “independent contractor,” not employee, and thus was not entitled to overtime pay, even though he worked six days each week. Affirmed. West Headnotes (1) [1] Labor and Employment Persons in Particular Employments Installer of home satellite and entertainment systems was “independent contractor,” not employee, and thus was not entitled to overtime pay under Fair Labor Standards Act (FLSA), even though he worked six days each week, where company schedule installation appointments but installer could re-schedule, details of how installer carried out his duties were generally left to him, installer was compensated mainly by the job and not by the hour, installer had special skills, and installer could take jobs from other companies and could take as many or as few jobs as he desired. Fair Labor Standards Act of 1938, § 3(e)(1), 29 U.S.C.A. § 203(e)(1). 59 Cases that cite this headnote Attorneys and Law Firms *782 Joseph Bilotta, Vassallo & Bilotta, Lake Worth, FL, for Plaintiff-Appellant. Alan Dagen, Law Offices of Alan Dagen, P.A., Weston, FL, for Defendants-Appellees. Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 04-80117- CV-DTKH. Before ANDERSON, BLACK and BARKETT, Circuit Judges. Opinion PER CURIAM: **1 Stan Freund appeals the district court's dismissal with prejudice of his Fair Labor Standards Act (“FLSA”) suit, brought pursuant to 29 U.S.C. § 201 et seq. The district court determined, after a bench trial, that Freund was not entitled to overtime pay from Hi-Tech Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 221 of 520 PageID 857 Freund v. Hi-Tech Satellite, Inc., 185 Fed.Appx. 782 (2006) 11 Wage & Hour Cas.2d (BNA) 917 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Satellite because he was an independent contractor, not an employee. The requirements of the FLSA apply only to employees. The statute defines an “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). In turn, the FLSA defines “to employ” as “to suffer or permit to work,” 29 U.S.C. § 203(g), and an “employer” as “any person acting ... in the interest of an employer in relation to an employee,” 29 U.S.C. § 203(d). The Supreme Court has explained that courts must determine whether, as a matter of “economic realit[y],” an individual is an employee or an independent contractor in business for himself. Rutherford Food *783 Corp. v. McComb, 331 U.S. 722, 728, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). Several factors guide this inquiry: (1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; (6) the extent to which the service rendered is an integral part of the alleged employer's business. Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir.1987). “No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor- economic dependence.” Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir.1976). 1 The determination of employment status is a question of law, which we review de novo. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). Subsidiary findings are considered issues of fact. Patel v. Wargo, 803 F.2d 632, 634 n. 1 (11th Cir.1986). 1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 1. Nature and Degree of Control exerted by Hi-Tech over Mr. Freund The district court determined that Hi-Tech exerted very little control over Mr. Freund. Hi-Tech scheduled the installation appointments but Freund could re-schedule them. The specific details about how Freund carried out his duties were left to him with the exception that 1) he was not allowed to perform any additional services that were not paid for by the customers without Hi- Tech's approval; 2) he had to wear a Hi-Tech shirt during appointments; 3) he had to follow certain minimum specifications for the installations; and 4) he had to call Hi-Tech to confirm he had completed the installation and report any problems that had arisen. The district court found that Hi-Tech's interest in Freund's work was the end result of customer satisfaction, and not with the day- to-day regulation of his work habits, hours worked or work methods. The district court credited Joel Eisenberg's testimony that Freund was free to perform installations for other companies and could have established his own subcontracting corporation. The court noted that several of Hi-Tech's other installers had created their own corporate entities. 2. Opportunity for Profit or Loss, Depending on his Managerial Skill **2 Next the district court reasoned that the looseness of the relationship between Hi-Tech and Freund permitted him great ability to profit or lose that was dependant upon his managerial skill. Freund was almost entirely compensated by the job and not the hour; therefore, by accepting more jobs, performing more efficiently and hiring employees, he could earn greater sums of money. The court also credited Eisenberg's testimony that Freund could have accepted installation jobs from other companies. 3. Investment in Equipment and Materials Required for the Job, and Employment of Other Workers The court concluded from the testimony and the record evidence that Freund procured *784 all of the equipment necessary to perform the installations. He drove his own WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 222 of 520 PageID 858 Freund v. Hi-Tech Satellite, Inc., 185 Fed.Appx. 782 (2006) 11 Wage & Hour Cas.2d (BNA) 917 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 vehicle and provided his own tools and supplies for each installation. Finally, although Freund did not hire any workers, other of Hi-Tech's installers did. 4. Skill Level From the record evidence and testimony, the district court discerned that Freund had special skills to properly install home satellite and entertainment systems. He was also required to explain the inner workings of the satellite and/or home entertainment systems to customers and troubleshoot any installation difficulties. 5. Degree of Permanence in Freund's Working Relationship with Hi-Tech The court concluded that Freund's relationship with Hi- Tech was not one with a significant degree of permanence. It based its conclusion on the fact that Freund was able to take jobs from other installation brokers. Also, the court noted that Freund could take as many or as few jobs as he desired. 6. The Relationship between the Services Freund rendered and Hi-Tech's Business In the only factor weighing for Freund, the district court found that Freund's services were an integral part of Hi- Tech's business. On appeal, Freund argues that the district court erred because it looked not at what the economic reality of the relationship was but rather at what the relationship could have been. Although Freund claims that Hi-Tech's allegations that Freund could have hired employees, taken days off, and worked for other companies were made after the fact, Hi-Tech was able to point to how its other installers had behaved in the same relationship. Freund argues that this is irrelevant but we disagree: it is a fact that tends to support Hi-Tech's testimony about how it treated its installers and belies Freund's allegations that the testimony was made up after the fact. This case is substantially similar to an unpublished Fourth Circuit case that reached the same result. In Chao v. Mid-Atlantic Installation Services, Inc., 16 Fed.Appx. 104 (4th Cir.2001), the court affirmed the district court's determination that cable installers working for the defendant corporation were independent contractors. The court examined very similar facts and concluded the installers had sufficient control over their jobs and profits, had special skills, and invested in their equipment enough to make them independent contractors. Like Freund, these installers did not set the prices but provided their own equipment and had a special skill set, both of which the court deemed important. Additionally, it recognized that although the installers did not set the prices, the installers were “no less in control of their net profits as a result of these variables than typical independent contractors.” Id. at 107. **3 Having read the trial transcript and reviewed the exhibits, we conclude that the district court did not err. It belies common sense to read the facts in the way that Freund argues that they should be. Just because Freund worked six days a week does not mean that he had to, especially in light of the evidence that other installers did not. Under Freund's logic, we would be compelled to determine, in another type of case, that a firm did not give sick days if the employee never took them. This does not make common sense. In the absence of evidence demonstrating that the relationship with Freund was different, evidence of how Hi-Tech treated its other *785 installers is probative of the working relationship. AFFIRMED. All Citations 185 Fed.Appx. 782, 2006 WL 1490154, 11 Wage & Hour Cas.2d (BNA) 917 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 223 of 520 PageID 859 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 843 F.3d 1276 United States Court of Appeals, Eleventh Circuit. Gaudencio GARCIA-CELESTINO, individually and on behalf of all other persons similarly situated, Raymundo Cruz–Vicencio, individually and on behalf of all other persons similarly situated, Raul Ismael Estrada–Gabriel, individually and on behalf of all other persons similarly situated, Daniel Ferro–Nieves, individually and on behalf of all other persons similarly situated, Jose Manuel Ferro–Nieves, individually and on behalf of all other persons similarly situated, et al., Plaintiffs–Appellees, v. RUIZ HARVESTING, INC., et al., Defendants, Consolidated Citrus Limited Partnership, Defendant–Appellant, No. 16-10790 | Date Filed: 12/15/2016 Synopsis Background: Temporary migrant farm workers, who were employed in United States pursuant to H-2A program established by Immigration Reform and Control Act (IRCA), brought class action against labor supplier and fruit grower, alleging, inter alia, labor supplier breached terms of clearance orders, and violated Fair Labor Standards Act (FLSA), by failing to pay promised wages for all hours worked, and that fruit grower was liable as joint employer. Labor supplier was dismissed after settlement, and the United States District Court for the Middle District of Florida, Marvin E. Aspen, J., 2015 WL 3440351, granted judgment in workers' favor as to claims against fruit grower. Fruit grower appealed. Holdings: The Court of Appeals, Hull, Circuit Judge, held that: [1] common law principles of agency governed whether fruit grower qualified as a joint employer for purpose of workers' breach of contract claim; [2] remand was required to permit district court to decide in the first instance whether, under the common law principles of agency, fruit grower qualified as a joint employer for purposes of workers' breach of contract claim; [3] fruit grower was liable as a “joint employer” under FLSA's statutory “suffer or permit to work” standard. Affirmed in part, reversed in part, and remanded. West Headnotes (19) [1] Federal Courts Questions of Law in General Federal Courts "Clearly erroneous" standard of review in general After a bench trial, Court of Appeals reviews the district court’s conclusions of law de novo and the district court’s findings of fact for clear error. 1 Cases that cite this headnote [2] Labor and Employment Questions of law and fact as to employment status Whether a company is liable as a joint employer is a question of law. 1 Cases that cite this headnote [3] Labor and Employment Purpose and construction in general Where Congress uses the term “employee” in a statute but does not clearly define it, reviewing courts should assume that the term refers to the conventional master-servant relationship as understood by common-law agency doctrine. Cases that cite this headnote [4] Labor and Employment Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 224 of 520 PageID 860 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Suffering or permitting to work Fair Labor Standards Act's (FLSA) “suffer or permit to work” definition of “employ” is one of the broadest possible delineations of the employer-employee relationship. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). 1 Cases that cite this headnote [5] Action Statutory rights of action Labor and Employment Purpose Labor and Employment Proceedings Migrant and Seasonal Agricultural Worker Protection Act (AWPA) provides labor rights to domestic agricultural workers and allows those workers to sue their employers to enforce those rights. Migrant and Seasonal Agricultural Worker Protection Act § 3, 29 U.S.C.A. § 1802. 1 Cases that cite this headnote [6] Labor and Employment Employment relationship Labor and Employment Suffering or permitting to work When determining whether an employment relationship exists under the “suffer or permit to work” standard set forth in Fair Labor Standards Act (FLSA), courts are not guided by common law definitions of “employer” and “employee”; rather, an entity is deemed to employ a worker where, as a matter of economic reality and under all the circumstances, the worker is economically dependent on the hiring entity. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). Cases that cite this headnote [7] Administrative Law and Procedure Plain, literal, or clear meaning; ambiguity Administrative Law and Procedure Permissible or reasonable construction Under Chevron, when reviewing an agency’s interpretation of a statute, Court of Appeals first asks whether Congress has directly spoken to the precise question at issue; if the Congressional directive is clear, the Court must give effect to the unambiguously expressed intent of Congress, but where the Congressional directive is ambiguous or otherwise unclear, the Court asks whether the agency’s interpretation of the issue is based on a permissible construction of the statute. 1 Cases that cite this headnote [8] Labor and Employment Joint employers Common law principles of agency, rather than Department of Labor (DOL) regulations, applied in determining whether fruit grower was a joint employer of temporary migrant workers hired by labor supplier under H-2A program established by Immigration Reform and Control Act (IRCA), for purposes of workers' breach of contract claims; Congress's choice not to adopt the more expansive “suffer or permit to work” standard set forth in Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (AWPA), in enacting IRCA amendments to Immigration and Nationality Act (INA), indicated that Congress intended for that term to be construed in a manner consistent with its common law meaning. Immigration and Nationality Act § 218, 8 U.S.C.A. § 1188; Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act § 3, 29 U.S.C.A. § 1802(5). Cases that cite this headnote [9] Statutes Context Statutes Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 225 of 520 PageID 861 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Statutory scheme in general When the Court of Appeals construes a statutory provision, it must read it in context, giving due consideration to the provision’s place in the overall legislative scheme. Cases that cite this headnote [10] Statutes Language When construing the meaning of the statutory language chosen by Congress, Court of Appeals must respect the compromise embodied in the words as they are codified. Cases that cite this headnote [11] Statutes Statutory terms with common law meanings It is a generic rule of statutory construction that any statutory term with established meaning under the common law is to be construed in a manner consistent with that common law meaning unless the statute says otherwise. Cases that cite this headnote [12] Federal Courts Issues or questions not passed on below Remand was required, in action brought against fruit grower by temporary migrant workers hired by fruit grower's labor supplier under H-2A program established by Immigration Reform and Control Act (IRCA), to permit district court to decide in the first instance whether, under the common law principles of agency, fruit grower qualified as a joint employer for purposes of workers' claims that labor supplier breached terms of clearance orders by failing to pay promised wages for all hours worked, where district court had erroneously applied more expansive FLSA statutory “suffer or permit to work” standard in granting judgment in workers' favor. Immigration and Nationality Act § 218, 8 U.S.C.A. § 1188; Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). Cases that cite this headnote [13] Labor and Employment Nature, Creation, and Existence of Employment Relation Under the common law standard, the proper focus in determining whether an employer- employee relationship exists is the hiring entity’s right to control the manner and means by which the product is accomplished; there is no shorthand formula or magic phrase that can be applied to find the answer under the common law approach. Cases that cite this headnote [14] Labor and Employment Employment relationship Labor and Employment Suffering or permitting to work In determining whether an entity qualifies as an employer under the FLSA “suffer or permit to work” standard, courts consider: (1) nature and degree of control of workers; (2) degree of supervision, direct or indirect, of work; (3) right, directly or indirectly, to hire, fire, or modify employment conditions of workers; (4) power to set pay rates or methods of payment; (5) preparation of payroll and payment of wages; (6) ownership of facilities where work occurred; (7) workers' performance of specialty job integral to the business; and (8) investment in equipment and facilities. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). Cases that cite this headnote [15] Labor and Employment Joint or multiple employers In “joint employment” cases under FLSA, rather than fixating on whether the worker is relatively more dependent on one putative employer than the other, the court should separately focus on the worker’s relationships Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 226 of 520 PageID 862 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 with each putative employer. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). Cases that cite this headnote [16] Labor and Employment Joint or multiple employers In “joint employment” cases under FLSA, evidence germane to the issue of economic dependence should be analyzed holistically and qualitatively. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). Cases that cite this headnote [17] Labor and Employment Suffering or permitting to work Common law principles of employment have no bearing on FLSA's “suffer or permit to work” standard. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). 1 Cases that cite this headnote [18] Labor and Employment Employment relationship Labor and Employment Suffering or permitting to work The ultimate question in determining joint employer status under FLSA's “suffer or permit to work” standard, is whether, as a matter of economic reality, the hired individual is economically dependent upon the hiring entity. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). Cases that cite this headnote [19] Labor and Employment Joint employers Fruit grower that engaged labor supplier for temporary migrant workers qualified as a “joint employer” of those workers under FLSA's statutory “suffer or permit to work” standard, and thus grower was liable for supplier's FLSA violations stemming from failure to pay promised wages for all hours worked. Fair Labor Standards Act of 1938 § 3, 29 U.S.C.A. § 203(g). 1 Cases that cite this headnote Attorneys and Law Firms *1279 Gregory Scott Schell, Florida Legal Services, Inc., Migrant Farmworker Justice Project, Palm Beach Gardens, FL, Cassandra Jae Capobianco, Florida Institutional Legal Services, Inc., Newberry, FL, James M. Knoepp, Sarah M. Rich, Southern Poverty Law Center, Atlanta, GA, Victoria Mesa–Estrada, Mesa Estrada Law Office, Boynton Beach, FL, for Plaintiffs– Appellees. David John Stefany, Brian Koji, Allen Norton & Blue, PA, Shaina Thorpe, Thorpe & Thorpe PA, Tampa, FL, Chilton Varner, Merritt Ellen McAlister, Billie Barker Pritchard, King & Spalding, LLP, Atlanta, GA, for Defendant–Appellant James Michael Honeycutt, Fisher & Phillips LLP, Charlotte, NC, Ann Margaret Pointer, Fisher & Phillips, LLP, Atlanta, GA, David Andrew Young, Fisher & Phillips, LLP, Orlando, FL, for Amici Curiae. Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 2:10–cv– 00542–MEA–MRM Before TJOFLAT and HULL, Circuit Judges, and BYRON, * District Judge. * Honorable Paul G. Byron, United States District Judge for the Middle District of Florida, sitting by designation. Opinion HULL, Circuit Judge: This appeal arises from a labor dispute involving the H-2A visa program. Defendant Consolidated Citrus Limited Partnership (“Consolidated Citrus”) appeals from the district court’s order granting judgment *1280 in favor of the plaintiffs and holding Consolidated Citrus liable as a joint employer. After review of the record and with the Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 227 of 520 PageID 863 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 benefit of oral argument, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. I. BACKGROUND This litigation has a complex history. We first introduce the parties relevant to this appeal. Next we discuss the way that Consolidated Citrus and its labor contractors managed their daily harvesting operations, the payment arrangements between Consolidated Citrus and it labor contractor, and the kickback scheme that formed the basis of the plaintiffs' claims. We then recount the course of the proceedings in the district court. A. Parties In the initial complaint, eight plaintiffs brought claims against defendants Consolidated Citrus, Ruiz Harvesting, Inc. (“RHI”), and Basiliso Ruiz (“Ruiz”). All original plaintiffs were Mexican nationals who came to the United States temporarily to work as harvesters on citrus groves in central Florida. 1 These plaintiffs entered the United States legally under the federal H-2A visa program, which is detailed below. See Part II, infra. The plaintiffs were employed as temporary laborers during the 2006-07, 2007-08, 2008-09, and/or 2009-10 harvest seasons. 1 The plaintiffs later amended their complaint to include claims brought by one plaintiff who was recruited from within the United States and thus did not fall under the H-2A program. Thirty eight total plaintiffs were named in the amended complaint, thirty seven of whom were foreign H-2A workers. Defendant Consolidated Citrus is a large citrus producer with groves throughout the state of Florida. Consolidated Citrus cultivates several types of oranges, most of which it sells to processing companies to be pressed into juice. Harvesting is a large part of Consolidated Citrus’s operations. Each harvest season typically runs from late November through May or early June. During the 2005-06 harvest season, Consolidated Citrus struggled to find sufficient labor to meet its harvesting needs. Starting with the 2006-07 harvest season, Consolidated Citrus began working with labor contractors to hire temporary foreign workers. One such labor contractor was defendant RHI, owned by defendant Ruiz. As a labor contractor, RHI acted as a liaison between Consolidated Citrus and the temporary workers. RHI would recruit these temporary workers from Mexico and help the workers complete the necessary paperwork for obtaining H-2A visas. For the workers to obtain these visas, RHI was required to file applications with the Department of Labor (“DOL”), which issued certifications allowing RHI to employ temporary foreign workers. Though RHI completed these applications at the direction of Consolidated Citrus, the applications listed RHI as the temporary workers' employer. Once the workers obtained visas, RHI arranged for the workers to travel to the United States and provided housing for the workers in Florida for the duration of their employment. B. Harvesting Operations and Worker Management Before the harvest season began, Consolidated Citrus supervisors tested the fruit in various groves to gauge its readiness for picking. When Consolidated Citrus determined that a particular block of trees was ready for harvesting, Consolidated Citrus would direct RHI to bring a crew of workers to that area and would tell *1281 RHI how much fruit the workers should harvest from that block. Consolidated Citrus expected the temporary workers to be at their assigned groves at some time in the early morning, but RHI personnel ultimately decided what time the workers would arrive. Each day, RHI transported workers to and from the groves in RHI vehicles. Before the harvest season began, Consolidated Citrus issued identification badges to all RHI personnel and temporary workers. Each day when the workers arrived at their assigned groves, they would clock in by scanning their identification badges in a time-tracking device owned by Consolidated Citrus. During the relevant time periods, citrus groves throughout Florida were blighted by a disease called “citrus canker.” Consolidated Citrus implemented procedures designed to prevent harvest workers from spreading the disease from grove to grove. All harvesters were required, before beginning their daily work, to walk through an anti- bacterial mist and to dip their picking sacks into a barrel of decontamination solution. Consolidated Citrus personnel supervised these citrus canker prevention procedures. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 228 of 520 PageID 864 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 After clocking in and finishing the citrus canker prevention procedures, the workers brought in by RHI could start harvesting fruit. RHI provided the workers with ladders, picking sacks, drinking water, and portable toilets for use at the work sites. Once a worker filled a picking sack with fruit, the worker would unload the contents into a tub owned by RHI. When the tub was full, an RHI employee, operating lift equipment owned by RHI, would then raise the tub into a large fruit trailer so that the fruit could be transported to the processor. This would continue until the workers had picked the desired amount of fruit from the block to which they were assigned. Consolidated Citrus supervisors were present to oversee the harvesting process, but each Consolidated Citrus supervisor individually had to oversee as many as ten crews each day, with each crew consisting of around twenty five workers (i.e., approximately 250 workers). Some of these were RHI crews and others were crews of workers brought in by other labor contractors or hired by Consolidated Citrus itself. The crews were spread over an area spanning 8,000 acres, meaning that a Consolidated Citrus supervisor could monitor each outside crew for only a very limited period of time. If a Consolidated Citrus supervisor noticed an issue with the harvest work, the supervisor would report it to the RHI crew leader. Notably, the Consolidated Citrus supervisors did not direct or instruct the workers; rather RHI did. Consolidated Citrus did reserve the authority, however, to halt the workers' activities whenever Consolidated Citrus personnel determined that something was wrong with the harvesting process. Even so, as compared to their oversight of Consolidated Citrus’s own in-house workers, Consolidated Citrus supervisors took on little to no supervisory role when overseeing the work of RHI harvesting crews. If a Consolidated Citrus supervisor was monitoring a crew of its own in-house harvesters, for example, the supervisor would check on equipment, handle equipment repairs, document workplace injuries, resolve disputes between workers, and tell workers when to report back in Florida after a period of leave. When overseeing RHI workers, Consolidated Citrus supervisors did none of those things. C. Consolidated Citrus’s Payment Arrangement with RHI Pursuant to a labor contract, Consolidated Citrus agreed to pay RHI a “pick and roadside rate” for RHI’s services. The pick *1282 and roadside rate was determined based on “the net number of boxes of fruit harvested [by the temporary workers] as determined by the weight of the [harvested] fruit.” This rate could vary based on the particular grove being harvested. Consolidated Citrus agreed to pay a minimum amount per box of oranges, but the amount Consolidated Citrus actually paid RHI per box was often higher than the minimum. RHI then used these funds to cover its operating costs and pay wages owed to the temporary workers. Rather than paying hourly wages, RHI paid the workers based on the amount of fruit they harvested. RHI paid the workers for each box of picked fruit at the “piece rate,” which was usually between $0.85 and $0.90 per box. Though Consolidated Citrus assumed, for purposes of setting the pick and roadside rate, that RHI would pay workers at a piece rate of at least $0.70, RHI was solely responsible for deciding the piece rate at which it paid the workers. Under the H-2A program regulations, agricultural workers compensated on a piece-rate basis must be paid at least the equivalent of the wages they would have received under the applicable “adverse effect wage rate” (“AEWR”), which is the hourly minimum set by the DOL. See Part II, infra. Where a worker’s piece-rate wages do not add up to the wages the worker would have earned under the hourly rate, the employer must supplement that worker’s earnings to meet that minimum wage. This supplemental amount is known as “build-up” pay. RHI’s third-party bookkeeper kept track of both the total number of hours each harvester worked and the amount of fruit the workers harvested. Though RHI ultimately issued paychecks based on its own bookkeeping, Consolidated Citrus was involved in the calculation of hours in two ways. First, using the data from its own time-keeping system, Consolidated Citrus provided daily reports to RHI summarizing the number of hours each RHI worker logged. Second, when Consolidated Citrus sent this information to RHI, Consolidated Citrus unilaterally deducted one hour from each worker’s daily total to account for the time it took for the workers to travel between the grove entrance and the actual picking site. Where necessary based on the number of hours logged and the applicable AEWR, RHI’s bookkeeping software automatically added build-up pay to workers' paychecks. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 229 of 520 PageID 865 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 D. RHI Kickback Scheme RHI perpetrated a kickback scheme to recoup this build- up pay. Ruiz and other RHI representatives told the H-2A temporary workers that the build-up pay came directly from Ruiz’s pocket and that if the workers did not return the buildup pay, RHI would send the workers back to Mexico. On payday, RHI employees drove the H-2A temporary workers to the bank where the workers cashed their paychecks. The workers then returned to the RHI vehicle, where an RHI employee collected cash from each worker in an amount equal to that worker’s build-up pay. H-2A workers were told to return money only to Ruiz and RHI and only when the workers' paychecks included build-up pay. It is undisputed that Consolidated Citrus was unaware of RHI’s kickback scheme. No one from Consolidated Citrus demanded that H-2A temporary workers return their build-up pay, and no H-2A temporary worker ever complained directly to Consolidated Citrus about RHI’s kickback scheme. E. Procedural History In September 2010, eight original plaintiffs filed this action in the United States District Court for the Middle District of *1283 Florida on behalf of themselves and a putative class of similarly situated individuals. In March 2011, the plaintiffs filed an amended complaint, this time naming thirty eight plaintiffs and again including class allegations. In the amended complaint, the plaintiffs asserted claims under the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”) (Counts I-III), under the Fair Labor Standards Act (“FLSA”) (Count IV), for common law breach of contract (Count V), and for violations of Florida’s minimum wage laws (Count VI). In January 2012, four of the plaintiffs settled their claims against all defendants. In October 2012, the district court approved a separate settlement of all claims raised by Francisco Suarez–Galan, who was the sole non-H-2A plaintiff. Suarez-Galan was also the only plaintiff whose claims arose during the 2006-07 season and the only plaintiff asserting AWPA claims. The settlement of his claims eliminated Counts I-III. In February 2012, the district court certified a class of “[a]ll temporary foreign workers (“H-2A workers”) who were employed pursuant to temporary labor certifications issued to [RHI] for work during the 2007-08, 2008-09, and/or 2009-10 Florida citrus harvests.” The plaintiffs' class allegations pertained to only their breach of contract claims (Count V) and their Florida minimum wage claims (Count VI). In May 2013, the district court dismissed defendants RHI and Ruiz from the action after approving a settlement agreement covering all claims against those two defendants. At this point, Consolidated Citrus was the sole remaining defendant, and the only remaining claims were the individual FLSA claims (Count IV), 2 the class- wide breach of contract claims (Count V), and the class- wide Florida minimum wage claims (Count VI). 2 The plaintiffs' FLSA claims were predicated on the minimum wage provisions of that statute. In part, the plaintiffs alleged that the defendants failed to pay minimum wage as required under the FLSA because of the build-up pay kickback scheme. The plaintiffs also alleged that their pay fell short of the minimum wage required under the statute because the defendants did not reimburse workers for expenses the workers incurred while applying for visas and traveling to the United States. The parties filed cross-motions for summary judgment as to the remaining claims. The district court denied the plaintiffs' motion altogether, but granted in part and denied in part Consolidated Citrus’s motion. As to the class-wide Florida minimum wage claims (Count VI), the district court determined that the plaintiffs failed to comply with the pre-suit notice requirements of the Florida Minimum Wage Act. The district court granted Consolidated Citrus’s motion as to those Florida minimum wage claims and dismissed Count VI. As to the FLSA claims (Count IV) and breach of contract claims (Count V), the district court denied Consolidated Citrus’s motion for summary judgment. The central issue to be decided was whether Consolidated Citrus could be held liable as a joint employer with RHI. With respect to the breach of contract claims (Count V), the district court concluded that the expansive FLSA statutory standard applied for purposes of determining whether Consolidated Citrus was an H-2A joint employer during the 2007-08 and 2008-09 harvest seasons. 3 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 230 of 520 PageID 866 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 3 The district court determined that the narrow common law principles of agency applied for purposes of determining whether Consolidated Citrus was a joint employer during the 2009-10 harvest season. The plaintiffs later dropped all claims relating to that 2009-10 season. The district court also determined that genuine issues of fact precluded summary *1284 judgment on the issue of Consolidated Citrus’s liability as a joint employer under that FLSA standard. The parties proceeded to trial for resolution of the remaining FLSA claims (Count IV) and breach of contract claims (Count V). After a bench trial, the district court concluded that, for purposes of claims relating to the 2007-08 and 2008-09 seasons, Consolidated Citrus constituted a joint employer under the broad FLSA standard. The district court entered judgment in favor of the plaintiffs and ordered Consolidated Citrus to pay damages totaling $2,722.20 on the individual FLSA claims (Count IV) and $192,434.34 on the class-wide breach of contract claims (Count V). In February 2016, Consolidated Citrus timely filed a Notice of Appeal. On appeal, Consolidated Citrus primarily argues that the common law principles of agency, and not the FLSA statutory “suffer or permit to work” standard, govern whether Consolidated Citrus is a joint employer for purposes of the plaintiffs' breach of contract claims. As to the FLSA claims, for which all parties agree that the FLSA statutory “suffer or permit to work” standard applies, Consolidated Citrus argues that the trial evidence shows that it is not a joint employer even under that expansive FLSA statutory “suffer or permit to work” standard. [1] [2] Below, we outline the relevant statutory and regulatory principles. Next, as to the breach of contract claims, we discuss whether the FLSA standard or the common law principles of agency govern whether Consolidated Citrus qualifies as a joint employer for the 2007-08 and 2008-09 harvest seasons. After concluding that the narrower common law standard applies to the breach of contract claims, we remand to the district court to apply that governing legal standard to the extensive factual findings made by the trial judge. But as to the FLSA claims, we agree with the district court that, under the evidence in this case, Consolidated Citrus is a joint employer under the expansive FLSA statutory “suffer or permit to work” standard. 4 4 After a bench trial, we review the district court’s conclusions of law de novo and the district court’s findings of fact for clear error. Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d 1253, 1257 (11th Cir. 2015). The question of whether to hold a company liable as a joint employer is a question of law. Aimable v. Long & Scott Farms, 20 F.3d 434, 440 (11th Cir. 1994). II. STATUTORY AND REGULATORY OVERVIEW We start by discussing the statutory basis of the H-2A visa program and the varying ways in which “employer” and other related terms, such as “employ” and “employee,” have been interpreted in relation to the H-2A program. A. H-2A Visa Program The federal H-2A visa program is a statutory creature of the Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. 99–603, 100 Stat. 3359, which amended certain provisions of the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1101(a)(15)(H) (ii)(a) (defining temporary agricultural workers as a class of “nonimmigrant aliens”); 8 U.S.C. § 1188(i)(2) (defining “H-2A worker” as a nonimmigrant alien as defined in § 1101(a)(15)(H)(ii)(a)); 8 U.S.C. § 1188 (providing the conditions under which employers may hire foreign temporary workers under the H-2A program). Under the INA, as amended by the IRCA, an “employer” seeking to hire temporary foreign agricultural workers must first obtain a certification from the DOL. 8 U.S.C. § 1188(a)(1). The Secretary of Labor is authorized to grant an “employer” *1285 such certification where (1) “there are not sufficient workers who are able, willing, and qualified” to perform the work and (2) employing foreign workers “will not adversely affect the wages and working conditions of workers in the United States similarly employed.” Id. If the Secretary of Labor so certifies, then the Attorney General may approve the petition to hire foreign workers. Id. The applicable H-2A regulations impose a number of requirements on an “employer” of temporary workers under the program. An “employer” seeking to hire H-2A workers must file an application with the DOL, commonly called a “clearance order,” which includes a copy of the Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 231 of 520 PageID 867 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 job offer for which the “employer” is seeking candidates. 20 C.F.R § 655.101(b)(1) (2006); 5 See Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1233 n.5 (11th Cir. 2002) (noting that the application is commonly called a “clearance order”). The clearance order must contain the terms and conditions of employment as dictated by the H-2A regulations. 20 C.F.R. § 655.101(b)(1) (2006); 20 C.F.R. § 655.102 (2006); 20 C.F.R. § 653.501 (2006). The “employer” also must attach to the application an agreement to abide by all H-2A regulations. 20 C.F.R. § 655.101(b)(2) (2006). 5 The regulations governing the H-2A program have been amended and renumbered since the initiation of this action. For the sake of clarity, except where otherwise noted, in Part II.A we reference the version of the regulations that were in force between 2006 and 2015. The H-2A regulations further require an “employer” to provide certain minimum benefits to H-2A temporary workers. By requiring that the “employer” provide these baseline benefits, the regulations ensure that foreign workers will not appear more attractive to the “employer” than domestic workers, thus avoiding any adverse effects for domestic workers. See 20 C.F.R. § 655.102(a) (2006). The benefits ensure minimum working standards, including adequate wages, sufficient benefits, and sound working conditions. See 20 C.F.R. § 655.102(b) (2006). For example, the regulations require that the foreign workers be provided with housing, meals, equipment, and transportation. See id. Especially pertinent here is that the H-2A regulations require that the “employer” pay workers either the AEWR or the federal minimum hourly wage rate, whichever is higher. 20 C.F.R. § 655.102(b)(9)(i) (2006). The AEWR is the minimum hourly wage rate that is necessary, in the estimation of the DOL, to ensure that wages of similarly employed domestic workers will not be adversely affected by the hiring of foreign H-2A workers. 20 C.F.R. § 655.100(b) (2006). The DOL publishes the applicable AEWR at least once each year. See 20 C.F.R. § 655.120(c) (2016). Where the worker is paid on a piece-rate basis and the worker’s total pay is less than the worker would have received on an hourly basis, the “employer” must supplement the worker’s pay so that the pay is commensurate with the pay that the worker would have received had the worker been paid hourly at the AEWR. 20 C.F.R. § 655.102(b)(9)(ii) (2006). In addition, the H-2A regulations require the “employer” to provide each worker with a copy of the “work contract.” 20 C.F.R. § 655.102(b)(14) (2006). The contract itself must include the required worker protections as set forth in the regulations. Id. If the employer does not provide a separate written contract, the clearance order, which the employer submits to apply for certification to hire H-2A workers, serves as the work contract. Id. It is on the basis of the clearance order, which served as the workers' contracts, that the plaintiffs in this suit brought their *1286 breach of contract claims. The plaintiffs alleged that, because of the build-up pay kickback scheme, defendants RHI, Ruiz, and Consolidated Citrus did not pay H-2A workers what the workers would have received as hourly workers paid at the AEWR. The plaintiffs claimed that this constituted a breach of their work contracts. See Arriaga, 305 F.3d at 1246 (recognizing that a clearance order is an agreement upon which workers can bring breach of contract claims). To be liable for breach of these H-2A contracts, Consolidated Citrus must qualify as an employer, or at least a joint employer, of the plaintiffs. Thus, as to the plaintiffs' breach of contract claims, Consolidated Citrus’s liability turns on the meaning of “employer” and other related terms as they are used in the INA as amended by the IRCA. B. “Employer” in the INA as Amended by the IRCA The INA, as amended by the IRCA in 1986, uses the term “employer” over forty times in relation to the H-2A program. The INA as amended, however, does not explicitly define “employer.” The INA as amended also does not define the related terms “employ,” “employee,” or “joint employer.” Consolidated Citrus contends that when Congress does not clearly define such a common term, courts should apply the settled common law meaning of the term. Consolidated Citrus offers two main reasons why the common law principles apply. First, Consolidated Citrus submits that the Supreme Court instructed in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), that the settled common law meaning of a statutory term applies unless the statute otherwise clearly dictates or defines the term. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 232 of 520 PageID 868 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 At issue in Darden was the meaning of the term “employee” as it is used in the Employee Retirement Income Security Act of 1974 (“ERISA”). Id. at 319, 112 S.Ct. at 1346. ERISA limits the classes of persons entitled to bring civil enforcement actions under its substantive provisions. 29 U.S.C. § 1132(a). Plaintiff Darden sought to bring an action under the ERISA provision that allows an individual to sue in his capacity as a plan “participant,” which is defined in the statute as “any employee ... of an employer” who is entitled to benefits under a plan governed by ERISA. Darden, 503 U.S. at 320–21, 112 S.Ct. at 1347; 29 U.S.C. §§ 1002(7), 1132(a)(1). ERISA defines the term “employee” as “any individual employed by an employer” and “employer” as “any person acting directly as an employer....” 29 U.S.C. § 1002(6), (5). The Supreme Court in Darden noted that ERISA’s definition of “employee” is “completely circular and explains nothing.” 503 U.S. at 323, 112 S.Ct. at 1348. [3] The Supreme Court in Darden then explained how to construe the meaning of a statutory term where the statute explains nothing helpful. The Supreme Court recognized that “[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” Id. at 322, 112 S.Ct. at 1348 (internal quotation marks omitted) (quoting Cmty. for Creative Non–Violence v. Reid, 490 U.S. 730, 739, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989)). Thus, where Congress uses the term “employee” in a statute but does not clearly define it, reviewing courts should assume that the term “employee” refers to the “conventional master-servant relationship as understood by common- law agency doctrine.” Id. at 322–23, 112 S.Ct. at 1348 *1287 (internal quotation marks omitted) (quoting Reid, 490 U.S. at 740, 109 S.Ct. at 2172). [4] [5] Second, Consolidated Citrus points out that in some labor statutes, but not all of them, Congress defined by statute what constitutes an employment relationship differently from and broader than the common law meaning. In the FLSA, which was adopted in 1938, Congress defined the term “employ” to “include[ ] to suffer or permit to work.” 29 U.S.C. § 203(g). As interpreted by the Supreme Court, this statutory “suffer or permit to work” definition is one of the broadest possible delineations of the employer-employee relationship. See United States v. Rosenwasser, 323 U.S. 360, 362–63, 363 n.3, 65 S.Ct. 295, 296–97, 296 n.3, 89 L.Ed. 301 (1945). In 1983, when Congress enacted the AWPA, 6 it adopted the same sweeping statutory “suffer or permit to work” definition of the term “employ,” incorporating the FLSA definition by reference. 29 U.S.C. § 1802(5). Notably, the H-2A provisions of the IRCA amendments to the INA did not adopt the expansive FLSA statutory definition and left the common term “employer” undefined. 6 The AWPA provides certain labor rights to domestic agricultural workers and allows those workers to sue their employers to enforce those rights. See Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996). Counts I-III of the amended complaint asserted AWPA claims on behalf of the sole non- H-2A plaintiff. C. H-2A Regulations from 1987 to 2008 Opposing Consolidated Citrus’s position, the plaintiffs rely on the DOL’s regulations. We review (1) the DOL’s regulations about the H-2A program in which the DOL defined “employer” using the FLSA’s expansive statutory “suffer or permit to work” standard and (2) how the DOL in 2009 discarded that standard and amended those regulations to conform with Darden and to adopt the common law principles. Although the DOL abandoned it in 2009, the plaintiffs contend that this 1987 regulation should apply here for purposes of the 2007-08 and 2008-09 harvest seasons. Under the 1987 regulations for the H-2A program, the term “employer” was defined to mean “a person, firm, corporation or other association or organization which suffers or permits a person to work ... as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee.” 20 C.F.R. § 655.100(b) (1987) (emphasis added). 7 The 1987 regulation for the H-2A program did not say so, but the standard in that 1987 regulation is the same as the broad statutory definition used in the FLSA and the AWPA. 7 The 1987 DOL regulation did not define the related terms “employ” or “employee.” See 20 C.F.R. § 655.100(b) (1987). [6] As noted above, the “suffer or permit to work” standard has been recognized as one of the broadest definitions of “employ” possible. See Rosenwasser, 323 U.S. at 362–63, 363 n.3, 65 S.Ct. at 296–97, 296 n.3. When Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 233 of 520 PageID 869 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 determining whether an employment relationship exists under this standard, courts are not guided by common law definitions of “employer” and “employee.” Aimable v. Long & Scott Farms, 20 F.3d 434, 439 (11th Cir. 1994). Rather, under this expansive approach, an entity is deemed to employ a worker where, as a matter of “economic reality” and under all the circumstances, the worker is “economically dependent” on the hiring entity. Id. at 439. The “suffer or permit to work” standard remained in the H-2A regulations from 1987 through the end of 2008. *1288 D. H-2A Regulations from 2009 to the Present In 2009, the DOL amended the H-2A regulations to adopt the common law meaning of an employer-employee relationship. 8 20 C.F.R. § 655.100(c) (2009). In its 2008 notice of proposed rulemaking and request for comments pertaining to the forthcoming 2009 amendment, the DOL explained that it was proposing a new definition of the employer-employee relationship as a clarification and to avoid confusion that may exist for employers with obligations under the FLSA, the AWPA, and the H-2A program. 73 Fed. Reg. 8538-01 (Feb. 13, 2008). The DOL advised that the new definition would “conform[ ] to the Supreme Court’s holding in Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 322–324, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992).” Id. (case name not underlined in original). The 2009 version provided that “[e]mployee means employee as defined under the general common law of agency.” 20 C.F.R. § 655.100(c) (2009). The 2009 regulation further outlined these common law factors relevant to determining employer-employee status: [T]he hiring party’s right to control the manner and means by which the work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring party’s discretion over when and how long to work; and whether the work is part of the regular business of the hiring party. Id. 9 The 2009 regulation noted that other factors may be considered and that no one factor is dispositive. Id. “Joint employment” is defined in the 2009 regulation to include any entity with “sufficient definitional indicia of employment to be considered the employer of an employee.” Id. The factors adopted in the DOL’s 2009 regulation are consistent with the general common law principles of agency, which apply when Congress uses a common term but does not otherwise clearly define it. See Darden, 503 U.S. at 323–24, 112 S.Ct. at 1348–49. 8 The DOL proposed and approved this new regulatory definition in 2008, but the changes did not take effect until January 2009. We refer to this new definition as the 2009 version. 9 Under the current regulations, this definition appears in 20 C.F.R. § 655.103(b). The current definition is almost identical to the 2009 version. At least with respect to all H-2A contracts effective in 2009 and later, it is clear that the DOL intended for the common law principles of agency to govern whether an entity is liable as an employer or joint employer. The lingering question is whether the common law principles should also govern the joint employment question for purposes of the H-2A program for the harvest seasons prior to 2009. III. BREACH OF CONTRACT CLAIMS Given this background, the central issue on appeal is what legal standard—the common law principles of agency or the DOL regulations—govern whether Consolidated Citrus was a joint employer under the H-2A program for purposes of the plaintiffs' breach of contract claims involving the 2007-08 and 2008-09 harvest seasons. 10 10 We summarily reject the plaintiffs' claim that Consolidated Citrus did not adequately preserve the issues raised on appeal. A. Darden and Step One of Chevron Deference [7] Our consideration here is guided by the Chevron framework, which helps us determine whether the administrative action *1289 in question is entitled to deference on judicial review. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44, 104 S.Ct. 2778, 2781–82, 81 L.Ed.2d 694 (1984). Under Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 234 of 520 PageID 870 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 that approach, when reviewing an agency’s interpretation of a statute, we first ask whether “Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. at 2781. If we answer that question in the affirmative, and the Congressional directive is clear, we must “give effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. at 2781. But where the Congressional directive is ambiguous or otherwise unclear, we ask whether the agency’s interpretation of the issue “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2781–82. [8] The agency action at issue here is the DOL’s 1987 rulemaking, in which the DOL adopted the “suffer or permit to work” standard for determining employer- employee status under the H-2A program. Our Chevron analysis of this rule ends at step one. A review of the statutory language and the other legislation in existence at the time of the passage of the IRCA amendments to the INA reveals that Congress intended for the common law principles of agency to govern the statutory term “employer” for purposes of the H-2A statute in the IRCA amendments. Because Congress has directly spoken to the issue, the 1987 DOL regulation is not entitled to deference. [9] We begin with the statutory language in the INA as amended by the IRCA. As noted earlier, the H-2A statutory provisions in the IRCA amendments, which are now codified as part of the INA, use the term “employer” numerous times without explicitly defining that term. See, e.g., 8 U.S.C. § 1188. Nonetheless, when we construe a statutory provision, we must read it in context, giving due consideration to the provision’s place in the overall legislative scheme. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 1301, 146 L.Ed.2d 121 (2000). At the time when Congress enacted the IRCA amendments to the INA, there were two different standards available for defining the employer-employee relationship for purposes of the H-2A program—the FLSA’s “suffer or permit to work” approach and the common law principles of agency. When Congress enacted the AWPA in 1983, it chose to adopt the more expansive “suffer or permit to work” standard, expressly incorporating that standard by reference to the FLSA. When it enacted the IRCA amendments to the INA in 1986, however, Congress did not adopt that FLSA approach. Instead, Congress chose not to define the common term “employer” in the IRCA amendments at all and thereby chose to rely on the established common law meaning of that term. The reasoning of Darden confirms that when Congress declined to incorporate the FLSA’s statutory “suffer or permit to work” standard in the IRCA amendments to the INA, and instead provided no clear statutory definition of the term “employer,” it intended the common law principles of agency to dictate the parameters of the employment relationship under the H-2A program. See 503 U.S. at 322–24, 112 S.Ct. at 1348. The Supreme Court in Darden did not fashion this common-law-meaning rule of statutory construction from whole cloth. Darden derived this concept from Reid, which in turn relied on a rule of statutory construction from the Supreme Court’s 1981 decision in NLRB v. Amax Coal Co. See Reid, 490 U.S. at 739, 109 S.Ct. at 2172 (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981)). In the 1981 Amax Coal decision, which was issued years before Congress enacted *1290 the IRCA amendments to the INA, the Supreme Court reiterated the general rule that “[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” 453 U.S. at 329, 101 S.Ct. at 2794. Thus, at the time when Congress enacted the IRCA amendments to the INA, it was well-settled that statutory silence on the meaning of “employer” would trigger statutory interpretation consistent with that term’s common law meaning. [10] Viewed against this background and the FLSA’s and the AWPA’s statutory “suffer or permit to work” standard, Congress’s choice to omit that statutory standard in the IRCA amendments to the INA is significant. Congress’s silence as to the definition of “employer” indicates that Congress intended for that term to be construed in a manner consistent with its common law meaning. 11 See Darden, 503 U.S. at 322–24, 112 S.Ct. at 1348. In these circumstances, we must “give effect” to Congress’s choice not to graft the FLSA and AWPA standards onto the H-2A program. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ––––, ––––, 133 S.Ct. 2517, 2529, 186 L.Ed.2d 503 (2013) (concluding that Congress -------- ---- Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 235 of 520 PageID 871 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 acted deliberately when it included certain provisions in parts of Title VII but omitted them elsewhere). 11 When construing the meaning of the statutory language chosen by Congress, “[w]e must respect the compromise embodied in the words” as they are codified. Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980). As noted by the amici in this case, the IRCA, which amended the INA to create the current H-2A program, was the product of a careful compromise between advocates for farmers, advocates for workers, and civil rights groups. The final product did not endorse the “suffer or permit to work” statutory standard for defining employment relationships. There is also nothing in the legislative history of the IRCA amendments to the INA that indicates that the legislators or the stakeholders intended for the “suffer or permit to work” standard to apply. We accordingly do not reach the second step of the Chevron analysis. Based on Darden’s rule of statutory construction and the fact that Congress deliberately did not adopt in the IRCA amendments to the INA the statutory “suffer or permit to work” standard used in the FLSA and the AWPA, we conclude that the common law principles of agency govern the employment inquiry under the H-2A program. Because under our statutory analysis the common law principles govern here, the 1987 DOL regulation, which adopted the “suffer or permit to work” standard, is not entitled to deference and has “no effect.” See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1320 (11th Cir. 2011). Accordingly, the common law standard, and not the “suffer or permit to work” standard adopted in the 1987 DOL regulation, governs the issue of whether Consolidated Citrus qualifies as a joint employer for purposes of the plaintiffs' breach of contract claims for all the harvest seasons at issue. B. The Plaintiffs' Arguments The plaintiffs advance four arguments in support of their position that the 1987 DOL regulation, which adopted the “suffer or permit to work” standard, provides the governing standard for purposes of determining whether Consolidated Citrus is liable for breach of contract as a joint employer. In the interest of completeness, we address those arguments below. First, the plaintiffs contend that applying the common law principles of agency instead of the “suffer or permit to work” standard will thwart the purpose of the H-2A program, which is to allow aliens to work temporarily in the United States *1291 without rendering foreign agricultural workers more attractive to employers than domestic agricultural workers. According to the plaintiffs, applying the narrower common law principles of agency for purposes of the H-2A program while applying the more expansive “suffer or permit to work” definition for purposes of the AWPA would create a two-tiered system of worker protections—a stronger one for domestic workers under the AWPA and a weaker one for foreign workers under the H-2A program. The plaintiffs argue that applying the narrower common law principles for the H-2A program will limit the entities against which foreign H-2A workers can bring a legal action to vindicate their rights, making foreign workers more attractive to employers. It is unclear whether Congress contemplated this potential incongruity when it enacted the IRCA amendments to the INA. What is clear, however, is that Congress chose not to adopt the FLSA’s or the AWPA’s “suffer or permit to work” standard in the IRCA amendments to the INA. The statutory directive of the IRCA amendments is apparent, and we are not free to ignore that directive because of what the plaintiffs perceive to be a shortcoming in legislative policy. See Nassar, 570 U.S. at ––––, 133 S.Ct. at 2529. Second, the plaintiffs argue that Darden’s rule of statutory construction applies only for purposes of determining whether a worker is an employee or an independent contractor. The plaintiffs are correct that the statutory term at issue in Darden was “employee” rather than “employer” and that the distinction between employees and independent contractors was relevant to the Supreme Court’s decision in Darden, 503 U.S. at 323, 328, 112 S.Ct. at 1348, 1350–51. As demonstrated below, however, the reasoning of Darden is not limited in the way that the plaintiffs contend. [11] The plaintiffs' argument on this point ignores the breadth of the principle announced in Amax Coal and relied on in Reid. It is a generic rule of statutory construction and is in no way tethered to the context of distinguishing independent contractors from employees. See Amax Coal, 453 U.S. at 329, 101 S.Ct. at 2794. That canon of statutory construction provides, in general terms, that any statutory term with established meaning under the common law is to be construed in a manner Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 236 of 520 PageID 872 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 consistent with that common law meaning unless the statute says otherwise. Id. It was this general rule that informed the Supreme Court’s decision in Darden, 503 U.S. at 322–23, 112 S.Ct. at 1348. Furthermore, the Supreme Court has relied on that same broad principle of statutory interpretation to determine the meaning of a different term as used in a different statute, demonstrating that the principle applies for purposes other than merely distinguishing between employees and independent contractors. See Neder v. United States, 527 U.S. 1, 21–23, 119 S.Ct. 1827, 1840, 144 L.Ed.2d 35 (1999) (relying on Darden to construe the term “defraud,” as used in federal criminal fraud statutes, in a manner consistent with its settled meaning under the common law). The rule applied in Darden is apposite in this case. Third, relying on the Supreme Court’s decision in NLRB v. Town & Country Electric, Inc., the plaintiffs contend that Darden does not always dictate application of the common law meaning of “employ” and its related variations of “employer” and “employee.” It is true, as the plaintiffs note, that in Town & Country the Supreme Court declined to apply Darden and instead followed the National Labor Relations Board’s (“NLRB”) interpretation of the term “employee.” 516 U.S. 85, 94, 116 S.Ct. 450, 455, 133 L.Ed.2d 371 (1995). But *1292 that case is materially distinguishable from this case in at least two respects. In Town & Country, the Supreme Court noted that it will defer to an agency interpretation where Congress has delegated authority to the agency to define a term. The Supreme Court concluded that, in the context of the National Labor Relations Act (“NLRA”), it was clear that “the task of defining the term ‘employee’ ” as it is used in the NLRA, “[had] been assigned primarily to the agency.” Id. The plaintiffs point to no authority indicating that Congress intended for the DOL to define the term “employer” as it is used in the IRCA in the same way that the NLRB is uniquely tasked with defining the term “employee” as that term is used in the NLRA. See id. at 89–90, 116 S.Ct. at 453 (“[The Supreme Court’s] decisions recognize that the [NLRB] often possesses a degree of legal leeway when it interprets its governing statute, particularly where Congress likely intended an understanding of labor relations to guide the [NLRA]’s application.”). More importantly, the Supreme Court noted in Town & Country that the NLRB’s definition of “employee” was “consistent with the common law.” Id. at 86, 116 S.Ct. at 451. Here, in contrast, the DOL’s 1987 definition of “employer” was at odds with the common law’s more restrictive approach. Moreover, the DOL ultimately abandoned that 1987 definition in 2009. See 20 C.F.R. § 655.100(c) (2009). In short, Town & Country does not counsel in favor of deferring to the DOL’s regulation under Chevron. Fourth, the plaintiffs argue that Darden should not apply here because in that case, “the Supreme Court was not guided by any administrative regulations interpreting the term ‘employee.’ ” This argument turns the Chevron inquiry on its head. The first step of the Chevron analysis is not concerned with the content of the existing regulations. Rather, under Chevron, we must first ask, without reference to the existing regulations, whether Congress has directly spoken to the issue at hand. If it has, we disregard the regulations and effectuate Congress’s clear intent. Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. Thus, the fact that Darden was decided in the absence of implementing regulations does nothing to undermine the Supreme Court’s holding in that case regarding the application of settled common law principles of agency in the absence of a clear statutory definition otherwise. With or without consideration of implementing regulations, Darden plainly tells us what Congress meant when it used the term “employer” without providing a statutory definition for that term. Because Congress indicated by its silence that, for purposes of the H-2A provisions of the statute, the common law governed rather than the “suffer or permit to work” standard, our analysis ends at Chevron step one. In sum, the common law principles of agency are the proper standard for determining whether Consolidated Citrus is liable as a joint employer for breach of the plaintiffs' H-2A work contracts for the 2007-08 and 2008-09 harvest seasons. We thus reverse the decisions below to the extent that the district court applied the “suffer or permit to work” standard to determine whether Consolidated Citrus was a joint employer for purposes of the plaintiffs' breach of contract claims. We next consider the application of the governing common law standard to the circumstances of this case. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 237 of 520 PageID 873 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 C. Common Law Analysis [12] [13] Under the governing common law standard, the proper focus is the hiring entity’s “right to control the manner and means by which the product is accomplished.” *1293 Darden, 503 U.S. at 323, 112 S.Ct. at 1348 (internal quotation marks omitted) (quoting Reid, 490 U.S. at 751, 109 S.Ct. at 2178). The Supreme Court in Darden identified several factors relevant to determining whether an employer-employee relationship exists under the common law principles of agency: (1) “the skill required;” (2) “the source of the instrumentalities and tools;” (3) “the location of the work;” (4) “the duration of the relationship between the parties;” (5) “whether the hiring party has the right to assign additional projects to the hired party;” (6) “the extent of the hired party’s discretion over when and how long to work;” (7) “the method of payment;” (8) “the hired party’s role in hiring and paying assistants;” (9) “whether the work is part of the regular business of the hiring party;” (10) “whether the hiring party is in business;” (11) “the provision of employee benefits;” and (12) “the tax treatment of the hired party.” 12 Id. at 323–24, 112 S.Ct. at 1348. Though these factors may be instructive, “there is no shorthand formula or magic phrase that can be applied to find the answer” under the common law approach. NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). 12 The common law factors listed in the DOL’s 2009 H-2A regulations are consistent with the common law factors listed in Darden. Compare 20 C.F.R. § 655.100(c) (2009) with Darden, 503 U.S. at 323–24, 112 S.Ct. at 1348. Following the bench trial on the FLSA and breach of contract claims, the district court made extensive findings of fact, many of which will be relevant for purposes of conducting the common law analysis for the breach of contract claims. Mem. Op. and Order 2–26, ECF No. 222. The district court failed, however, to apply the common law principles to decide whether Consolidated Citrus qualifies as a joint employer under the H-2A program and instead decided that issue under the “suffer or permit to work” standard. Therefore, we remand this case to the district court to decide in the first instance whether, under the common law principles of agency, Consolidated Citrus qualifies as a joint employer for purposes of the plaintiffs' breach of contract claims. See Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1347–48 (11th Cir. 2005) (“The district court’s failure to conduct the proper inquiry requires us to remand this issue....”); Original Appalachian Artworks, Inc. v. S. Diamond Assocs., Inc., 911 F.2d 1548, 1550 n.3 (11th Cir. 1990) (declining to consider a claim not first decided by the district court). On remand, the district court need not take further evidence or engage in further fact finding. Rather, the district court should apply the proper common law standard to the extensive factual findings in its previous Memorandum Opinion and Order. Mem. Op. and Order 2–26, ECF No. 222. IV. FLSA CLAIMS The final issue is whether Consolidated Citrus qualifies as a joint employer for purposes of the plaintiffs' FLSA claims. The FLSA’s statutory “suffer or permit to work” standard is the proper legal standard for making this FLSA determination. Consolidated Citrus maintains, however, that even under the FLSA’s expansive “suffer or permit to work” standard, Consolidated Citrus does not qualify as a joint employer. 13 13 As noted earlier, after a bench trial, we review the district court’s conclusions of law de novo and findings of fact for clear error. Tartell, 790 F.3d at 1257. Whether an entity qualifies as a joint employer is a question of law. Aimable, 20 F.3d at 440. *1294 A. Joint Employment Under the “Suffer or Permit to Work” Standard [14] This Court has identified eight factors to be considered in determining whether an entity qualifies as an employer under the FLSA “suffer or permit to work” standard: 14 (1) “[t]he nature and degree of control of the workers;” (2) “[t]he degree of supervision, direct or indirect, of the work;” (3) “[t]he power to determine the pay rates or the methods of payment of the workers;” (4) “[t]he right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;” (5) “[p]reparation of payroll and the payment of wages;” (6) “ownership of facilities where work occurred;” (7) “performance of a specialty job integral to the business;” and (8) “investment in equipment and Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 238 of 520 PageID 874 Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276 (2016) 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 16 facilities.” Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1176 (11th Cir. 2012) (citing Aimable, 20 F.3d at 438–44) (noting that, with respect to the eighth factor, the relevant comparison is the amount of investment in equipment and facilities by the land owner versus the contractor). We refer to these factors as the “Aimable factors.” 14 The joint employer analysis may apply differently depending on whether the claims at issue arise under the FLSA, the AWPA, or both. See Layton v. DHL Express (USA), Inc., 686 F.3d 1172, 1175–78 (11th Cir. 2012) (discussing the different analyses applicable in the context of FLSA and AWPA claims and the reasons for the doctrinal divergence); see also Charles v. Burton, 169 F.3d 1322, 1329 (11th Cir. 1999) (setting out a separate seven-factor test for determining whether an entity is a joint employer under the AWPA and the relevant regulations). We need not discuss the details of the AWPA-related analysis because the parties separately settled the non- H-2A plaintiff’s AWPA claims before the district court ruled on Consolidated Citrus’s status as a joint employer. [15] [16] [17] When applying the Aimable factors, courts should heed five overarching principles. First, in joint employer cases, rather than fixating on whether the worker is relatively more dependent on one putative employer than the other, the court should separately focus on the worker’s relationships with each putative employer. Layton, 686 F.3d at 1177 (quoting Antenor v. D & S Farms, 88 F.3d 925, 932–33 (11th Cir. 1996)). Second, no one factor is dispositive. Id. Third, the eight factors are useful because they indicate economic dependence. This means that the weight given to each factor will depend upon the extent to which it is probative of the worker’s economic dependence on the putative employer under the circumstances. Id. Fourth, there is no mathematical formula for determining the existence of a joint employment relationship. Evidence germane to the issue of economic dependence should be analyzed holistically and qualitatively. Id. at 1178. Fifth, the common law principles of employment have no bearing on the “suffer or permit to work” analysis. Id. [18] The ultimate question, when applying these Aimable factors to determine joint employer status under the FLSA “suffer or permit to work” standard, is whether, as a matter of “economic reality,” the hired individual is “economically dependent” upon the hiring entity. See Aimable, 20 F.3d at 439. B. The District Court Correctly Applied the Aimable Factors [19] As to the plaintiffs' FLSA claims, the district court correctly identified the Aimable factors as the governing standard for determining whether Consolidated Citrus qualifies as a joint employer. After de novo review of the district court’s well-reasoned decision and the extensive record in this case, we agree with the district court’s legal conclusion that Consolidated Citrus qualifies as a joint employer under *1295 the FLSA statutory “suffer or permit to work” standard. We affirm the district court’s decision as to this issue. V. CONCLUSION Based on the foregoing, we affirm in part, reverse in part, and remand this case to the district court for further proceedings consistent with this opinion. To the extent that the district court held Consolidated Citrus liable as a joint employer for purposes of the plaintiffs' FLSA claims, we affirm. We reverse, however, the district court’s determination that the FLSA “suffer or permit to work” standard applied to the breach of contract claims for purposes of determining whether Consolidated Citrus qualifies as a joint employer under the H-2A program. The common law principles of agency govern that question. We remand to the district court to apply, in the first instance, that governing standard for purposes of the plaintiffs' breach of contract claims. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. All Citations 843 F.3d 1276, 27 Wage & Hour Cas.2d (BNA) 116, 26 Fla. L. Weekly Fed. C 1067 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 239 of 520 PageID 875 Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256 (2004) 2004-1 Trade Cases P 74,283, 69 U.S.P.Q.2d 1635, 63 Fed. R. Evid. Serv. 479... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 357 F.3d 1256 United States Court of Appeals, Eleventh Circuit. HICKSON CORPORATION, Plaintiff– Counter–Defendant–Appellee Cross–Appellant, v. NORTHERN CROSSARM CO., INC., Patrick Bischel, in his individual capacity, Defendants– Counter–Claimants–Appellants Cross–Appellees. No. 02–15899. | Jan. 26, 2004. Synopsis Background: Wood preservative product seller brought action against producer of pressure treated wood which used wood preservative from seller's competitor, seeking that producer retract advertisement and asserting Lanham Act and Georgia Deceptive Trade Practices Act and related claims. Producer counterclaimed for libel and tortious interference with contract and business relations. Cross motions for summary judgment were filed. The United States District Court for the Northern District of Georgia, No. 00-01525-CV-WBH-1, Willis B. Hunt, Jr., J., 235 F.Supp.2d 1352, granted motions. Appeals were taken. [Holding:] The Court of Appeals, Goodwin, Circuit Judge, sitting by designation, held that: District Court's inadvertent disregard of consumer survey research offered by seller required vacatur of summary judgment against seller on his claim alleging false advertising in violation of the Lanham Act. Affirmed in part, vacated and remanded in part. West Headnotes (13) [1] Federal Courts Summary judgment Court of appeals reviews a district court's grant of summary judgment de novo, applying the same legal standards applied by the district court. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 10 Cases that cite this headnote [2] Federal Civil Procedure Materiality and genuineness of fact issue An issue of fact is “material” for purposes of a summary judgment motion if, under the applicable substantive law, it might affect the outcome of the case. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 636 Cases that cite this headnote [3] Federal Civil Procedure Materiality and genuineness of fact issue An issue of fact is “genuine” for purposes of a summary judgment motion if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 788 Cases that cite this headnote [4] Federal Civil Procedure Lack of cause of action or defense Federal Civil Procedure Right to judgment as matter of law A court on motion for summary judgment must decide whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 374 Cases that cite this headnote [5] Federal Civil Procedure Burden of proof Where the nonmoving party on summary judgment motion bears the burden of proof at trial, the moving party may discharge this initial responsibility by showing that there is an absence of evidence to support the nonmoving party's case or by showing that the Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 240 of 520 PageID 876 Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256 (2004) 2004-1 Trade Cases P 74,283, 69 U.S.P.Q.2d 1635, 63 Fed. R. Evid. Serv. 479... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 nonmoving party will be unable to prove its case at trial. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1185 Cases that cite this headnote [6] Federal Civil Procedure Burden of proof To survive summary judgment, the nonmoving party bearing the ultimate burden of proof at trial must come forward with evidence sufficient to withstand a directed verdict motion. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 45 Cases that cite this headnote [7] Antitrust and Trade Regulation Advertising, Marketing, and Promotion To succeed on a false advertising claim under the Lanham Act, a plaintiff must establish that: (1) the advertisements of the opposing party were false or misleading; (2) the advertisements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on purchasing decisions; (4) the misrepresented product or service affects interstate commerce; and (5) the movant has been—or is likely to be—injured as a result of the false advertising. Lanham Trade–Mark Act, § 43(a), 15 U.S.C.A. § 1125(a). 80 Cases that cite this headnote [8] Antitrust and Trade Regulation Advertising, Marketing, and Promotion In order to establish that advertisements of the opposing party were false or misleading under the Lanham Act, plaintiff must show that the statements at issue were either (1) commercial claims that are literally false as a factual matter or (2) claims that may be literally true or ambiguous but which implicitly convey a false impression, are misleading in context, or likely to deceive consumers. Lanham Trade– Mark Act, § 43, 15 U.S.C.A. § 1125. 69 Cases that cite this headnote [9] Antitrust and Trade Regulation Weight and sufficiency Antitrust and Trade Regulation Consumer data and market research; tests and surveys A Lanham Act plaintiff attempting to establish that an advertisement is literally true but misleading must present evidence of deception in the form of consumer surveys, market research, expert testimony, or other evidence. Lanham Trade–Mark Act, § 43, 15 U.S.C.A. § 1125. 50 Cases that cite this headnote [10] Federal Courts Reversal or Vacation of Judgment in General Court's inadvertent disregard of consumer survey research offered by wood preservative product seller required vacatur of summary judgment granted against seller on his claim alleging false advertising in violation of the Lanham Act; seller's expert submitted declaration and statement regarding consumer survey research, but court did not address expert's research in its order. Lanham Trade–Mark Act, § 43, 15 U.S.C.A. § 1125; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 6 Cases that cite this headnote [11] Torts Business relations or economic advantage, in general Torts Contracts To prevail on claims of tortious interference with contract or business relationships under Georgia law, a plaintiff must show that a defendant acted improperly, without privilege, and with intent to induce third parties not to enter into or continue business or contractual relations with the plaintiff. 2 Cases that cite this headnote Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 241 of 520 PageID 877 Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256 (2004) 2004-1 Trade Cases P 74,283, 69 U.S.P.Q.2d 1635, 63 Fed. R. Evid. Serv. 479... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 [12] Libel and Slander Truth as justification in general Truth is a complete defense to libel under Georgia law. 3 Cases that cite this headnote [13] Libel and Slander Common business interest Libel and Slander Good faith in exercise of privilege or right Under Georgia law, letter sent by treated wood products seller to its customers, indicating that producer of treated woods using a competitor's products was enjoined from making false statements, was privileged communication not subject to producer's libel claims; letter, which was sent after producer sent advertisement to retailers and distributors attacking safety of seller's treated wood, was sent in good faith in an attempt to support a legitimate business interest, and was properly limited in scope. 2 Cases that cite this headnote Attorneys and Law Firms *1258 David S. McCrea, Bloomington, IN, for Defendants. Andrew McFee Thompson, William W. Maycock, Smith, Gambrell & Russell, Atlanta, GA, for Plaintiff. Appeal from the United States District Court for the Northern District of Georgia. Before TJOFLAT, BIRCH and GOODWIN * , Circuit Judges. * Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting by designation. Opinion GOODWIN, Circuit Judge: A controversy over promotional language employed by competitors in the wood-preservation products industry resulted in litigation in which parties on both sides obtained a summary judgment. Both sides have appealed. Because material evidence was overlooked in the district court, one of the summary judgments must be vacated and remanded. We affirm the other summary judgment. BACKGROUND Plaintiff–Appellee Hickson Corporation (“Hickson”) 1 formulates, produces, and markets chromated copper arsenate (“CCA”) to wood treatment companies. Hickson owns the “Wolmanized®” trademark, and wood products companies that use Hickson's CCA product are licensed to sell wood as “Wolmanized®” lumber to retailers. Defendant–Appellant Northern Crossarm Company (“Northern”) purchases a different wood preservative, alkaline copper quaternary (“ACQ”), from a Hickson competitor, pressure treats wood with it, and markets the resulting product to retailers under the name “ACQ–Preserve.” Defendant Patrick Bischel is the President of Northern and is responsible for marketing ACQ–Preserve. ACQ–Preserve competes directly with Wolmanized lumber in the relevant market. These facts are not in substantial dispute. 1 Hickson is now known as Arch Wood Protection, Inc. On May 21, 2000, Bischel sent a facsimile advertisement for Northern's ACQ–Preserve to 480 retailers and distributors of CCA pressure-treated wood. Some of these 480 retailers and distributors were purchasers and sellers of Wolmanized® lumber. The advertisement (hereinafter “OUCH! advertisement”) read as follows: OUCH! During the last 5 weeks, 5 major metropolitan news programs have done news segments warning the public about the dangers of CCA treated wood. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 242 of 520 PageID 878 Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256 (2004) 2004-1 Trade Cases P 74,283, 69 U.S.P.Q.2d 1635, 63 Fed. R. Evid. Serv. 479... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 In court depositions in 1998, Hickson representatives admitted to knowing of at least a dozen instances of purported personal injuries caused by exposure to Wolmanized Pressure Treated Wood. *1259 Is it time for you to switch to a treated wood without arsenic? Call us for more information on ACQ Preserve. Hickson demanded that Northern provide Hickson with factual support for the OUCH! advertisement and that it retract the advertisement. Northern refused to do either, and Hickson filed suit on June 16, 2000. Hickson alleged five claims: (1) false and misleading representations in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B); (2) violations of the Georgia Deceptive Trade Practices Act (GDTPA), O.C.G.A. § 10–1–372(a)(5), (a)(7), (a)(8), and (a)(12); (3) libel in violation of O.C.G.A. § 51–5–1; (4) common law product disparagement and unfair competition; and (5) tortious interference with contractual and business relations. The district court entered a consent preliminary injunction on July 7, 2000, enjoining Northern from making false, misleading, and/or disparaging comments about Hickson, Wolmanized wood, or CCA-treated products or about Hickson's knowledge of injuries caused by exposure to Wolmanized products or CCA-treated wood. On July 20, 2000, Hickson sent the following letter to its customers: You may have heard that someone has been saying untrue things about Wolmanized wood. Hickson has regarded those accusations as the serious attacks that they were intended to be. As a consequence, Hickson filed a lawsuit against Northern Crossarm Co., Inc., and Patrick Bischel. The nature of the lawsuit is described in the attached preliminary injunction, which has been entered by the federal court against the Defendants. As you will see from reading pages 3 and 4 of the enclosure, Northern Crossarm and Mr. Bischel are enjoined from making false, misleading and/or disparaging statements regarding Hickson, Wolmanized goods and services, or CCA-treated wood; and from engaging in any communication that misleads or misinforms consumers or constitutes any deceptive misrepresentation. In the event that you witness or hear of any act by Northern Crossarm or Mr. Bischel that may constitute a violation of the Preliminary Injunction, please contact Bill Baldwin at the Hickson office shown on this letterhead. In response to the Hickson letter, Northern filed a counterclaim against Hickson, alleging libel and tortious interference with contractual and business relations. Both Hickson and Northern filed motions for summary judgment on the respective claims, and, as noted, the district court granted both. DISCUSSION A. Standard of Review [1] “We review a district court's grant of summary judgment de novo, applying the same legal standards applied by the district court.” Valley Drug Co. v. Geneva Pharms., 344 F.3d 1294, 1303 (11th Cir.2003) (citing Bailey v. Allgas, Inc., 284 F.3d 1237, 1242 (11th Cir.2002)). B. Summary Judgment Standard Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” [2] [3] [4] An issue of fact is “material” if, under the applicable substantive law, it might affect the outcome of the case. Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir.1997) (citing Anderson v. Liberty *1260 Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998 (11th Cir.1992)). An issue of fact is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id. A court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251, 252, 106 S.Ct. 2505. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 243 of 520 PageID 879 Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256 (2004) 2004-1 Trade Cases P 74,283, 69 U.S.P.Q.2d 1635, 63 Fed. R. Evid. Serv. 479... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 [5] [6] The moving party bears “the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmoving party bears the burden of proof at trial, the moving party may discharge this “initial responsibility” by showing that there is an absence of evidence to support the nonmoving party's case or by showing that the nonmoving party will be unable to prove its case at trial. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437– 38 (11th Cir.1991). To survive summary judgment, the nonmoving party bearing the ultimate burden of proof at trial must come forward with evidence sufficient to withstand a directed verdict motion. Fitzpatrick v. Atlanta, 2 F.3d 1112, 1116 (11th Cir.1993). On summary judgment, “the evidence of the non-movant is to be believed.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “The district court should resolve all reasonable doubts about the facts in favor of the non-movant, and draw all justifiable inferences ... in his favor.” Four Parcels, 941 F.2d at 1428 (internal quotations and citations omitted). C. Northern's Motion for Summary Judgment We consider each of Hickson's claims in turn. 1. Lanham Act claim Section 43(a) of the Lanham Act provides: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a). [7] To succeed on a false advertising claim under § 43(a)(1)(B) of the Lanham Act, a plaintiff must establish that (1) the advertisements of the opposing party were false or misleading; (2) the advertisements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on purchasing decisions; (4) the misrepresented product or service affects interstate commerce; and (5) the movant has been—or is likely to be—injured as a result of the false advertising. Johnson & Johnson Vision Care, Inc. v. 1–800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir.2002) (citing ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 964 (D.C.Cir.1990)); United Industries Corp. *1261 v. Clorox Co., 140 F.3d 1175, 1180 (8th Cir.1998). [8] The first element of the Lanham Act test requires that the plaintiff show that the statements at issue were either “(1) commercial claims that are literally false as a factual matter” or “(2) claims that may be literally true or ambiguous but which implicitly convey a false impression, are misleading in context, or likely to deceive consumers.” Clorox, 140 F.3d at 1180. We agree with the district court's analysis and conclusion that the OUCH! advertisement was not literally false and Hickson elected not to challenge this finding on appeal. Hickson argues that the OUCH! advertisement was literally true but misleading. [9] A plaintiff attempting to establish the second kind of falsehood, that an advertisement is literally true but misleading, must “present evidence of deception” in the form of consumer surveys, market research, expert testimony, or other evidence. 1–800 Contacts, 299 F.3d at 1247. Consumer survey research often is a key part of a Lanham Act claim alleging that an advertisement is misleading or deceptive. Johnson & Johnson*Merck Consumer Pharmaceuticals Co. v. Smithkline Beecham Corp., 960 F.2d 294, 298 (2d Cir.1992) (“[T]he success of a plaintiff's implied falsity claim usually turns on the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 244 of 520 PageID 880 Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256 (2004) 2004-1 Trade Cases P 74,283, 69 U.S.P.Q.2d 1635, 63 Fed. R. Evid. Serv. 479... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 persuasiveness of a consumer survey.”); Clorox, 140 F.3d at 1183. [10] Hickson's consumer evidence was before the court, but the court apparently overlooked it in granting summary judgment on Hickson's Lanham Act claims. Hickson's expert, Dr. Michael Mazis, submitted a declaration and statement with Hickson's Response To Defendant's Motion For Summary Judgment and Hickson's Response to “Defendant's Statement Of Material Facts As To Which There Is No Genuine Issue To Be Tried.” Dr. Mazis' findings were referenced several times in the Responses, although the point was not prominently highlighted in argument by counsel. The district court did not address Dr. Mazis' research in its order, which points out the importance of consumer survey research, and then states, “Plaintiff offers no reliable consumer or market research demonstrating consumer deception....” Hickson Corp. v. N. Crossarm Co., 235 F.Supp.2d 1352, 1359 (N.D.Ga.2002). Northern Crossarm's contention at oral argument that “Truth is an absolute defense” is good law when applied to Hickson's state law libel claim, but misses the point on the Lanham Act claim. The literal truth of Northern Crossarm's statement is immaterial to the necessity of reviewing and weighing the consumer survey research in considering Hickson's Lanham Act claim that the OUCH! advertisement was misleading. Because the district court inadvertently disregarded the consumer survey research in the record, we vacate its grant of summary judgment on that claim. 2. State law and common law claims The district court noted that the parties' arguments were the same for all claims and applied its analysis and conclusions in the Lanham Act claim to the state law claims. The state claims stand or fall on state law as applied to their peculiar facts. We vacate the district court's categorical rejection of Hickson's state law claims. Rulings not affected by the error of overlooking the consumer survey evidence are affirmed. [11] We affirm summary judgment on Hickson's tortious interference claim. To prevail on claims of tortious interference with contract or business relationships, a plaintiff must show that a defendant acted improperly, without privilege, and with intent to induce third parties not to enter *1262 into or continue business or contractual relations with the plaintiff. Parks v. Multimedia Techs., Inc., 239 Ga.App. 282, 291, 520 S.E.2d 517 (Ga.App.1999). There was no error in the district court's finding that Northern acted in good faith and without an intent to deceive. Hickson, 235 F.Supp.2d at 1360. [12] Truth is a complete defense to libel under Georgia law. As noted, because the district court found that the OUCH! advertisement is literally true, we affirm the summary judgment for Northern on this libel claim. Wolf v. Ramsey, 253 F.Supp.2d 1323, 1349 (N.D.Ga.2003); Watkins v. Laser/Print–Atlanta, Inc., 183 Ga.App. 172, 173, 358 S.E.2d 477 (Ga.App.1987) (“It is axiomatic that truth is an absolute defense in a defamation action, O.C.G.A. § 51–5–6....”). We remand the remaining claims for consideration under Georgia law. D. Hickson's Motion for Summary Judgment [13] Northern brought a counterclaim against Hickson alleging libel and tortious interference with contractual and business relations. The district court appropriately found that Hickson's July 20, 2000, letter was privileged because it “was sent in good faith, in an attempt to support a legitimate business interest, was properly limited in scope, and was sent to the appropriate persons on a proper occasion.” Hickson Corp. v. N. Crossarm Co., 235 F.Supp.2d 1352, 1361 (N.D.Ga.2002). Accordingly, the summary judgment for Hickson on this claim is affirmed. AFFIRMED IN PART, VACATED AND REMANDED IN PART; EACH PARTY TO PAY ITS OWN COSTS IN THIS COURT. All Citations 357 F.3d 1256, 2004-1 Trade Cases P 74,283, 69 U.S.P.Q.2d 1635, 63 Fed. R. Evid. Serv. 479, 17 Fla. L. Weekly Fed. C 195 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 245 of 520 PageID 881 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Disagreed With by Guzik v. DirecTV LLC, C.D.Cal., November 2, 2017 740 F.Supp.2d 683 United States District Court, D. Maryland. Scott JACOBSON, et al. v. COMCAST CORPORATION., et al. Case No.: 1:09–cv–562. | Sept. 28, 2010. Synopsis Background: Cable technicians brought action against cable television provider, under Fair Labor Standards Act (FLSA), seeking overtime wage payments. Provider moved for summary judgment. [Holding:] The District Court, Motz, J., held that provider was not technicians' joint employer, and thus was not liable for any FLSA violations. Motion granted. West Headnotes (18) [1] Labor and Employment Independent Contractors A company may, consistently with the remedial goals of the FLSA, contract with third parties who employ workers vital to the accomplishment of the company's business purposes in a manner providing the company with strict quality control over the performance of those workers without becoming liable for wages due the workers under the FLSA, provided that the fees paid by the company to the direct employers of the workers are sufficient to pay the workers the wages they are due. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e) (1). 1 Cases that cite this headnote [2] Labor and Employment Employers Included Labor and Employment Employees Included The FLSA definitions of employer and employee are broader than their common law counterparts. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e) (1). Cases that cite this headnote [3] Labor and Employment Joint or multiple employers Under the FLSA, an individual may be the employee of more than one employer at a given time. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1). Cases that cite this headnote [4] Labor and Employment Joint or multiple employers To determine whether an entity is a joint employer under the FLSA, a court must take into account the “real economic relationship” between the employee, employer, and putative joint employer. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e) (1); 29 C.F.R. § 791.2(b). 5 Cases that cite this headnote [5] Labor and Employment Joint or multiple employers When evaluating a putative joint employment relationship, courts must effectuate the broad scope of the FLSA, while not construing the statute so broadly as to subsume typical independent contractor relationships. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 1 Cases that cite this headnote Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 246 of 520 PageID 882 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 [6] Labor and Employment Joint or multiple employers The economic reality test to determine whether an entity is a joint employer under the FLSA is intended to expose outsourcing relationships that lack a substantial economic purpose, but it is manifestly not intended to bring normal strategically oriented contracting schemes within the ambit of the FLSA. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 2 Cases that cite this headnote [7] Labor and Employment Joint or multiple employers To determine whether an entity is a joint employer under the FLSA, there is no mechanical test to evaluate the “economic reality” between employees and putative joint employers. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 1 Cases that cite this headnote [8] Labor and Employment Joint or multiple employers The four Bonnette factors for determining whether an entity is a joint employer under the FLSA are: (1) authority to hire and fire employees; (2) authority to supervise and control work schedules or employment conditions; (3) authority to determine the rate and method of payment; and (4) maintenance of employment records. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 12 Cases that cite this headnote [9] Labor and Employment Joint or multiple employers District court would weigh both the four Bonnette factors and the three Zheng factors in determining whether cable television provider was cable technicians' joint employer for purposes of FLSA, where record could not be fairly read as establishing that provider controlled installation companies, which paid technicians, or that provider and companies were under common control, and record established only that provider and companies had contracts with one another calling for performance of work which was done by technicians, such that purported employment relationship fell outside examples provided by applicable regulation. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(a). 7 Cases that cite this headnote [10] Labor and Employment Joint or multiple employers Cable television provider was not joint employer of cable technicians, who were paid by installation companies, and thus provider was not liable for any FLSA violations, even though provider maintained standards to which technicians had to adhere and regularly monitored technicians, where provider exercised power over hiring or firing of technicians only in context of quality control, provider was not responsible for day-to- day management of technicians, installation companies, not provider, determined whether to pay technicians on per service or salary basis, and at what rate, provider retained technician service records for purpose of quality control, provider did not supply technicians with uniforms, vehicles, or other tools, and technicians only worked for provider to extent their employer was hired to do so. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 22 Cases that cite this headnote [11] Labor and Employment Joint or multiple employers Under the Bonnette test for determining whether an entity is a joint employer under the FLSA, a putative employer's supervision Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 247 of 520 PageID 883 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 and control over a putative employee is probative of an employment relationship only when the oversight demonstrates effective control over the schedule and conditions of employment; the nature of the control exercised by putative joint employer is the key element in this analysis, and does not contemplate the generic control exercised by a supervisor over an independent contractor. Fair Labor Standards Act of 1938, § 3(d), (e) (1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 22 Cases that cite this headnote [12] Labor and Employment Joint or multiple employers Under the Bonnette test for determining whether an entity is a joint employer under the FLSA, detailed instructions from a putative employer to putative employees and a strict quality control mechanism will not, on their own, indicate an employment relationship. Fair Labor Standards Act of 1938, § 3(d), (e) (1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 10 Cases that cite this headnote [13] Labor and Employment Joint or multiple employers Under the Bonnette test for determining whether an entity is a joint employer under the FLSA, a high level of supervision and control by a putative employer over putative employees is not an automatic trigger for joint employment under the FLSA; the nature of the control distinguishes employment and contractor relationships. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 4 Cases that cite this headnote [14] Labor and Employment Joint or multiple employers The first Zheng factor for determining whether an entity is a joint employer under the FLSA is whether the entity's premises or equipment are used for a putative employer's work. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). Cases that cite this headnote [15] Labor and Employment Joint or multiple employers The second Zheng factor for determining whether an entity is a joint employer under the FLSA is whether a putative employee is a part of a business organization that can shift as a unit from one putative joint employer to another. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 1 Cases that cite this headnote [16] Labor and Employment Joint or multiple employers Under the Zheng test for determining whether an entity is a joint employer under the FLSA, by itself, the absence of a single client base is not a proxy for joint employment under the FLSA because it is perfectly consistent with a legitimate subcontracting relationship. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 2 Cases that cite this headnote [17] Labor and Employment Joint or multiple employers The third Zheng factor for determining whether an entity is a joint employer under the FLSA is whether the contract responsibilities of a direct employer can be transferred to a putative joint employer without material changes. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e)(1); 29 C.F.R. § 791.2(b). 2 Cases that cite this headnote [18] Labor and Employment Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 248 of 520 PageID 884 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Joint or multiple employers Under the Zheng test for determining whether an entity is a joint employer under the FLSA, where employees work for a purported joint employer, under the FLSA, only to the extent that their direct employer is hired by that entity, this factor does not in any way support the determination that a joint employer relationship exists. Fair Labor Standards Act of 1938, § 3(d), (e)(1), 29 U.S.C.A. § 203(d), (e) (1); 29 C.F.R. § 791.2(b). 6 Cases that cite this headnote Attorneys and Law Firms *685 Ari Taragin, James L. Fuchs, Snider and Associates LLC, Joshua M. Ambush, Law Offices of Joshua M. Ambush LLC, Baltimore, MD, Andreas N. Akaras, Akaras Law Offices, College Park, MD, Gary E. Mason, Nicholas A. Migliaccio, Mason LLP, Washington, DC, for Scott Jacobson, et al. Timothy Francis McCormack, Ballard Spahr LLP, Michelle McGeogh, Ballard Spahr Andrews and Ingersoll LLP, Baltimore, MD, Daniel Vincent Johns, John B. Langel, Shannon D. Farmer, Stephen Joel Kastenberg, Ballard Spahr Andrews and Ingersoll LLP, Philadelphia, PA, Douglas Andrew Rubel, Johanson Berenson LLP, Cary, NC, for Comcast Corporation., et al. Michael J. Snider, Allan E. Feldman, Snider and Associates LLC. OPINION J. FREDERICK MOTZ, District Judge. Plaintiffs, a group of cable technicians, have brought suit seeking overtime wage payments under the Fair Labor Standard Act (“FLSA”), 29 U.S.C. § 201, et seq., against Comcast, and companies that contracted *686 with Comcast to install cable services for Comcast customers (Futuretek, Procom, and Conn–X) (collectively “Installation Companies”). There is no dispute that the Installation Companies employ Plaintiffs. Plaintiffs contend further that Comcast is their joint employer within the meaning of the FLSA. [1] Comcast has filed a motion for summary judgment. Broadly stated, the issue presented is whether a company (or other private venture) may, consistently with the remedial goals of the FLSA, contract with third parties who employ workers vital to the accomplishment of the company's business purposes in a manner providing the company with strict quality control over the performance of those workers without becoming liable for wages due the workers under the FLSA. Reasonable people may disagree about the answer to this question. My view is that the answer is “yes,” provided that the fees paid by the company to the direct employers of the workers are sufficient to pay the workers the wages they are due. Here, Plaintiffs have not alleged that the fees paid by Comcast to the Installation Companies were not sufficient to cover the FLSA wages plaintiffs claim. Therefore, I will grant Comcast's motion for summary judgment. I. 1 1 The facts, as I state them, are either undisputed or set forth in the light most favorable to the plaintiffs. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Comcast sells its services on a subscription basis, necessitating the installation of equipment in a customer's home to establish a connection with the Comcast network. (Pl.'s Mem. at 2; App. A, Comcast 10052791.) To provide these installation services, Comcast contracts with Installation Companies which, in turn, hire technicians to perform installations. (Id.) The terms of the contracts between Comcast and the Installation Companies expressly provide that the technicians are independent contractors of Comcast. (Def.'s Mem. at 7; Ex. D– 1, Conn–X Agreement at ¶ 15(a); Ex. D–2, Procom Agreement at ¶ 1(e).) The Installation Companies and Comcast have a close business relationship. Procom was founded by a former Comcast Senior Vice President with a $500,000 advance from Comcast. (Pl.'s Mem. at 41; Ex. 4, Donahue Dep. at 180.) The Installation Companies perform all, or the vast majority of their work for Comcast. (Pl.'s Mem. at 3; Ex. 1, Schreyer Decl. at ¶ 8.) All technicians are issued Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 249 of 520 PageID 885 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 identification numbers by Comcast. (Id. at 4; Ex. 2, Selvyn Dep. at Ex. 2 thereto.) Comcast refers to its Installation Companies as “business partners.” (Id. at 4; Ex. 2, Selvyn Dep. at 235–37.) All the equipment installed in customers' homes belongs to Comcast. However, the Installation Companies and the technicians own the necessary tools and equipment. Plaintiffs contend that Comcast has the authority to prohibit the hiring of a prospective technician in its “sole and absolute discretion.” (Id. at 14; Ex. 1, Schreyer Decl. at ¶ 19.) Andre Selvyn, Comcast's Manager of Business Partner Operations, sent an email in March 2009 to an Installation Company, informing them that “effectively [sic] immediately, all new hires from your firms who will be representing Comcast must be approved by me. Please be sure to contact me before bringing on any new techs.” (Id. at 14; Ex. 4, Donahue Dep. at Ex. 16 thereto.) Short of absolute authority over hiring, Comcast also requires all prospective technicians to pass a *687 criminal background check and drug screening test before working on behalf of Comcast. (Id. at 13; Ex. 1, Schreyer Decl. at ¶ 21). The Plaintiffs assert that Comcast exercises direct and indirect control over cable technicians once they are hired. Comcast requires Installation Companies to hire technicians as W2 employees, rather than 1099 independent contractors. (Id. at 5; Ex. 2, Selvyn Dep. at Ex. 2 thereto.) The contracts between Comcast and the Installation Companies specify the nature of the services they are to provide, and establish policies and procedures to which technicians must adhere. (Id. at 15; Ex. 5, Conn– X agreement.) Technicians are issued Comcast ID badges. (Id. at 15; Ex. 2, Selvyn Dep. at 168.) By forwarding batches of service calls to the Installation Companies, Comcast directs technicians to specific work sites and details the timeframe in which jobs must be completed. (Id. at 23–24; Ex. 2, Selvyn Dep. at 88.) At times, Comcast contacts technicians directly to point them to particular jobs. (Id. at 27; Ex. 17 Waters Dep. at 62; Ex. 21, J. Jacobson Dep. at 66.) Comcast also maintains strict supervision over the Installation Companies and the technicians. (Id. at 5; Ex. 1, Schreyer Decl. at ¶ 14.). Comcast utilizes a program called “Cable Data” which permits it to exercise real time monitoring of a technician's work. (Id. at 7; Ex. 2, Selvyn Dep. at 108–23.) For example, Selvyn informed Installers via email: I just ran a quick summary and below are the top 20 techs with craftsmanship issues last week. As discussed previously, the goal for this month is 14% SCOI; 2 at the end of the month, we'll take a hard look at any tech above that threshold and decide whether or not their performance warrants continued representation of Comcast. 2 SCOI is “Service Call on Install,” a metrics tool used by Comcast to measure the performance of cable technicians. (Id. at 19; Ex. 1 Schreyer Aff. at ¶ 13.) (Id. at 20; Ex. 5, Crouse Dep. at Ex. 11 thereto.) Comcast is able to monitor individual technicians to determine where they are, how long they are on site, and what equipment is being utilized. (Id. at 21; Ex. 21, J. Jacobson Dep. at 72.) Comcast retains records of technicians' arrival and departure times (Id. at 35; Ex. 4, Donahue Dep. at 190– 91). Comcast also has the authority to “deauthorize” a specific technician, which Plaintiffs contend amounts to the practical ability to fire. Deauthorization strips technicians of their status as an “authorized contractor,” thereby prohibiting them from performing any work on behalf of Comcast. (Id. at 16; Ex. 14, Sadik Dep. at 13.) While Comcast notes that a deauthorized technician is not prohibited from continuing to work for an Installation Company in a position unassociated with Comcast, Plaintiffs contend that because the Installers only perform work for Comcast, deauthorization is tantamount to termination. (Id. at 16; Ex. 1, Schreyer Decl. at ¶ 9; Ex. 3, S. Jacobson Dep. at 143.) Comcast does not pay technicians directly, but instead pays the Installation Companies for each service completed by their technicians. (Id. at 32; Ex. A.) The Installation Companies are then free to pay their technicians in whatever manner they see fit. (Id. at 32; Ex. 2, Selvyn Dep. at 235.) Plaintiffs contend that because Comcast pays per each completed service, WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 250 of 520 PageID 886 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Comcast exercises practical control over whether or not an individual technician will be paid for their work. (Id. at 34; Ex. 16, Roberts Dep. at 91 (explaining to a cable technician that if “Comcast says it's not *688 going to pay you for this ... [y]ou won't get paid for it”).) II. [2] The FLSA provides for a broad definition of employer and employee. See Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465, 1469 (9th Cir.1983) (noting that employer and employee are to be given broad interpretations in order to effectuate the FLSA's broad remedial purposes). Employer includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). An employee is defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). The definition of “employ” is equally expansive, meaning “suffer or permit to work.” 29 U.S.C. § 203(g). These definitions are broader than their common law counterparts. Zheng v. Liberty Apparel Co., 355 F.3d 61, 69 (2d Cir.2003). 3 3 The purpose of the FLSA has been said to be “humanitarian.” See Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Certainly, assuring that workers are paid wages they are lawfully due is “humanitarian,” particularly under circumstances such as those presented in Tennessee Coal. Further, few would characterize Comcast or other large for-profit corporations as intrinsically humanitarian in nature. Recognition of the laudable aim of the FLSA cannot, however, constitute the end of analysis. Counterintuitive though it may seem to some, it can be legitimately asked whether it is in the public interest to prohibit the devising and implementation of the business plan that Comcast has intentionally adopted to insulate itself from being deemed to be an employer of installation technicians. Arguably, it is preferable not to divert resources from the field, where productive hands-on work is performed and where the number of hours worked by installation technicians can be directly monitored, to the centralized office bureaucracy that would be necessary if Comcast had to track and record the hours being worked by each technician. Of course, if Congress concludes Comcast and similarly situated companies should be deemed to be the employer of technicians under the FLSA, it can enact legislation so providing. However, the question now presented is whether it has already done so, and for the reasons stated in this Opinion, I do not believe it has. [3] Under the FLSA, an individual may be the employee of more than one employer at a given time. Schultz v. Capital Int'l Sec. Inc., 466 F.3d 298, 305 (4th Cir.2006); Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465 (9th Cir.1983). According to FLSA implementing regulations, a joint employment relationship generally will be considered to exist in situations such as: 1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or 2) Where one employer is acting directly or indirectly in the interests of the other employer (or employers) in relation to the employee; or 3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. 29 C.F.R. § 791.2(b). If a joint employment relationship exists, all joint employers are jointly and individually liable for FLSA violations. See 29 C.F.R. § 791.2(a). [4] [5] [6] To determine whether an entity is a joint employer, a court must take into account the “real economic relationship” between the employee, employer, and putative joint employer. *689 Schultz v. Capital Int'l Sec. Inc., 466 F.3d 298, 306 (4th Cir.2006); Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 301, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). When evaluating a putative joint employment relationship, courts must effectuate the broad scope of the FLSA, while not construing the statute so broadly as to subsume typical independent contractor relationships. See Zheng, 355 F.3d at 76. Therefore, the economic reality test “is intended to expose outsourcing relationships that lack a substantial economic purpose, but it is manifestly not intended to bring normal strategically oriented contracting schemes within the ambit of the FLSA.” Id. [7] [8] [9] There is no mechanical test to evaluate the “economic reality” between employees and putative joint WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 251 of 520 PageID 887 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 employers. Courts have largely applied some variation of the following four factors: 1) Authority to hire and fire employees; 2) Authority to supervise and control work schedules or employment conditions; 3) Authority to determine the rate and method of payment; and 4) Maintenance of employment records. Bonnette, 704 F.2d at 1470; Brickey v. County of Smyth, Va., 944 F.Supp. 1310, 1315 (W.D.Va.1996); Jackson v. Mayor of Baltimore, 2009 WL 2060073 (D.Md.2009). Where these four factors have been inconclusive, courts have looked at various miscellaneous factors, discussed in Section IV, infra. See, e.g., Zheng, 355 F.3d at 72. 4 In considering these factors, a court need not decide that every one of them weighs against joint employment. Zheng, 355 F.3d at 77. Instead, the question of joint employment turns on the entire relationship, “viewed in its totality.” 29 C.F.R. § 825.106(b). 4 In Schultz the Fourth Circuit found it was unnecessary to apply the Bonnette and Zheng factors because the record established that relationship among the various defendants fell directly within the third example of joint employment provided in 29 C.F.R. § 791.2(a). 466 F.3d at 306, n. 2. In denying a motion to dismiss, Judge Chasanow recently has cited Schultz as a basis for not considering the Bonnette and Zheng factors. Deras v. Verizon Md., Inc., 2010 WL 3038812, 2010 U.S. Dist. LEXIS 77249 (D.Md. July 30, 2010). Here, I do not believe that record can be fairly read as establishing that Comcast controls the Installation Companies or that Comcast and the Installation Companies are “under common control.” All the record establishes is that Comcast and the Installation Companies have contracts with one another calling for the performance of work which is done by the technicians. Therefore, this is an appropriate case for me to weigh the Bonnette and Zheng factors, as the Fourth Circuit instructs I should do where an employment relationship falls outside the regulatory examples. III. A. [10] Comcast unquestionably plays a role in hiring and firing technicians. It requires that each technician pass a criminal background check and a drug test. Likewise, it reserves to itself the power to “deauthorize” technicians who install its equipment. Under the deauthorization process if Comcast receives information that a technician is performing installation work that does not meet standards set by Comcast, Comcast may advise the Installation Company that the technician no longer is authorized to perform installation work on behalf of Comcast. Because the Installation Companies have virtually no positions for a technician to fill other than performing installation work for Comcast, deauthorization in effect constitutes “firing.” It is only in the context of quality control, however, that Comcast exercises power *690 over the hiring or firing of technicians. 5 Installation Companies are free to hire anyone they choose to hire, provided that the applicants do not have a criminal record or fail a drug test. Likewise, an Installation Company has full authority to maintain the employment of the technicians, provided that a technician meets Comcast's quality performance standards, and to fire any technician that it believes should be fired, even if the technician meets Comcast's quality control standards. 5 There may be one exception to this general observation. As indicated in Section I, supra, Andre Selvyn, Comcast's Manager of Business Partner Operations, sent an email to an Installation Company stating that “all new hires from your firm who would be representing Comcast must be approved by me.” (Pl.'s Mem. at 14; Ex. 4, Donahue Dep. at Ex. 16 thereto). In a subsequent email to Selvyn, a representative from the Installation Company indicated that they “would like to know if we could have [name redacted] approved for hire ... we're waiting on your approval.” (Id. at 15; App. A, Comcast 10019108). This email exchange, however, is limited to technicians employed at a single Installation Company. If Plaintiffs wish to press this point further, they may file a motion to reconsider the Opinion as to that Installation Company. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 252 of 520 PageID 888 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 B. [11] [12] Under Bonnette, supervision and control is probative of an employment relationship only when the oversight demonstrates effective control over the schedule and conditions of employment. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (finding control over putative employees when the putative employer directed changes in working conditions “many times a day”). The nature of the control exercised by putative joint employer is the key element in this analysis. This factor does not contemplate the generic control exercised by a supervisor over an independent contractor. Chen v. Street Beat Sportswear, 364 F.Supp.2d 269, 286 (E.D.N.Y.2005) (citing Zheng, 355 F.3d at 70). Therefore, detailed instructions and a strict quality control mechanism will not, on their own, indicate an employment relationship. See, e.g., Zheng, 355 F.3d at 74–75 (citing Rutherford, 331 U.S. at 730, 67 S.Ct. 1473 (concluding that extensive supervision indicates joint employment only if it amounts to effective control of the terms and conditions of the plaintiff's employment)); Moreau v. Air France, 343 F.3d 1179, 1188 (9th Cir.2003) (concluding that specific instructions to a service provider did not amount to joint employment); Herman v. Mid–Atlantic Installation Serv., 164 F.Supp.2d 667, 672 (D.Md.2000) (concluding that Comcast's policy “requiring the Installers to meet ... installation specifications is entirely consistent with the standard role of a contractor who is hired to perform highly technical duties”). Indeed, detailed instructions and close monitoring are key components in many independent contractor and franchise relationships. 6 6 Courts evaluating franchise relationship for joint employment have routinely concluded that a franchisor's expansive control over a franchisee does not create a joint employment relationship. See Singh v. 7–Eleven, Inc., 2007 WL 715488, at *7, 2007 U.S. Dist. LEXIS 16677, at *21 (N.D.Cal.2007) (“A franchisor must be permitted to retain such control as is necessary to protect and maintain its trademark, trade name and good will, without the risk of creating an agency relationship with its franchisees.”) (internal citations omitted). Therefore, the nature and focus of the control are the critical components in evaluating an employment relationship. [13] A high level of supervision and control is not an automatic trigger for joint employment. The nature of the control distinguishes employment and contractor *691 relationships. In Moreau v. Air France, 356 F.3d 942 (9th Cir.2004), Air France was not found to be the joint employer of ground crew members, despite extensive supervision, specific performance requirements, and rigid quality control. Moreau, 356 F.3d at 951. In concluding that this type of control did not weigh in favor of a joint employment relationship, the court noted that the control was exercised to ensure passenger safety and therefore qualitatively different from the control exercised by an employer. Id. Similarly, in Zhao v. Bebe Stores, Inc., 247 F.Supp.2d 1154, 1160 (C.D.Cal.2003), the court concluded that Bebe stores did not exert the control or supervision typical of an employer even though Bebe employees constantly monitored the putative employees work for quality control purposes. The court found significant the fact that Bebe did not schedule work, control shifts, or specify individual assignments. Id. In contrast to these cases, the court in Torres–Lopez v. May, 111 F.3d 633, 637 (9th Cir.1997) concluded that a farm owner was the employer of harvesters in part because he supervised their picking routines, picking quality, and schedules, and selected the days which should be worked. Unlike Moreau and Zhao, the court concluded that this type of control amounted to the day to day management of the putative employees and therefore constituted joint employment. Cf. Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (finding control over putative employees when the putative employer directed changes in working conditions “many times a day”). While the degree of supervision and control in each case was comparable, differences in the purpose and focus of the control produced the divergent conclusions. In the instant case, Comcast maintains specific standards to which the Installation Companies and technicians must adhere, and regularly monitors the technicians to ensure that their performance satisfies Comcast's expectations. To that end, Comcast regularly monitors the location of technicians, specifies the time at which they are supposed to arrive at appointments, and regularly evaluates completed work to ensure that it meets standards. (Pl.'s Mem. at 21–27; Ex. 21, J. Jacobson Dep. at 72–73.) Comcast also occasionally contacts individual technicians to adjust their installation routines. (Pl.'s Mem. at 27; WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 253 of 520 PageID 889 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 Ex. 17, Waters Dep. at 62; Ex. 21, Jacobson Dep. at 66.) However, Comcast is not responsible for the day-to-day management of the technicians. Comcast has no role in developing the Installation Company's human resource policies and does not dictate the technicians' working conditions, or determine the conditions upon which the technicians' would receive payment. These determinations are made by the Installation Companies. (See, e.g., Pl.'s Mem. at 32; Ex. 2, Selvyn Dep. at 235); see also Moreau v. Air France, 356 F.3d 942 (9th Cir.2004) (evaluating similar facts when considering the factor of control). It is also significant that the control Comcast does exercise is in part designed to protect Comcast customers. See Moreau, 356 F.3d at 951. Technicians enter the residences of Comcast customers to perform installations. Any company concerned about its customers' safety would be careless to blindly delegate in-home installation responsibilities without verifying that jobs are satisfactorily completed. Comcast's quality control procedures ultimately stem from the nature of their business and the need to provide reliable service to their customers, not the nature of the relationship between the technicians and Comcast. While Comcast's supervision *692 and control may appear substantial in degree, it is qualitatively different from the control exercised by employers over employees. C. Plaintiffs next contend that Comcast exercises control over the Installation Companies' pay structure. However, Comcast's involvement in the pay structure of the Installation Companies is typical of any client/ independent contractor relationship. Comcast does not issue the technicians' pay checks, pay stubs, or W–2s, nor do the technicians submit pay records or timesheets to Comcast. (Def.'s Mem. at 9–10; Ex. G, Calhoun Dep. at 84–85; Ex. D, Dyer Dep. at 39–40; Ex. H, Chappell Dep. at 37.) Plaintiffs have provided no evidence indicating that Comcast tells the Installation Companies how to pay its employees. Instead, Plaintiffs claim Comcast has control over their wages simply because Comcast pays the Installation Companies on a per service basis, and the Installation Companies pay technicians on a per services basis. To find that this arrangement places Comcast in control of Plaintiffs' wages would dramatically expand the FLSA to subsume traditional independent contractor relationships. See Herman, 164 F.Supp.2d at 675 (noting that a self determined opportunity for profit or loss due to per service payments indicates contractor status). An employee's income, received from its direct employer, will always be “determine[d] and influence[d]” by what a contractor decides to pay the direct employer for services rendered by the employee. See Tafalla v. All Fla. Dialysis Serv., Inc., 2009 WL 151159, 2009 U.S. Dist. LEXIS 3802 (S.D.Fl.2009) (concluding that payments from a hospital to a contractor, which the contractor uses to pay its employees does not amount to the hospital's control over the employees' pay). The Installation Companies, not Comcast, determine whether to pay their employees on a per service or salary basis, and at what rate. Plaintiffs have produced no evidence indicating Comcast's authority over these decisions. D. Plaintiffs also contend that Comcast's record retention is indicative of Joint Employment. Comcast does maintain some records, including (1) arrival and departure data for each cable technician, (Pl.'s Mem. at 36; Ex. 5, Crouse Dep. at 23–24), (2) lists of cable technicians and their employment status, reasons underlying any terminations, and information on the vehicles they drive, (id. at 37; App. A, Comcast 00008026–00008028), and (3) drug testing and criminal background information on all cable technicians. (Id. at 38; App. A, Comcast 00000060–00000065.) While the retention of these records might on the surface seem to evidence an employment relationship, upon closer scrutiny the retention of the records is only an extension of Comcast's control procedures. “It is only good business sense for Comcast ... to attempt to insure that [technicians] are fit” to enter customer's homes. Herman, 164 F.Supp.2d at 673. No such effort could be made without the retention of the personnel and performance based records retained by Plaintiffs. The information reflected in these records is used to ensure that Comcast receives the services for which it is entitled, and that the individuals fulfilling them are authorized to do so. Plaintiffs have presented no evidence to indicate that the maintenance of this type of information is used to control a technician's day to day employment, or that Comcast retains records for any purpose beyond quality control. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 254 of 520 PageID 890 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 IV. For these reasons, I find that the four Bonnette factors do not dictate that Comcast *693 should be considered as a joint employer of Plaintiffs. There remains to be considered the three additional factors suggested in Zheng v. Liberty Apparel Co., 355 F.3d at 72. These factors, considered either individually or in the aggregate, do not establish that there is a triable issue of fact as to whether Comcast is liable to Plaintiffs under the FLSA. [14] The first factor is whether Comcast's premises or equipment are used for Plaintiff's work. Plaintiff does provide technicians with “star keys,” a specialized tool required to unlock Comcast boxes. (Pl.'s Mem. at 40; Ex. 4, Donahue Dep. at 87–90.) This key, however, is the only piece of equipment that Comcast supplies. It does not provide technicians with uniforms, vehicles, or other tools. (Def.'s Mem. at 23–26; Ex. D, Abbott Decl. at ¶ 31.) Moreover, each Installation Company has premises out of which the technicians work. [15] [16] The second Zheng factor is whether Plaintiffs are part of a business organization that can shift as a unit from one putative joint employer to another. This factor is relevant “because a subcontractor that seeks business from a variety of contractors is less likely to be part of a subterfuge arraignment than a subcontractor that serves a single client.” Zheng, 355 F.3d at 72. The record establishes that the Installation Companies work primarily, if not exclusively, for Comcast. However, by itself, the absence of a single client base is not a proxy for joint employment because it is “perfectly consistent with a legitimate subcontracting relationship.” Zheng, 355 F.3d at 72. [17] [18] Finally, Zheng asks that a court inquire whether the contract responsibilities of the direct employer can be transferred to the putative joint employer without material changes. In Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) from which Zheng is derived, the putative joint employer constantly replaced its subcontractor, and despite the changeover, the same employees would continue to do the same work from the exact same place. Rutherford, 331 U.S. at 725, 67 S.Ct. 1473. This continuity suggested that the employees were tied to the putative joint employer, rather than the subcontractor. However, where “employees work for [the purported joint employer] only to the extent that their direct employer is hired by that entity, this factor does not in any way support the determination that a joint employer relationship exists.” Zheng, 355 F.3d at 74. In the instant case Plaintiffs have introduced Comcast emails in which Comcast employees discussed the possibility of the dissolution of an Installation Company. (Pl.'s Mem. at 46; App. A, Comcast 10052909.) Plaintiffs contend that these emails reveal a situation analogous to the turnover of subcontractors in Rutherford. However, unlike the subcontractors in Rutherford, the Installation Companies are “going concern[s] with a location, facilities, equipment, employees, supervisors and owners.” Zhao, 247 F.Supp.2d at 1160 (discussing a comparable business relationship). As the emails themselves indicate, when an Installation Company dissolves, technicians wishing to continue working on behalf of Comcast are required to apply and be hired for a position from another Installation Company. Thus, the emails clearly indicate that the technicians only work for Comcast to the extent their Installation Company is hired to do so. This weighs against a joint employer relationship. Zheng, 355 F.3d at 74. In sum, although the issue is not free from doubts, I conclude that Comcast is not Plaintiff's joint employer within the *694 meaning of the FLSA. Accordingly, Comcast's motion for summary judgment will be granted. ORDER For the reasons stated in the accompanying Opinion, it is, this 28th day of September 2010 ORDERED 1. Comcast Corporation's motion for summary judgment is granted; and 2. Judgment is entered in favor of Comcast against plaintiffs. All Citations 740 F.Supp.2d 683, 16 Wage & Hour Cas.2d (BNA) 1380 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 255 of 520 PageID 891 Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (2010) 16 Wage & Hour Cas.2d (BNA) 1380 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 256 of 520 PageID 892 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Grant v. HER Imports NY, LLC, E.D.N.Y., February 16, 2018 838 F.Supp.2d 111 United States District Court, S.D. New York. Eneque JEAN–LOUIS, Angel Pinareyes, Tomas Torres–Diaz, Roselio Mendoza, Edwin Peguero, Jonnatal Peralta, and Robin Soriano, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. METROPOLITAN CABLE COMMUNICATIONS, INC., Richard Pang, John Snyder, Bill Baker, Patrick Lonergan, John Gault, and Time Warner Cable of New York City, a Division of Time Warner Entertainment Co., L.P., Defendants. No. 09 Civ. 6831(RJH). | Sept. 30, 2011. Synopsis Background: Current and former technicians who installed telecommunications services brought action against their employer, acting as installation subcontractor, and telecommunications provider, alleging failure to pay them for overtime work at “time and a half” rates required by Fair Labor Standards Act (FLSA). Holdings: Provider moved for summary judgment, asserting that it was not technicians' employer under FLSA. The District Court, Richard J. Holwell, J., held that: [1] factors weighed against finding that provider exercised formal control over technicians, and [2] factors weighed against finding that provider exercised functional control over technicians. Motion granted. West Headnotes (26) [1] Labor and Employment Employers Included Labor and Employment Joint or multiple employers Whether an entity is an employer for purposes of FLSA involves three determinations: first, there are historical findings of fact that underlie each of the relevant factors, second, there are findings as to the existence and degree of each factor, and third, there is the conclusion of law to be drawn from applying the factors, i.e., whether an entity is a joint employer. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 1 Cases that cite this headnote [2] Statutes Common or civil law Where Congress uses terms that have accumulated settled meaning under the common law, courts generally infer, unless the statute indicates otherwise, that Congress means to incorporate the established meaning of these terms. Cases that cite this headnote [3] Labor and Employment Suffering or permitting to work FLSA defines the verb “employ” expansively to mean suffer or permit to work, and thus the meaning of “employee” under FLSA covers some parties who might not qualify as such under a strict application of traditional agency law principles. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). Cases that cite this headnote [4] Labor and Employment Employers Included Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 257 of 520 PageID 893 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 “Control,” in the context of the economic reality test to determine whether an alleged employer possessed power to control the workers in question, may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, because such limitations on control do not diminish the significance of its existence. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 1 Cases that cite this headnote [5] Labor and Employment Joint or multiple employers Even when one entity exerts ultimate control over a worker, that does not preclude a finding that another entity exerts sufficient control to qualify as a joint employer under the FLSA. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 5 Cases that cite this headnote [6] Labor and Employment Joint or multiple employers Worker can have more than one employer for purposes of the FLSA. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 1 Cases that cite this headnote [7] Labor and Employment Employers Included Factors in determining whether an entity qualifies as an “employer” under FLSA's economic realities test, based on formal control over workers, include whether the entity: (1) has the power to hire and fire employees; (2) supervises and controls employee work schedules or the conditions of employment; (3) determines the rate and method of payment; and (4) maintains employment records. Fair Labor Standards Act of 1938, § 3(d, g), 29 U.S.C.A. § 203(d, g). 6 Cases that cite this headnote [8] Labor and Employment Employers Included FLSA demands that a district court look beyond an entity's formal right to control the physical performance of another's work before declaring that the entity is not an employer under the FLSA. Fair Labor Standards Act of 1938, § 3(d, g), 29 U.S.C.A. § 203(d, g). 1 Cases that cite this headnote [9] Labor and Employment Joint or multiple employers In certain circumstances, an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 5 Cases that cite this headnote [10] Labor and Employment Joint or multiple employers In determining whether an entity qualifies as a “joint employer” under FLSA, the court applies the following factors: (1) whether the entity's premises and equipment are used for the subject work, (2) whether the contractor corporations had a business that could or did shift as a unit from one putative joint employer to another, (3) extent to which the workers performed discrete work that is integral to the entity's process of production, (4) whether responsibility under the subject contracts could pass from one subcontractor to another without material changes, (5) degree to which the entity and its principals or their agents supervised the work in question, and (6) whether the alleged employees worked exclusively or predominantly for that entity. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 3 Cases that cite this headnote Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 258 of 520 PageID 894 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 [11] Labor and Employment Joint or multiple employers Hiring and firing factor weighed against finding that telecommunications provider had formal control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, where provider had no power to hire or fire technicians, and instead had only more limited power to de– authorize technicians, but this power did not prevent technicians from working for subcontractor altogether or preclude technicians from seeking employment with other subcontractors. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 4 Cases that cite this headnote [12] Labor and Employment Joint or multiple employers Work schedules and conditions factor weighed against finding that telecommunications provider had formal control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, even though provider played some indirect role beyond quality control in ongoing training of technicians, where provider merely received customer requests for service, created work orders, and forwarded those orders to subcontractor, but it was subcontractor that actually assigned technicians to these work orders, told technicians when to report for work, and supervised technicians' day–to–day work. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 4 Cases that cite this headnote [13] Labor and Employment Joint or multiple employers Supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry under FLSA, as such supervision is perfectly consistent with a typical, legitimate subcontracting arrangement. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 4 Cases that cite this headnote [14] Labor and Employment Joint or multiple employers Rate and methods of payment factor weighed against finding that telecommunications provider had formal control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, where provider was not party to agreement between subcontractor and local union, fixing hourly rates for work during standard eight–hour work days and 40–hour work weeks and providing for increased pay for overtime and Sunday work, technicians were paid by subcontractor on paychecks bearing subcontractor's logo, subcontractor issued W–2 forms to technicians, and no technician ever received any payment from provider. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). Cases that cite this headnote [15] Labor and Employment Joint or multiple employers Maintenance of employment records factor weighed against finding that telecommunications provider had formal control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, where provider did Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 259 of 520 PageID 895 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 not maintain personnel files for individual employees, time sheets, pay stubs, or government employment forms, and never maintained any records of actual hours worked by technicians. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 1 Cases that cite this headnote [16] Labor and Employment Employment relationship Shared premises do not constitute a perfect proxy for joint employment under FLSA, as such shared premises are perfectly consistent with a legitimate subcontracting relationship. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). Cases that cite this headnote [17] Labor and Employment Joint or multiple employers Premises and equipment factor weighed against finding that telecommunications provider had functional control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, where technicians visited provider's premises once per year to obtain their identification cards, while subcontractor provided technicians with tools, radios, uniforms, and, in some cases, trucks. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 1 Cases that cite this headnote [18] Labor and Employment Joint or multiple employers Absence of a broad client base does not constitute a perfect proxy for joint employment under FLSA, as such absence of a broad client base is perfectly consistent with a legitimate subcontracting relationship. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). Cases that cite this headnote [19] Labor and Employment Joint or multiple employers Factor as to whether contractor's business could shift as unit from one putative joint employer to another weighed against finding that telecommunications provider had functional control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, even though technicians performed installations only of provider's services, where subcontractor had its own resources, including warehouse, tools, vehicles, and employees, and could seek subcontracting work from other providers at any time. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 4 Cases that cite this headnote [20] Labor and Employment Joint or multiple employers Factor as to whether employees have discrete line jobs, in analysis of whether an entity qualifies as a joint employer, runs on a spectrum from piecework on a producer's premises that requires minimal training or equipment, and which constitutes an essential step in the producer's integrated manufacturing process, to, on the other end, work that is not part of an integrated production unit, that is not performed on a predictable schedule, and that requires specialized skills or expensive technology. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 2 Cases that cite this headnote [21] Labor and Employment Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 260 of 520 PageID 896 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Joint or multiple employers Factor as to whether employees had discrete line jobs, to extent it applied in non–manufacturing context, did not necessarily weigh against finding that telecommunications provider had functional control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, where similar installation subcontracts were common in telecommunications industry, but such agreements were generally not found to be mere subterfuge to avoid compliance with labor laws. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). Cases that cite this headnote [22] Labor and Employment Joint or multiple employers Whether responsibility under the contracts could pass from one subcontractor to another without material changes weighs in favor of a determination of joint employment under FLSA when employees are tied to the putative joint employer rather than to an ostensible direct employer. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 6 Cases that cite this headnote [23] Labor and Employment Joint or multiple employers Where employees work for a purported joint employer only to the extent that their direct employer is hired by that entity, factor as to whether responsibility under the contracts could pass from one subcontractor to another without material changes does not support a determination that a joint employment relationship exists. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 6 Cases that cite this headnote [24] Labor and Employment Joint or multiple employers Factor as to whether contractors were fungible weighed against finding that telecommunications provider had functional control over installation technicians sufficient to qualify as technicians' joint employer for purposes of technicians' FLSA action against provider and installation subcontractor that directly employed technicians, for failure to pay overtime wages, even though all three of provider's installation subcontractors performed same work according to same specifications, where technicians only worked for provider to extent that provider hired their direct employer as installation subcontractor. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). Cases that cite this headnote [25] Labor and Employment Joint or multiple employers Counsel's joint representation of a direct employer and a putative joint employer in a FLSA action does not imply that joint employment in fact exists. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). 9 Cases that cite this headnote [26] Labor and Employment Joint or multiple employers Manner in which installation technicians presented themselves to third parties, whether as employees of installation subcontractor or of telecommunications provider, did not change balance of factors weighing against finding that provider was technicians' joint employer for purposes of their FLSA action alleging failure to pay overtime wages, to extent such consideration even applied to issue as to whether provider had power to control technicians' work. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g). Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 261 of 520 PageID 897 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Cases that cite this headnote Attorneys and Law Firms *115 Bradley Ian Berger, Berger & Associates Attorneys, Julie Ero Gaughran, Asher & Associates, New York, NY, Fran L. Rudich, Jeffrey Alan Klafter, Seth Richard Lesser, Michael John Palitz, Klafter, Olsen & Lesser, LLP, Rye Brook, NY, Rachel Susanna Asher, Asher Gaughran, L.L.P., Armonk, NY, for Plaintiffs. Arnold Davis, Arnold Davis, Esq., Kenneth A. Margolis, Kauff McGuire & Margolis LLP, New York, NY, for Defendants. MEMORANDUM OPINION AND ORDER RICHARD J. HOLWELL, District Judge. In this action, Plaintiffs are current or former employees of defendant Metropolitan Cable Communications, Inc. (“Metro”) who work as technicians installing telecommunications services provided to New York City residents by defendant Time Warner Cable of New York City (“Time Warner”). Purporting to represent a class of fellow Metro technicians, Plaintiffs allege *116 that defendants—Metro, Metro executives, and Time Warner —did not pay them for overtime at the “time and a half” rates required by the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). Time Warner has moved for summary judgment on the ground that the FLSA only applies to an “employer” and there is no genuine issue of material fact precluding the Court from determining as a matter of law that Time Warner was not Plaintiffs' employer. For the following reasons, the Court agrees and grants Time Warner's motion. BACKGROUND Time Warner provides cable services to over one million subscribers in the New York City area. (See Pl.'s 56.1 Stat. ¶ 1.) To install cable for these subscribers, Time Warner contracts with Metro and two other companies, Uptown Communications & Electric (“Uptown”), and Broadband Express, neither of whom is a party to this action. (See Pl.'s 56.1 Stat. ¶ 2.) During the time period relevant to this action, Metro contracted only with Time Warner. (See Pl.'s 56.1 Stat. ¶ 4.) Metro, not Time Warner, hires technicians to perform installations at Time Warner customers' homes. (See Pl.'s 56.1 Stat. ¶ 2.) 1 Prospective technicians apply directly to Metro, interview with Metro personnel at Metro's facility, hear from Metro personnel that they have been hired, and receive paperwork from Metro. (See Pl.'s 56.1 Stat. ¶¶ 15–18.) None of the Plaintiffs met or communicated with anyone from Time Warner prior to being hired by Metro. (See Pl.'s 56.1 Stat. ¶ 19.) Time Warner requires Metro to conduct criminal background checks on prospective technicians, but it does not require Metro to provide the results of those checks. (Pl.'s 56.1 Stat. ¶ 158; Dec. of S. Silverman, Nov. 8, 2010 (“Silverman Dec.”) Ex. 41 at 95.) In fact, Metro is not even required to inform Time Warner when it hires a technician. Metro assigns each technician a number and approximately every six months provides Time Warner with a list of technicians and their numbers. (See Def.'s 56.1 Stat. ¶ 13; Pl.'s 56.1 Stat. ¶ 103.) 1 Time Warner also employs some technicians who are capable of performing installations. (See Pl.'s 56.1 Stat. ¶ 2.) However, the parties do not appear to contest that Time Warner contracts with Metro, Uptown, and Broadband Express to perform the overwhelming majority of installations. When Metro hires a technician, the relationship between Metro and the technician is governed by a collective bargaining agreement (“CBA”) between Metro and Local 3, International Brotherhood of Electrical Workers (“Local 3”). (See Defs.' 56.1 Stat. ¶ 35; Pl.'s 56.1 Stat. ¶ 35.) Among other things, the CBA provides for a 40 hour work week; specifies pay rates for work during that regular week; provides for “time and a half” rates for overtime and work on holidays and double rates for work on Sundays; regulates vacation periods as well as personal, sick and bereavement days; and provides for pension fund contributions. (See Pl.'s 56.1 Stat. ¶ 37.) Time Warner is not a party to the CBA and did not participate in negotiating it. (See Pl.'s 56.1 Stat. ¶ 36.) Metro equips new technicians with radios; a set of the tools that Time Warner has indicated are necessary to perform installation work; uniforms that display the Metro logo; and, in some cases, trucks with Metro logos that reside at Metro's facility. (See Pl.'s 56.1 Stat. ¶¶ WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 262 of 520 PageID 898 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 48, 50, 59, 65–68.) Metro also provides technicians with a Metro identification card. (See Pl.'s 56.1 Stat. ¶ 61.) Time Warner's agreement with Metro requires Metro technicians to report to Time Warner's facility to *117 obtain an additional identification card that contains the words “Contractor,” “Metropolitan,” and “Time Warner.” (See Pl.'s 56.1 Stat. ¶ 64.) 2 Metro technicians do not visit Time Warner's facility for any other reason. And Time Warner provides only (a) the cable boxes and other similar devices that Metro technicians connect in customers' homes and (b) so called “lock box keys” that provide access to cable connections in the field. (See Pl.'s 56.1 Stat. ¶¶ 53–57.) 2 Time Warner's agreement with the Borough of Queens to provide cable services in Queens requires that any Time Warner contractor who “routinely comes into contact with members of the public at their places of residence must wear a picture identification card indicating his or her name, the name of such subcontractor” and Time Warner. (See Pl.'s 56.1 Stat. ¶ 62.) New technicians train by shadowing Metro personnel in the field. (See Pl.'s 56.1 Stat. ¶¶ 42–44.) Technicians also attend periodic training sessions regarding new products and work specifications. (See Pl.'s 56.1 Stat. ¶¶ 42–44.) There is evidence that Time Warner personnel attended and provided documents used at some of these training sessions, in particular a session regarding customer relations. However, the parties dispute the extent to which Time Warner personnel train Metro technicians. On the other hand, there is documentary evidence that Time Warner sends Metro so-called “Tech Tips” and other communications containing installation specifications, and Plaintiffs testified that Metro distributed similar communications to Metro technicians. (See Dec. of R. Asher, Dec. 22, 2010 (“Asher Dec.”) Ex. 2 at 31; id. Exs. 44–48; Pl.'s 56.1 Stat. ¶ 126.) Metro technicians report to work at Metro's facility at times specified by Metro managers and are required to contact Metro managers if they will be late or absent. (See Pl.'s 56.1 Stat. ¶¶ 70, 71.) None of the Plaintiffs has ever contacted Time Warner for that reason. (See Pl.'s 56.1 Stat. ¶ 72.) By the time that technicians arrive at work, Time Warner has provided Metro with 700–800 work orders based on installation requests from Time Warner customers. (See Pl.'s 56.1 Stat. ¶ 73.) 3 The work orders specify time windows of several hours in which Metro must perform the services the customer has requested. (See Pl.'s 56.1 Stat. ¶ 74.) However, the work orders do not contain any instructions as to how Metro should assign technicians to implement them. (See Pl.'s 56.1 Stat. ¶ 75.) Rather, Metro managers organize the work orders into routes and distribute them to technicians as they arrive. (See Pl.'s 56.1 Stat. ¶¶ 76–78.) On some occasions, several of the Plaintiffs did not receive a route if they arrived at work late. (See Silverman Dec. Ex. 48 at 136–37.) 3 By that time, Time Warner has also provided Metro with cable boxes and other devices. (See Pl.'s 56.1 Stat. ¶¶ 54–57.) Metro technicians normally perform their work alone. However, their work does require some communication with both Metro and Time Warner. Metro technicians sometimes call Metro foremen regarding technical issues or missing equipment. (See Pl.'s 56.1 Stat. ¶¶ 80, 81.) And Metro technicians contact Time Warner if they have difficulty installing a modem; if a customer asks to make changes to the Time Warner service he or she has ordered; if a customer is not at home; or if the technician encounters difficulties accessing the premises. (See Pl.'s 56.1 Stat. ¶ 80.) In addition, Metro technicians contact Time Warner's automated ARU system to connect customers' cable service. In doing so, the technicians report the time that they began the installation job and the automated system records the connection *118 time as the time that the technician completed the job. (See Pl.'s 56.1 Stat. ¶ 154.) Both Metro and Time Warner assess the technicians' work. Metro foremen conduct some quality control inspections. (See Pl.'s 56.1 Stat. ¶ 82.) Time Warner personnel do more: they conduct some 800–900 quality control assessments per week, amounting to 2–4% of all installations that Metro technicians perform. (See Pl.'s 56.1 Stat. ¶ 86.) Time Warner memorializes in writing the results of these assessments and provides copies to Metro. (See Pl.'s 56.1 Stat. ¶ 88.) Time Warner also contracts with an outside vendor to contact customers within 45 minutes regarding installations that Metro technicians have performed at their homes. (See Pl.'s 56.1 Stat. ¶ 96.) In this system, known as ECHO, Metro and Time Warner have access to customers' responses in real time. (See Pl.'s 56.1 Stat. ¶ 97.) Finally, Time Warner compiles and provides to Metro data as to how often technicians use Time Warner's automated systems, a snapshot of the number of open and completed installations, how often Metro technicians complete installations in specified WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 263 of 520 PageID 899 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 time windows, and how often technicians must make additional visits to correct installation problems. (See Def.'s 56.1 Stat. ¶ 92; Pl.'s 56.1 Stat. ¶¶ 92, 144–154.) Time Warner and Metro discuss these assessments and reports at monthly meetings. (See Pl.'s 56.1 Stat. ¶¶ 93–94, 168–70.) Metro uses the assessments and reports in determining if, when, and how to discipline Metro technicians. (See Def.'s 56.1 Stat. ¶¶ 90, 143.) In addition, Plaintiffs have presented evidence that Time Warner contacts Metro regarding the worst performing technicians and asks Metro to advise “what actions will be taken.” (See Silverman Dec. Exs. 29–30.) However, though the parties dispute whether Metro or Time Warner was actually responsible for disciplining or firing certain technicians, the record does not contain any evidence that Time Warner has ever instructed Metro to discipline or fire any individual technician. Neither of the Plaintiffs who were terminated discussed his termination with anyone from Time Warner; rather, both were notified by Metro personnel. (See Pl.'s 56.1 Stat. ¶¶ 24–25.) It is undisputed that Time Warner has the power to remove any Metro technician from the list of technicians authorized to perform installations at Time Warner customers' homes. (See Pl.'s 56.1 Stat. ¶¶ 29–30.) Yet Time Warner's decision to de-authorize a technician does not mean that the technician can no longer work for Metro or perform installations for Time Warner. A de-authorized technician can perform other kinds of work for Metro or leave Metro to install Time Warner cable as an Uptown or Broadband Express employee. (See Pl.'s 56.1 Stat. ¶¶ 31, 34.) At the end of each week, Metro provides Time Warner with an invoice for every job that Metro technicians have completed and requests payment at per job rates established by Time Warner. (Asher Dec. Ex. 2 at 30.) Metro identifies the rate applicable to a given job based on the rate code that Time Warner has assigned to that job and which appears on the work orders. (Pl.'s 56.1 Stat. ¶ 35; Asher Dec. Ex. 3 at 45–46.) Time Warner checks the invoice against its own data regarding the number of completed installations, deducts faulty installations, and pays Metro the difference. (See Aff. of J.W. Baker Jan. 25, 2011, ¶ 2; Asher Dec. Ex. 2 at 93–94.) Pursuant to the CBA with Local 3, Metro pays its technicians at fixed rates for each hour of work. (See Silverman Dec. Ex. 44 at 54–55, 60; Ex. 46 at 22–23; Ex. 47 at 25–26; Ex. 48 at 48; Asher Dec. Ex. 18 *119 ¶ 6.) Metro also provides additional compensation based on the number of jobs that a technician completes. (See Asher Dec. Ex. 5 at 36; Ex. 9 at 87; Ex. 10 at 25–26; Ex. 18 ¶¶ 6–7.) Metro technicians received payment in the form of paychecks containing a Metro logo, and these payments were reflected on W– 2 forms issued by Metro. (See Pl.'s 56.1 Stat. ¶ 39.) No plaintiff ever received any payment from Time Warner. (See id.) On August 3, 2009, Plaintiffs filed this action against Metro and Time Warner alleging that they had violated the FLSA by failing to pay Metro technicians one and a half times their normal hourly wage for each hour they worked in excess of forty hours in certain weeks. Plaintiffs filed an amended complaint on October 23, 2009. On February 24, 2010, Plaintiffs moved to amend their complaint a second time to add a retaliation claim against Time Warner, Metro, and various Metro executives. Specifically, Plaintiffs sought leave to allege that that the defendants had retaliated against them for filing or joining this action by reassigning them to less lucrative or more demanding routes and assigning the most lucrative routes to new or less senior technicians. The Court granted Plaintiffs' motion on April 29, 2010, 2010 WL 1778794, and Plaintiffs filed a second amended complaint on May 5, 2010. The parties engaged in discovery limited to the issue of whether Time Warner jointly employed Metro technicians. On November 8, 2010, Time Warner moved for summary judgment on the ground that it does not jointly employ Metro technicians. LEGAL STANDARD Summary judgment is proper if the moving party shows that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In deciding whether there is a genuine issue of material fact as to an element essential to a party's case, the court must examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party.” Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.2002) (internal quotation marks omitted); see also Anderson v. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 264 of 520 PageID 900 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, a party opposing summary judgment “may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial.” Fed. R. Civ. Proc. 56(e). [1] Under the law in this Circuit, “the inquiry as to whether an entity is an employer for purposes of the FLSA involves three determinations. First, there are historical findings of fact that underlie each of the relevant factors. Second, there are findings as to the existence and degree of each factor. Finally, there is the conclusion of law to be drawn from applying the factors, i.e., whether an entity is a joint employer.” Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61, 76 (2d Cir.2003) (“Zheng I ”). “In order to grant summary judgment for defendants, the District Court would have to conclude that, even where both the historical facts and the relevant factors are interpreted in the light most favorable to plaintiffs, defendants are still entitled to judgment as a matter of law.” Id. “To reach that conclusion, the Court need not decide that every factor weighs against joint employment.” Id. at 76–77 (emphasis in original). 4 4 The Second Circuit's statement that “[i]n the context of a jury trial, the question whether a defendant is a plaintiff[']s joint employer is a mixed question of law and fact” does not mean that joint employer determinations are never amenable to summary judgment. Zheng v. Liberty Apparel Co., Inc., 617 F.3d 182, 185 (2d Cir.2010) (“Zheng II ”). As set forth more fully below, in Zheng v. Liberty Apparel Company, Inc., 355 F.3d 61 (2d Cir.2003) (“Zheng I ”), the Second Circuit reversed the district court's decision to grant summary judgment on the joint employment issue and remanded for consideration of additional factors relevant to that determination. On remand, the district court denied summary judgment on the ground that genuine issues of material fact existed regarding three of the factors the Second Circuit identified. See 617 F.3d at 185. The matter was then tried to a jury which found that the defendants were liable as joint employers. See id. The defendants appealed on the ground that the joint employer question was one for the court, not the jury. See id. In Zheng II, the Second Circuit rejected that argument and declined to engage in de novo review of the jury's verdict. In doing so, however, the Second Circuit specifically contrasted the procedural posture of its prior decision wherein the district court had granted summary judgment: “to the extent [the prior decision in Zheng I ] contemplated de novo review of a joint employment determination, it did so only in the context of summary judgment, not a jury trial.” Id. at 186. Hence nothing in Zheng II casts doubt on the propriety of treating joint employment as a question of law where there are no genuine issues of material fact requiring a jury trial. *120 DISCUSSION A. Relevant Law The FLSA provides that “no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). Hence only an “employer” can be liable for failing to pay “time and a half” rates for overtime. 5 The instant motion turns on whether Time Warner is Plaintiffs' “employer” for purposes of the FLSA. 5 The anti-retaliation provision of the FLSA also uses the term “employer.” Cf. 29 U.S.C. § 218c. The term “employer” in the FLSA “includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.” 29 U.S.C.A. § 203(d). “Because the statute defines employer in such broad terms,” Herman v. RSR Security Services Ltd., 172 F.3d 132, 139 (2d Cir.1999), and its definitional section uses the term it purports to define, the statute “offers little guidance on whether a given individual is or is not an employer.” Id. [2] In the usual case, a court faced with such an ambiguous statute might turn to how the law has elsewhere defined the employer-employee relationship. Indeed, “[i]n instances where Congress uses terms—such as employer and employment—‘that have accumulated settled meaning under ... the common law,’ courts generally infer, unless the statute indicates otherwise, that ‘Congress means to incorporate the established meaning of these terms,’ e.g., ‘the conventional master- WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 265 of 520 PageID 901 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 servant relationship as understood by common-law agency doctrine.’ ” Barfield v. New York City Health and Hosp. Corp., 537 F.3d 132, 141 (2d Cir.2008) (ellipsis in original) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)). *121 [3] However, the Supreme Court has observed that the “Act contains its own definitions, comprehensive enough to require its application to many persons and working relationships, which prior to this Act, were not deemed to fall within an employer-employee category.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 729, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). In particular, the FLSA “defines the verb ‘employ’ expansively to mean ‘suffer or permit to work.’ ” Darden, 503 U.S. at 326, 112 S.Ct. 1344 (quoting 29 U.S.C. § 203(g)). This “definition of ‘employ’ is broad.” Rutherford Food Corp., 331 U.S. at 728, 67 S.Ct. 1473; see also Zheng I, 355 F.3d at 66. Indeed, it is “the broadest definition” of the term “that has ever been included in any one act.” United States v. Rosenwasser, 323 U.S. 360, 363 n. 3, 65 S.Ct. 295, 89 L.Ed. 301 (1945) (quoting 81 Cong. Rec. 7657 (1937) (statement of Sen. Hugo L. Black)). And this “striking breadth ... stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” Darden, 503 U.S. at 326, 112 S.Ct. 1344. “An entity ‘suffers or permits' an individual to work if, as a matter of ‘economic reality,’ the entity functions as the individual's employer.” Zheng I, 355 F.3d at 66; see also Barfield, 537 F.3d at 141 (“[T]he determination of whether an employer-employee relationship exists for purposes of the FLSA should be grounded in ‘economic reality rather than technical concepts,’ Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961) (internal quotation marks omitted), determined by reference not to ‘isolated factors, but rather upon the circumstances of the whole activity,’ Rutherford Food Corp. v. McComb, 331 U.S. at 730, 67 S.Ct. 1473.”). Again, it is somewhat circular to define one who “employs” in terms of whether “the entity functions as the individual's employer.” However, the purpose of the “economic reality” test—“to expose outsourcing relationships that lack a substantial economic purpose”— points to a lodestar for determining when an employer has outsourced work in name only: the “overarching concern is whether the alleged employer possessed the power to control the workers in question.” Herman, 172 F.3d at 139. [4] [5] [6] Notably, control in this context is not an all or nothing concept. “Control may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control ‘do not diminish the significance of its existence.’ ” Id. (quoting Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir.1982)). And “even when one entity exerts ‘ultimate’ control over a worker, that does not preclude a finding that another entity exerts sufficient control to qualify as a joint employer under the FLSA.” Barfield, 537 F.3d at 148. Accordingly, the Second Circuit has recognized that a worker can have more than one employer for purposes of the FLSA. Indeed, “[t]he regulations promulgated under the FLSA expressly recognize that a worker may be employed by more than one entity at the same time.” Zheng I, 355 F.3d at 66; see also Barfield, 537 F.3d at 141. Cf. 29 C.F.R. § 791.2 (2003). 6 6 The relevant Department of Labor regulation, 29 C.F.R. § 791.2 (2003), provides: (b) Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. *122 [7] How do courts ascertain “economic reality?” The very open-endedness of the term denotes that it is “a flexible concept to be determined on a case-by-case basis by review of the totality of the circumstances.” Barfield, 537 F.3d at 141–42. In Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir.1984), the Second Circuit identified four factors particularly relevant to the joint WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 266 of 520 PageID 902 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 employment inquiry: “ ‘whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.’ ” Id. at 12 (quoting Bonnette v. Calif. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.1983)). The Court of Appeals has described these as factors as a test “for determining when an entity exercises sufficient formal control over a worker to be that worker's employer under the FLSA....” Barfield, 537 F.3d at 143. [8] [9] However, “the broad language of the FLSA ... demands that a district court look beyond an entity's formal right to control the physical performance of another's work before declaring that the entity is not an employer under the FLSA.” Zheng I, 355 F.3d at 69. Hence not only is “[n]o one of the four factors standing alone ... dispositive,” Herman, 172 F.3d at 139, but the Second Circuit has “expressly denied” the proposition “that the four factors borrowed from the Ninth Circuit in Carter are the exclusive touchstone of the joint employment inquiry under the FLSA.” 355 F.3d at 71. While those factors “can be sufficient to establish employer status,” “Carter did not hold ... that those factors are necessary to establish an employment relationship.” Id. (emphasis in original). Rather, “in certain circumstances, an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them.” Id. at 70. [10] In Zheng I, the Second Circuit identified six additional factors that district courts “will find illuminating” in determining whether a putative joint employer exercises functional control: (1) whether [the putative joint employer]'s premises and equipment were used for the plaintiffs' work; (2) whether the Contractor Corporations had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which plaintiffs performed a discrete line job that was integral to [the putative joint employer]'s process of production; (4) whether responsibility under the contracts could pass from one subcontractor to another without material changes; (5) the degree to which the [putative joint employer] or [its] agents supervised plaintiffs' work; and (6) whether plaintiffs worked exclusively or predominantly for [the putative joint employer]. Id. at 71–72. A district “court is also free to consider any other factors it deems relevant to its assessment of the economic realities.” Id. at 72. *123 “[B]y looking beyond a defendant's formal control over the physical performance of a plaintiff's work, the ‘economic reality’ test—which has been distilled into a nonexclusive and overlapping set of factors—gives content to the broad ‘suffer or permit’ language in the statute.” Id. at 76 (quoting 29 U.S.C. § 203(g)). “However, by limiting FLSA liability to cases in which defendants, based on the totality of the circumstances, function as employers of the plaintiffs rather than mere business partners of plaintiffs' direct employer, the test also ensures that the statute is not interpreted to subsume typical outsourcing relationships.” Id. Applying similar multifactor tests, several federal courts, including one in this Circuit, have held that telecommunications service providers such as Time Warner are not joint employers of contract technicians who install those services. See Lawrence v. Adderley Ind., Inc., No. CV–09–2309, 2011 WL 666304 (E.D.N.Y. Feb. 11, 2011); Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (D.Md.2010). Cf. Smilie v. Comcast Corp., No. 07– CV–3231 (N.D.Ill.) (Slip Op., Feb. 25, 2009) (attached as Ex. 52 to Silverman Dec.). But see Keeton v. Time Warner Cable, Inc., No. 2:09–CV–1085, 2011 WL 2618926 (S.D.Ohio, July 1, 2011) (applying different Sixth Circuit test and finding material issues of fact as to joint employment issue). Recently the Supreme Court of the State of New York, Queens County, granted summary judgment to Time Warner in a purported class action by MCC employees that raised claims virtually identical to those presently before the Court. Rodriguez v. Metro Cable Commc'ns, Inc., No. 21517/2008 (N.Y.Sup.Ct. July 26, 2011). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 267 of 520 PageID 903 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 B. Application The Court will begin its analysis by applying the four Carter factors “to examine the degree of formal control,” if any, exercised by Time Warner. Barfield, 537 F.3d at 143. If Time Warner “lacked formal control,” the Court will then apply the six Zheng factors and any other relevant factors “to assess whether” Time Warner “nevertheless exercised functional control” over Plaintiffs. Id. 1. Formal Control a. Hiring and Firing [11] The first factor relevant to formal control is “whether the alleged employer ... had the power to hire and fire the employees,” Carter, 735 F.2d at 12. In terms of hiring, the undisputed evidence shows that Time Warner does not receive applications from putative Metro technicians; interview or review applicants; inform applicants that they have been hired; or provide new hires with employment forms. It is further undisputed that none of the Plaintiffs met or communicated with any Time Warner employee prior to being hired as a Metro technician. While Time Warner requires Metro to conduct criminal background checks of applicants, Time Warner does not require Metro to report the results of the background checks and Metro does so only on occasion. (See Silverman Dec. Ex. 41 at 95.) In short, Metro, not Time Warner, has the power to hire Metro technicians. Whether Time Warner has the power to fire technicians requires more extended discussion. It is undisputed that plaintiffs Jean–Louis and Pinareyes—the only named plaintiffs who were terminated—learned about their termination from Metro employees and that no Time Warner employee ever discussed the termination with Jean–Louis or Pinareyes. (See Pl.'s 56.1 Stat. ¶¶ 25–27; Silverman Dec. Ex. 44 at 101.) Nor do Plaintiffs point to any evidence that Time Warner actually terminated any Metro technician. *124 True, Time Warner's agreement Metro provides that Time Warner has “the right to have removed from any [installation] site any employee agent, subcontractor or sub-contractor of contractor who violates” certain rules of conduct. (See Silverman Dec. Ex. 1 at III.F.) That is, Time Warner has the power to “de-authorize” any Metro technician from installing Time Warner services at customers' home while employed by Metro. But it is undisputed that a Metro technician whom Time Warner has prohibited from perform installation work while employed by Metro may continue working for Metro in some other capacity, say as a dispatcher or warehouse worker, or leave Metro and later perform installations while working as a technician for another company. (See Pl.'s 56.1 Stat. ¶¶ 31, 34, 91.) Hence Time Warner's decision to de-authorize a given Metro technician from doing installation work while employed by Metro is not the same as a decision to either (a) prevent a Metro technician from working for Metro altogether; or (b) prevent a Metro technician from working for another service company that does installation work for Time Warner. It is difficult to describe a decision by Time Warner that has neither consequence as equivalent to a decision to fire a Metro technician. Plaintiffs, however, appeal to the common sense notion that Metro has no reason to continue employing technicians who cannot perform installations or whom Time Warner—its sole source of revenue—finds problematic. Thus Plaintiffs argue that by preventing a given Metro technician from performing installation work while employed by Metro or informing Metro that a given technician has failed quality control metrics, Time Warner can effectively eliminate any reason for Metro to continue employing a given technician. In other words, like the plaintiffs in Jacobson, Plaintiffs argue that “[b]ecause the Installation Companies have virtually no positions for a technician to fill other than performing installation work for Comcast, de-authorization in effect constitutes ‘firing.’ ” Jacobson, 740 F.Supp.2d at 689. Time Warner notes that the Jacobson court rejected that argument. Indeed, the court found that the first Carter factor did not weigh in favor of joint employment because it was “only in the context of quality control ... that Comcast exercises power over the hiring or firing of technicians.” Id. at 689–90; accord Lawrence, 2011 WL 666304 at *9. But it is unclear why that makes a difference. For one thing, since poor performance seems like one of the most common reasons for firing an employee, recognizing an exception for the de facto power to fire WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 268 of 520 PageID 904 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 for poor performance would threaten to swallow the rule. For another, “[c]ontrol may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control do not diminish the significance of its existence.” Herman, 172 F.3d at 139 (quotation marks omitted). If Time Warner has the de facto power to fire Metro technicians for poor performance, whether or not Time Warner has the de facto power to fire Metro technicians for reasons unrelated to their performance would not necessarily “diminish the significance” of the power it does have. The problem for Plaintiffs is that their economic reality argument has more to do with theory than reality. The only evidence in the record regarding Time Warner's decision to remove Metro technicians from the list of persons authorized to perform installations indicates that Time Warner did so only in the case of a handful of technicians out of the hundreds Metro employed. (See Defs.' 56.1 Stat. ¶ 32.) Nor is there any evidence in the record that Time Warner ever asked, let alone demanded, *125 that Metro actually fire any technician. Plaintiffs point to several e-mails in which Time Warner personnel have inquired with Metro regarding individual technicians who performed poorly on quality control assessments. (See Asher Dec. Exs. 61–62.) Yet, as Time Warner points out, these e-mails merely show that Time Warner asked Metro what actions would be taken regarding a poorly performing technician. It is true that Time Warner's economic leverage might have led Metro to conclude that it could not afford the risk of any action short of firing a problematic technician even if Time Warner had not explicitly demanded as much. But there is no evidence in the record that Metro terminated any employee about which Time Warner specifically complained, never mind that Metro did so as a matter of course. On the contrary, e-mails show that Metro personnel told Time Warner that “more information is needed when doing an analysis to grade a technician”; that “numbers on the[ir] own stand no merit”; and that one of the technicians about whom Time Warner inquired was actually “a very good tech.” (See Asher Dec. Ex. 61; Silverman Dec. Ex. 28.) That record undermines Plaintiffs' suggestion that a complaint from Time Warner was an order to fire. Plaintiffs also point to Metro General Manager Bill Baker's testimony regarding a message to Metro technicians in which he stated that “they,” meaning Time Warner, “will not want any tech that doesn't ground,” a process designed to reduce dangerous electrocution risks, “properly in their system” and that the technicians “know what that means to [them].” (See Asher Dec. Ex. 2 at 229.) However, as the testimony itself makes clear, Baker did not testify that he would terminate any technician who was removed from Time Warner's system for failing to ground. Baker merely testified that, whether or not Time Warner had de-authorized such a technician, Metro itself would as a matter of course terminate any employee who failed to ground because Time Warner would not want such an employee to enter customers' homes. It is hardly an admission that Time Warner had the power to fire Metro technicians to say that Metro would terminate technicians who posed a safety risk to customers of its only client and proved unable to comply with standards of service that client had identified as important. In short, this case is far afield from Barfield where it was undisputed that “Bellevue had the undisputed power to hire and fire at will agency employees referred to work on hospital premises....” Barfield, 537 F.3d at 144. On the contrary, considering the record as a whole, it is clear that Time Warner had no power to hire or fire any Metro technician but instead had the more limited power to de-authorize a technician. Accordingly, the first Carter factor does not support a finding that Time Warner jointly employed Metro technicians. b. Work Schedules and Conditions The second factor relevant to formal control is whether the putative joint employer “supervised and controlled employee work schedules or conditions of employment,” Carter, 735 F.2d at 12. [12] It is undisputed that Metro technicians receive job assignments as follows. Time Warner receives requests to install Time Warner cable services. Based on those requests, Time Warner creates work orders identifying the customer who has made the order, the services required, and the time window in which the customer has requested that the services be performed. (See Pl.'s 56.1 Stat. ¶ 74.) Time Warner provides the work orders to Metro. (See Pl.'s 56.1 Stat. ¶ 73.) However, Time Warner *126 does WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 269 of 520 PageID 905 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 not provide any instructions as to how Metro should assign technicians to perform the work orders. (See Pl.'s 56.1 Stat. ¶ 75.) Rather, Metro personnel organize the work orders into routes and assign those routes to Metro technicians each morning. (See Pl.'s 56.1 Stat. ¶¶ 76–78.) It is further undisputed that Metro tells its technicians when to report in the morning; that technicians contact Metro if they are running late or will be absent; and that no Plaintiff ever contacted Time Warner about those issues. (See Pl.'s 56.1 Stat. ¶¶ 70–72.) Accordingly, the undisputed facts appear to demonstrate that Metro rather than Time Warner “supervised and controlled employee work schedules.” Plaintiffs argue that a technician's “day is fully controlled by TWCNYC's time windows” in which Time Warner expects Metro to complete installation jobs. (Pl.'s Opp'n at 10.) That argument ignores the difference between affecting and supervising or controlling. To be sure, the fact that Time Warner tells Metro to perform certain jobs at certain times affects when technicians perform those jobs; if Time Warner does not send Metro any work orders for jobs between 3 and 4 p.m., no Metro technicians will work during those hours. However, if Time Warner does send Metro work orders for jobs between 3 and 4 p.m., Metro, not Time Warner, decides which technicians will work on which job and whether a technician will work on any jobs in that period at all. In fact, plaintiff Pinareyes testified that on some days, Metro did not assign him any routes and the earlier he arrived at work, the better chance he had to get a route. (See Silverman Dec. Ex. 48 at 136–37.) That testimony makes clear that Time Warner did not determine whether or when Metro technicians worked. See Smilie, Slip. Op. at 6 (“Comcast simply gave Frontline work pursuant to the contract, work that Frontline was free to perform using whatever staffing manner it chose.”); Cf. Moreau v. Air France, 356 F.3d 942, 950 n. 5 (9th Cir.2004) (Air France did not control schedules of contract personnel servicing planes on the tarmac where Air France “schedule[d] its flight ... which necessarily indicated when the services were to be performed” but contractors “remained responsible for designating which employees would report to service the aircraft”). [13] Nor did Time Warner supervise or control Metro technicians' “conditions of employment.” In Zheng I, the Second Circuit cautioned that “the degree to which the defendants supervise the plaintiffs' work ... can be misinterpreted to encompass run-of-the-mill subcontracting relationships.” Zheng I, 355 F.3d at 74. Hence while “the law does not require an employer ‘to look over his workers' shoulders every day in order to exercise control,’ ” Barfield, 537 F.3d at 147 (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1060 (2d Cir.1988)), “supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry, as such supervision is perfectly consistent with a typical, legitimate subcontracting arrangement.” Zheng I, 355 F.3d at 75. 7 7 It is true that the Second Circuit made these statements in expounding upon the fifth functional Zheng factor rather than the second formal Carter factor. But it would be strange if quality supervision “has no bearing” on “the degree to which the [putative joint employer] or [its] agents supervised plaintiffs' work,” Zheng I, 355 F.3d at 74, but nevertheless were relevant in determining whether a defendant “supervised and controlled employee work schedules or conditions of employment,” Carter, 735 F.2d at 12. Indeed, the Second Circuit's statement in Zheng I that “extensive supervision weighs in favor of joint employment only if it demonstrates effective control of the terms and conditions of plaintiff's employment,” Zheng I, 355 F.3d at 75 (emphasis added), strongly suggests that the two inquiries are largely the same. Thus the Court will apply the second Carter factor bearing in mind the Second Circuit's admonition that “supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry....” Id. *127 That admonition undercuts Plaintiffs' argument that Time Warner's “Quality Control inspectors ... function as de facto supervisors of the Metro technicians.” (Pl.'s Opp'n at 35). Plaintiffs go to great lengths to show that sixteen full-time Time Warner personnel conduct 800–900 random quality control assessments per week on what amounts to some 4% of all jobs; that Time Warner contracts to obtain real-time feedback regarding Metro installations directly from Time Warner customers; that Time Warner uses its assessments and the ECHO results to compile extensive and detailed data regarding these assessments; and that Time Warner provides this data to Metro and discusses it with Metro in monthly meetings. (See Pl.'s 56.1 Stat. ¶¶ 86–88, 90, 92–94, 96–97; 141–154). However, all of this evidence shows that Time Warner makes efforts to ensure that WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 270 of 520 PageID 906 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 Metro is providing quality service; the evidence does not show that Time Warner controls the day-to-day manner in which technicians provide that service. Cf. Jacobson, 740 F.Supp.2d at 691 (“Comcast's quality control procedures ultimately stem from the nature of their business and the need to provide reliable service to their customers, not the nature of the relationship between the technicians and Comcast.”); accord Lawrence, 2011 WL 666304 at *9; Smilie, Slip. Op. at 7 (“Comcast's requiring Frontline (and its contract technicians) to meet Comcast's quality standards is not an indication of control and is entirely consistent with the role of a contractor who is hired to perform highly technical duties.”) (internal citation omitted). Plaintiffs make much of the fact that Metro used the quality control assessments in disciplining technicians. That is hardly surprising; indeed, it would be strange if Metro ignored reports regarding its employees' performance. However, the fact that Metro used data from Time Warner in making decisions about its employees' conditions of employment does not mean that Time Warner controlled those conditions where there is no evidence that any Time Warner directly contacted any Metro technician regarding the results of any quality control assessment or was present when any Metro technician was disciplined. Nor is there any evidence that Time Warner instructed Metro to take any particular disciplinary action or provide any particular assistance to any Metro technician on the basis of a quality control assessment. At most, the evidence shows that Time Warner provided the results of quality control assessments to Metro, discussed them on a general level in monthly meetings, and occasionally inquired about what Metro planned to do about the worst performing technicians. That evidence cannot justify an inference of joint employment. There is also evidence that Time Warner played a limited role in training Metro technicians. For example, Time Warner personnel were present at, participated in, and provided materials for some training sessions regarding customer care and new equipment. (See Pl.'s 56.1 Stat. ¶ 41; Asher Dec. Exs. 57, 59.) And Time Warner sent Metro “Tech Tips” and other training communications that Metro distributed to technicians. (See Asher Dec. Exs. 44–48; Pl.'s 56.1 Stat. ¶ 126; Silverman Dec. Ex. *128 43 at 53–54.) However, “even if [Time Warner]'s actions in specifying the work to be performed” and indirectly communicating those specifications to Metro technicians “do constitute some control over the work or working conditions of the employee,” that does not mean that “a joint employment relationship is necessarily formed....” Moreau, 356 F.3d at 951. There is no evidence that Time Warner employees participated in Metro technicians' initial training, or were present at any time other than during random quality control assessments when Metro technicians performed installations. (See Pl.'s 56.1 Stat. ¶¶ 42–44.) On the contrary, it is essentially undisputed both that trainee technicians shadowed Metro technicians rather than Time Warner personnel and that Metro foremen, not Time Warner personnel, provided assistance and retraining to poorly performing Metro technicians. (See id. ¶¶ 43, 45.) Finally, Plaintiffs point to evidence that Metro technicians communicate with Time Warner while performing their work. For example, Metro technicians may contact Time Warner if they have difficulty installing a modem; if a customer asks to make changes to the Time Warner service he or she has ordered; if a customer is not at home; or if the technician encounters difficulties accessing the premises. (Pl.'s 56.1 Stat. ¶ 80.) Yet this is not evidence that Time Warner controls how Metro technicians do their jobs; it is merely a function of the fact that Metro technicians install Time Warner cable. It would be quite unusual if a service provider never had any contact with its client, and the existence of such contact does not support an inference of supervision and control. In sum, the undisputed facts demonstrate that Time Warner did not control Metro technicians' work schedules. Plaintiffs' evidence regarding Time Warner's quality control assessments cannot establish control of work schedules or conditions of employment under the law of this Circuit. And while Time Warner did play some minimal indirect role beyond quality control in the ongoing training of Metro technicians, the second Carter factor weighs strongly in the other direction. c. Rate and Methods of Payment [14] The third factor relevant to formal control is whether the putative joint employer “determined the rate and method of payment,” Carter, 735 F.2d at 12. It is undisputed that the agreement between Metro and Local 3 provides for a regular eight hour day and a 40 hour work WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 271 of 520 PageID 907 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 16 week; fixed hourly rates of compensation for work during those regular hours; “time and a half” rates for overtime work and work on holidays; and double rates for work on Sundays. (See Pl.'s 56.1 Stat. ¶ 37; Silverman Dec. Ex. 10.) It is further undisputed that Time Warner is not a party to the agreement between Metro and Local 3 and played no part in negotiating it. (See Pl.'s 56.1 Stat. ¶ 36.) And it is also undisputed that Metro technicians were paid by Metro with paychecks containing a Metro logo; that these payments were reflected on W–2 forms issued by Metro; and that no plaintiff ever received any payment from Time Warner. (See Pl.'s 56.1 Stat. ¶ 39.) These undisputed facts would seem to weigh strongly in favor of finding that Time Warner did not determine Metro technicians' “rate and method of payment.” Cf. Jacobson, 740 F.Supp.2d at 692. Plaintiffs, however, argue that “[t]he rates technicians are paid are wholly dependent on the rates TWCNYC pays to Metro.” (Pl.'s Opp'n at 12.) The argument runs as follows. Time Warner assigns a billing code to each installation job depending on the type of work performed. Those billing codes appear on the work *129 orders for each job along with the technician number of the technician assigned to the job. Metro technicians submit these work orders to Time Warner after completing each job. Time Warner uses these work orders to assess whether Metro has accurately calculated in its weekly invoices the number of jobs that Metro technicians have completed. Time Warner reconciles these numbers and deducts jobs that Time Warner does not believe have been correctly performed. And, according to Plaintiffs, if Time Warner charges back a given job, Metro does not pay the technician for that job. Thus Time Warner's decisions purportedly affect whether a Metro technician gets paid for a given job. The problem for Plaintiffs is that there is no competent evidence that (a) Metro does not pay technicians for jobs that Time Warner charges back to Metro or (b) that Time Warner instructs Metro to do so. Baker has submitted a sworn affidavit averring that “Metro does not pass the charge-back on to a technician for an installation that is not completed according to TWCNYC's specifications.” (See Aff. of J.W. Baker Jan. 25, 2011, ¶ 3.) In opposition to Baker's statement, Plaintiffs submit only (1) a conclusory statement by a Metro technician that “Metro's pay of its techs is controlled by TWCNYC” (see Asher Dec. Ex. 16, Aff. of L. Barco, Dec. 6, 2010 ¶ 9; see also id. ¶ 5), and (2) a statement by another technician that Baker told him that Metro changed the rate that it pays Metro technicians for certain jobs when Time Warner changed the billing codes for those jobs (see Asher Dec. Ex. 60, Aff. of R. Santana, Dec. 17, 2010, ¶¶ 47–53). The first statement cannot defeat summary judgment and the latter makes a very different argument regarding how Metro provides additional per job compensation, not how Metro compensates its technicians on an hourly basis—the focus of the FLSA and this suit. It is true that the Second Circuit in Barfield recognized that a putative joint employer who pays a contractor based on the number of hours the contractor's employees work has an effect on the amount that the contractor will pay those employees per hour. And this might be a different case if Time Warner calculated the number of hours that Metro technicians worked and paid Metro for those hours, and then Metro used those calculations to pay its technicians. In those circumstances, Time Warner's “calculations” would have “conclusively determined the number of hours for which [the technicians] would be paid” and the hourly rate that Time Warner paid Metro would have “effectively set a cap on the hourly rate” that Metro would pay the technicians. Barfield, 537 F.3d at 145 (reasoning that hospital that calculated nurses' hours and paid referral agencies based on those calculations “exerted some control over [the plaintiff nurse]'s pay”). 8 8 Nevertheless, the Barfield court concluded that such a fact pattern “does not tilt decisively either way” for purposes of a Carter analysis. Barfield, 537 F.3d at 145. But Time Warner never calculates Metro technicians' hours or compensates Metro based on those calculations. On the contrary, the crux of Plaintiff's argument is that Time Warner's rates per job effectively determines how much Metro paid its technicians in addition to the hourly and overtime rates set by the agreement between Metro and Local 3. Yet what Time Warner paid Metro for a given job no more determines what Metro pays technicians per hour than customers who buy a given product determine how the companies who produce the product pay the employees who actually make it. To be sure, any company A that provides revenue to company B affects what company B pays its employees, but the test is whether a *130 putative joint employer determines pay rates, not whether it affects them. To infer joint employment from the latter “would dramatically expand the FLSA to subsume traditional WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 272 of 520 PageID 908 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 17 independent contractor relationships.” Jacobson, 740 F.Supp.2d at 692. Accordingly, the third Carter factor weighs against finding that Time Warner jointly employs Metro technicians. d. Records [15] The fourth factor relevant to formal control is whether the putative joint employer “maintained employment records.” Carter, 735 F.2d at 12. It is undisputed that Time Warner does not maintain personnel files for individual employees, time sheets, pay stubs, or government employment forms. Further, it is undisputed that, unlike the defendant in Barfield, Time Warner never “maintained employment records on the matter most relevant to overtime obligations under the FLSA: the hours worked” by individual Metro technicians. Barfield, 537 F.3d at 144 (emphasis added). Time Warner does receive from Metro lists of Metro technicians and their technician numbers—numbers which also appear on work orders that Metro technicians submit after completing installation jobs. Further, the fact that Time Warner compiles quality control data on individual technicians suggests that Time Warner is in possession of raw data regarding how many jobs —as opposed to hours—an individual technician has completed. Moreover, through its automated systems, Time Warner is aware of when a technician has started and completed a given job. Hence, in theory, Time Warner could make assumptions as to an installer's travel time and roughly calculate how many hours an individual technician has worked each day. But there is no evidence that Time Warner does so. Nor is there any evidence that Time Warner maintains records designed to track how many jobs an individual technician completes. Instead, the record shows that, at most, such data appeared on quality control records that Time Warner provided to Metro or in the aggregate on documents that Time Warner used to verify that Metro correctly calculated the amount of work that Metro technicians actually performed. (See Asher Dec. Exs. 23, 24, 29, 30, 31.) However, because Metro is not required to notify Time Warner when it fires a technician (see Pl's 56.1 Stat. ¶ 24) and can assign a substitute technician the same technician number but only occasionally updates lists identifying the name of the technician assigned to each number (see Asher Dec. Ex. 2 at 26–27), it is far from clear that Time Warner's data regarding technician codes actually corresponds to data on any individual technician. 9 9 Take the following example. Metro fires technician A with number 8706 on June 15, hires technician B on June 16, and assigns him number 8706. Time Warner does not receive an updated technician list until July 1. In that case, Time Warner could not know until that time whether technician A or technician B completed the jobs associated with number 8706. In fact, if the technician list did not indicate when technician B began using number 8706—and there is no evidence that the list indicated as much—Time Warner might never know whether the June jobs were completed by technician A or technician B. Hence this is not a case where a putative joint employer “signs off on” time sheets completed by each plaintiff, “verif[ies] the number of hours worked by each” plaintiff and “then provides records of the hours worked” to the plaintiff's contractor employer who uses the records to compensate the plaintiff on a per-hour basis. Barfield, 537 F.3d at 136. Rather, this is a case where Time Warner maintains data that might be used to determine how *131 much a plaintiff worked as a byproduct of calculating how often that plaintiff performed his work well. Jacobson is instructive in that regard. In that case, Comcast, like Time Warner here, maintained “arrival and departure data for each cable technician” and “lists of cable technicians and their employment status,” among other information. Jacobson, 740 F.Supp.2d at 692. Where there was “no evidence to indicate that maintenance of this type of information [wa]s used to control a technician's day to day employment, or that Comcast retain[ed] records for any purpose beyond quality control,” the court found that retaining such “records is only an extension of Comcast's control procedures .... to ensure that Comcast receives the services for which it is entitled, and that the individuals fulfilling them are authorized to do so.” Id.; accord Lawrence, 2011 WL 666304 at *9. That reasoning is persuasive. It would be strange if “supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry,” Zheng I, 355 F.3d at 75, but records created as part of that supervision weighed in favor of finding joint employment. Since Time Warner's records WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 273 of 520 PageID 909 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 18 correlating Metro technician numbers with particular installation jobs do not translate into Metro technicians' per hour compensation but are instead maintained largely as part of Time Warner's quality control process, those records do not weigh in favor of finding that Time Warner jointly employs the technicians. e. Conclusion In sum, the first, third, and fourth Carter factors weigh against finding that Time Warner jointly employed Metro technicians and the second Carter factor weighs almost entirely in the same direction. While there is evidence that Time Warner conducted minimal supervision beyond quality control and that Metro technicians communicated with Time Warner in certain circumstances, this evidence alone cannot sustain the conclusion that Time Warner “possessed the power to control the workers in question” where the other Carter factors negate that conclusion. Herman, 172 F.3d at 139. Rather, the undisputed facts demonstrate that Time Warner did not exercise “formal control” over Metro technicians. Barfield, 537 F.3d at 143. 2. Functional Control That is not the end of the matter, however, because “in certain circumstances, an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them.” Zheng I, 355 F.3d at 70. The Court must therefore apply the six factors the Second Circuit identified in Zheng as well as any other factors that appear relevant to determine whether Time Warner exercised functional control over Metro technicians as a matter of “economic reality.” a. Premises and Equipment [16] The first Zheng factor is “whether [the putative joint employer]'s premises and equipment were used for the plaintiffs' work,” id. at 72. This factor “is relevant because the shared use of premises and equipment may support the inference that a putative joint employer has functional control over the plaintiffs' work.” Id. Nevertheless, the Second Circuit has cautioned that “shared premises” are not “anything close to a perfect proxy for joint employment (because they are ... perfectly consistent with a legitimate subcontracting relationship)....” Id. [17] The record shows that Metro technicians visit Time Warner's premises only once per year to pick up their identification *132 cards at Time Warner's facility. (See Pl.'s 56.1 Stat. ¶ 64.) And it is undisputed that Metro, not Time Warner, provides Metro technicians with tools, radios, uniforms, and, in some cases, trucks. (See id. ¶¶ 48– 52, 59–60, 65–69.) Plaintiffs make several efforts to overcome this strong evidence that Metro technicians do not use Timer Warner's premises and equipment. First, Plaintiffs argue that Metro technicians work in Time Warner's customers' homes. (See Pl.'s Opp'n at 30.) That argument makes no sense because a home belongs to the customer, not Time Warner. Second, Plaintiffs argue that Metro technicians install equipment that belongs to Time Warner. (See id.) That argument proves too much. Metro technicians who connect cables to Time Warner cable boxes no more “use” those boxes than garment workers use pieces of fabric. The cable boxes and fabric are not tools used to complete the service or finish the product; they are uncompleted versions of the service or product. Yet if finishing a product weighed in favor of finding that the producer of the product jointly employs the person finishing it, then any company that outsourced any phase of production would jointly employ anyone who did any work on the product. That result cannot follow from applying a test that “ensures that the statute is not interpreted to subsume typical outsourcing relationships.” Zheng I, 355 F.3d at 76. Finally, Plaintiffs point to evidence that Time Warner provides Metro technicians with “lock box keys.” (See Def.'s 56.1 Stat. ¶ 53.) However, the fact that Time Warner provides that lone piece of equipment is overwhelmingly outweighed by what Time Warner does not provide and the fact that Metro technicians visit Time Warner facilities only once per year. Accordingly, the first Zheng factor weighs against finding that Time Warner jointly employs Metro technicians. b. Whether the Contractor Shifts as a Unit WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 274 of 520 PageID 910 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 19 [18] The second Zheng factor is “whether the Contractor Corporations had a business that could or did shift as a unit from one putative joint employer to another,” Zheng I, 355 F.3d at 72. This factor “is relevant because a subcontractor that seeks business from a variety of contractors is less likely to be part of a subterfuge arrangement than a subcontractor that serves a single client.” Id. Nevertheless, the Second Circuit has cautioned that “the absence of a broad client base,” like “shared premises,” is not “anything close to a perfect proxy for joint employment (because they are both perfectly consistent with a legitimate subcontracting relationship)....” Id. [19] It is undisputed that, during the period at issue in this case, Metro technicians performed work only for Time Warner. Hence the second factor might appear to weigh in favor of finding that Time Warner jointly employed Metro technicians. However, the Second Circuit has described the second factor as “whether the Contractor Corporations had a business that could or did shift as a unit from one putative joint employer to another,” Zheng I, 355 F.3d at 72 (emphasis added). And the undisputed evidence shows that, as Time Warner argues, “Metro has its own resources (a warehouse, tools, vehicles, and a cadre of employees) and can seek work from any other cable company at any time.” (Defs.' Br. at 45.) Moreover, Metro in the past provided installation services for another cable company in New York, Cablevision, as well as Dish Network in Florida. *133 Plaintiffs do not contest this point as a factual matter. Rather, they argue that the Second Circuit in Barfield held that a defendant cannot lay claim to the second factor by showing only that a contractor could shift its business to another putative joint employer. Barfield involved an action by a nurse who worked for Bellevue Hospital through a referral service. Bellevue argued that the second Zheng factor could not be decided against it as a matter of law because it “did not concede that it was hospital policy to require the referral agencies to assign the same workers for extended periods of time.” Barfield, 537 F.3d at 147. The Second Circuit held that the defendants' argument “fails because they point to no record evidence indicating that agency health care workers comprised units that shifted from hospital to hospital” and could not “refute that Barfield herself was referred only to Bellevue and not to any other hospital.” Id. In that situation, “the second Zheng factor [i]s established in favor of plaintiff as a matter of law.” Id. at 147–48. The Court is not persuaded that the Barfield court intended its statement that “Barfield herself was referred only to Bellevue and not to any other hospital” to mean that a putative defendant employer must show that the plaintiff actually shifted from one employer to another. It would not have made sense for the Second Circuit to interpret the second factor that way when the Zheng court had listed “whether plaintiffs worked exclusively or predominantly for [the putative joint employer]” as a separate factor. Zheng I, 355 F.3d at 72. Indeed, the Second Circuit's decision in Zheng I specifically noted that while the second factor “overlaps substantially” with the sixth factor, “[t]he factors are not identical ... and capture different aspects of a business relationship's ‘economic reality.’ ” Id. at 75 n. 12. In particular, the court noted that “factor (6), but not factor (2), would weigh in favor of joint employment if a subcontractor worked solely for a single client but had the ability to seek out other clients at any time.” Id. (emphasis added). The parties agree that is the case here. Accordingly, the second Zheng factor does not weigh in favor of finding that Time Warner jointly employed Metro technicians. 10 10 Indeed, this case is different from Barfield. There, “[a]fter making arrangements with a referral agency for temporary certified nursing assistants, Bellevue generally contact[ed] the referred individuals directly to advise as to the shifts that [would] likely need coverage” and “require[d] temporary nursing assistants to call the hospital two hours before the start of the identified shifts to determine whether their services [were], in fact, required.” Barfield, 537 F.3d at 136. Thus Bellevue transacted with individual plaintiff nurses rather than with the referral agency, and that structure enabled Bellevue to exercise control when it obtained plaintiff's services. In other words, the fact that the plaintiff did not work for other hospitals was the result of Bellevue's actions towards her. Here, however, Time Warner transacts with Metro technicians as a unit: it contracts with Metro, sends Metro work orders, and lets Metro assign individual technicians to complete those work orders. In those circumstances, where Time Warner does nothing to prevent Metro from contracting to assign technicians to other cable companies, the fact that the Plaintiffs do not work for other companies is not WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 275 of 520 PageID 911 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 20 the result of Time Warner's actions towards them. Accordingly, that fact adds nothing to any inference of control. c. Whether Plaintiffs Have Discrete Line Jobs [20] The third Zheng factor is “the extent to which plaintiffs performed a discrete line-job that was integral to [the putative joint employer]'s process of production,” Zheng I, 355 F.3d at 72. “Interpreted broadly, this factor could be said to be implicated in every subcontracting relationship, because all subcontractors perform a function that a general contractor *134 deems ‘integral’ to a product or service.” Id. at 73 (emphasis in original). However, the Second Circuit has “not interpret[ed] the factor quite so broadly.” Id. Rather, the Court of Appeals has recognized a spectrum spanning from, on one end, “piecework on a producer's premises that requires minimal training or equipment, and which constitutes an essential step in the producer's integrated manufacturing process,” and, on the other end, “work that is not part of an integrated production unit, that is not performed on a predictable schedule, and that requires specialized skills or expensive technology.” Id. [21] As these statements suggest, and as Plaintiffs concede (see Pl.'s Opp'n at 33), the third factor might apply with somewhat less vigor where, as here, the parties are engaged in providing a service rather than manufacturing a product. Nevertheless, there is little reason not to remain “mindful of the substantial and valuable place that outsourcing, along with the subcontracting relationships that come with outsourcing, have come to occupy in the American economy.” Id. at 73. Nor does there appear any reason why, to the extent that the third Zheng factor does apply, “both industry custom and historical practice should be consulted” since “insofar as the practice of using subcontractors to complete a particular task is widespread, it is unlikely to be a mere subterfuge to avoid complying with labor laws.” Id. That is so here. Several reported cases cited by the parties demonstrate that numerous cable companies across the country contract with installation companies in much the same way that Time Warner contracts with Metro. See Keeton, 2011 WL 2618926; Lawrence, 2011 WL 666304; Jacobson, 740 F.Supp.2d 683; Smilie v. Comcast Corp., No. 07–CV–3231 (N.D.Ill.) (Slip Op., Feb. 25, 2009); Santelices v. Cable Wiring and South Fla. Cable Contractors, Inc., 147 F.Supp.2d 1313 (S.D.Fla.2001); Herman v. Mid–Atl. Installation Servs., Inc., 164 F.Supp.2d 667 (D.Md.2000). Plaintiffs cite Zheng for the proposition that “the very prevalence of a custom may ‘be attributable to widespread evasion of labor laws.’ ” Zheng I, 355 F.3d at 73–74. True enough, but that possibility does not correspond with the reality that the mine run of other courts has not found that cable companies jointly employ installation technicians who work for contractors. That suggests that Time Warner's agreement with Metro “is unlikely to be a mere subterfuge to avoid complying with labor laws.” Id. at 73. Thus the most Plaintiffs can say is that the third factor does not necessarily weigh against joint employment. 11 11 Nevertheless, “Zheng contemplates arrangements under which the totality of circumstances demonstrate that workers formally employed by one entity operatively function as the joint employees of another entity, even if the arrangements were not purposely structured to avoid FLSA obligations.” Barfield, 537 F.3d at 146. d. Whether the Contractors are Fungible [22] [23] The fourth Zheng factor is “whether responsibility under the contracts could pass from one subcontractor to another without material changes,” Zheng I, 355 F.3d at 72. “[T]his factor weighs in favor of a determination of joint employment when employees are tied to an entity ... rather than to an ostensible direct employer....” Id. Conversely, where “employees work for an entity (the purported joint employer) only to the extent that their direct employer is hired by that entity, this factor does not in any way support the determination that a joint employment relationship exists.” Id. *135 [24] Plaintiffs argue that “all three of [Time Warner's] contractors do the same work and must follow the same specifications dictated by TWCNYC.” (Pl.'s Opp'n at 34.) However, as Time Warner points out, the Second Circuit has stated that if the fourth factor “weigh[ed] in favor of joint employment when a general contractor uses numerous subcontractors who compete for work and have different employees,” the fourth factor “would classify nearly all subcontracting relationships as joint employment relationships—a result that finds no WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 276 of 520 PageID 912 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 21 support either in the law or in our country's practices.” Zheng I, 355 at 74 n. 11 (emphasis in original). Thus the fourth factor asks not whether all of the putative joint employer's contractors do the same work but whether, if the putative joint employer hired one contractor rather than another, “the same employees would continue to do the same work in the same place.” Id. at 74 (emphasis in original). There is no evidence that Metro technicians would continue installing Time Warner cable if Time Warner severed its relationship with Metro. Since the undisputed evidence shows that, rather than hiring technicians, Time Warner hires contractors who hire technicians, all the evidence suggests that “when an Installation Company dissolves, technicians wishing to continue working on behalf of [Time Warner] are required to apply and be hired for a position from another Installation Company.” Jacobson, 740 F.Supp.2d at 693. Accordingly, the evidence suggests that Metro technicians work for Time Warner “only to the extent that their direct employer is hired by that entity,” Zheng I, 355 F.3d at 72. The fourth Zheng factor therefore weighs against finding that Time Warner jointly employs Metro technicians. e. Supervision The fifth Zheng factor is “the degree to which the [putative joint employer] or [its] agents supervised plaintiffs' work,” Zheng I, 355 F.3d at 72. As set forth above with respect to the second Carter factor, to the extent that Time Warner supervised Metro technicians, it did so almost entirely “with respect to contractual warranties of quality and time of delivery” that have “no bearing on the joint employment inquiry.” Zheng I, 355 F.3d at 75. True, there is evidence that Time Warner supervised Metro technicians in some minimal capacity. But on balance, even considering all of the evidence in the light most favorable to Plaintiffs, the fifth Zheng factor weighs almost entirely against finding that Time Warner jointly employed Metro technicians. f. Whether the Contractor Works Exclusively or Predominately for One Company The sixth Zheng factor is “whether plaintiffs worked exclusively or predominantly for [the putative joint employer].” Zheng I, 355 F.3d at 72. The parties do not dispute that, during the time period at issue in this case, Metro technicians performed installations only for Time Warner. Accordingly, this factor weighs in favor of finding that Time Warner jointly employed Metro technicians. g. Other Relevant Factors A district “court is also free to consider any other factors it deems relevant to its assessment of the economic realities.” Zheng I, 355 F.3d at 72. The parties argue that several other factors are relevant. [25] First, Plaintiffs point to the fact that Time Warner and Metro have the same counsel in this action. They contend that this “raises issues as to what extent Metro is [a] viable, autonomous entity with meaningful independence from its co-defendant.” (Pl.'s Opp'n at 40.) Hardly. *136 Plaintiffs cite no authority for the proposition that joint representation implies joint employment and the Court is aware of none. [26] Second, both parties make arguments regarding how Metro technicians present themselves to third parties. Plaintiffs point to evidence that the technicians' identification cards name Time Warner as well as Metro and that the technicians refer to Time Warner in introducing themselves. (Pl.'s Opp'n at 41.) For its part, Time Warner points to evidence that several of the Plaintiffs have represented to various legal authorities that Metro is their employer. (Def.'s Br. at 25.) The Court doubts that evidence of whether a third party has reason to believe that Time Warner jointly employs Metro technicians is relevant to determining whether that is true as a matter of economic reality. The economic reality test reflects an “overarching concern” for “whether the alleged employer possessed the power to control the workers in question.” Herman, 172 F.3d at 139. What a third party has seen or been told has almost nothing to do with whether Time Warner in fact had such a power. In any event, even if this factor were relevant, none of the evidence that the parties have advanced with respect to it changes the balance that weights overwhelmingly against finding that Time Warner jointly employed Metro technicians. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 277 of 520 PageID 913 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 22 3. Conclusion It is true that joint employment is a mixed question of law and fact and that “[m]ixed questions of law and fact are ‘especially well-suited for jury determination....’ ” Zheng v. Liberty Apparel Co., Inc., 617 F.3d 182, 185 (2d Cir.2010) (“Zheng II ”) (quoting Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir.1999)). However, this is one case where the Court can “conclude that, even where both the historical facts and the relevant factors are interpreted in the light most favorable to plaintiffs, defendants are still entitled to judgment as a matter of law.” Zheng I, 355 F.3d at 76. “To reach that conclusion, the Court need not decide that every factor weighs against joint employment.” Id. at 76– 77 (emphasis in original). Nevertheless, the undisputed facts show that almost every factor weighs against finding that Time Warner jointly employed Metro technicians. The only factor weighing in favor of that finding is that Metro technicians only install cable for Time Warner. Hence the question is whether that fact alone can as a matter of law sustain the conclusion that Time Warner jointly employed Metro technicians. The Court finds three reasons why the answer to that question is “no.” First, the Second Circuit has rejected the proposition that “the absence of a broad client base is anything close to a perfect proxy for joint employment” because it is “perfectly consistent with a legitimate subcontracting relationship.” Zheng I, 355 F.3d at 72. Rather, the Court have appeals has suggested merely that the fact that a contractor performs work for only one business can serve “as a starting point in uncovering the economic realities of a business relationship.” Id. Second, it seems strange to conclude that Time Warner controls Metro technicians because Metro contracts only with Time Warner where it is undisputed that Time Warner does not control whether Metro does so. If Time Warner prohibited Metro from contracting to provide installation services for any other cable provider, that fact along with some evidence that Time Warner supervised or otherwise controlled technicians' conditions of employment would suggest to a greater degree that Metro was separate in name *137 only. But where there is no evidence that Metro's contracting with Time Warner alone is the product of anything other than its own business decision, finding that Time Warner controlled Metro for that reason alone turns the economic reality test on its head. Third, consistent with this reasoning, several courts have concluded that cable companies do not jointly employ contract technicians where the only factor weighing in favor of a contrary result was the fact that the technicians install cable for only one service provider. See Adderley, 2011 WL 666304 at *10 (granting summary judgment where “[t]he only relevant factor weighing in favor of a joint employment relationship is the fact that Adderley ... works exclusively for Cablevision, albeit by its own choice”); Jacobson, 740 F.Supp.2d at 693 (citing Zheng I and holding that, “by itself, the absence of a single client base is not a proxy for joint employment”). In post-briefing letters, Plaintiffs point to Keeton v. Time Warner Cable, Inc., No. 2:09–CV–1085, 2011 WL 2618926 (S.D.Ohio, July 1, 2011), in which the court denied Time Warner summary judgment on the issue of whether it jointly employed cable technicians employed by contractors. Keeton, however, is readily distinguishable from this case. Noting that “Time Warner does not directly address the factors laid out in International Longshoremen['s Association, AFL–CIO, Local Union No. 1937 v. Norfolk Southern Co., 927 F.2d 900 (6th Cir.1991) ],” the Keeton court held that Time Warner “had not met [its] burden of establishing that no genuine issue of material fact[ ] exists as to whether [it] jointly employed the Plaintiffs with [their contractor], Reno Services.” 2011 WL 2618926, at *7. The International Longshoremen factors include “(1) the interrelation of operations between the companies; (2) common management; and (3) centralized control of labor relations, and common ownership,” 927 F.2d at 902— factors not identified by the Second Circuit in Zheng. Compare Zheng I, 355 F.3d at 72 (not listing such factors). Applying these factors, the Keeton court concluded that “[a] reasonable fact-finder could take the Plaintiffs' claims as true regarding Time Warner's management of Plaintiffs' daily routes to indicate that the Plaintiffs were both working under a centralized control of labor relations and [that] Reno Services and Time Warner had interrelated operations, fulfilling two of the three Int'l Longshoremen factors.” Id. at *7. Indeed, the Plaintiffs alleged that they “beg[an] their days by reporting to a Time Warner facility to receive their work orders”; “that once they reported to WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 278 of 520 PageID 914 Jean-Louis v. Metropolitan Cable Communications, Inc., 838 F.Supp.2d 111 (2011) 18 Wage & Hour Cas.2d (BNA) 314 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 23 a Time Warner facility at the beginning of the day, a Time Warner technician would print, organize, and distribute the work orders among the various installers”; “that they then filled out route sheets to give to a Time Warner dispatcher before departing to start their routes”; that they “had to receive permission from the Time Warner dispatcher before they could change the order in which they filled the work orders assigned to them on a particular day”; and “that if they had doctor's appointments, they would inform Time Warner so that the dispatcher could schedule their route around the appointment.” Id. at *6. As set forth above, the undisputed evidence here shows just the opposite: Metro technicians report to work at Metro's facility, receive work orders organized by Metro, and report their absences or late arrivals to Metro. No reasonable fact-finder could infer “interrelation of operations” between Metro and Time Warner or “centralized control of labor relations” from that evidence. Id. at *7. Hence even taking *138 into account the factors with respect to which the Keeton court found that the plaintiffs' evidence created a material issue of fact, those factors create no such issue here. CONCLUSION For the foregoing reasons, Time Warner's motion [121] for summary judgment is GRANTED. SO ORDERED. All Citations 838 F.Supp.2d 111, 18 Wage & Hour Cas.2d (BNA) 314 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 279 of 520 PageID 915 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Kidd v. DirecTV, LLC, C.D.Cal., November 2, 2017 4 F.Supp.3d 423 United States District Court, N.D. New York. Brett JOHNSON, on behalf of himself and all others similarly situated, Plaintiff, v. WAVE COMM GR LLC; Robert Guillerault, individually; and Richard Ruzzo, individually, Defendants. No. 6:10–CV–346. | Signed March 14, 2014. Synopsis Background: Employee brought collective and class action against employer and its two owners for violations of Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), alleging defendants failed to properly compensate cable installation technicians for overtime work. Defendants denied any violations of FLSA and NYLL and counterclaimed for unjust enrichment. Parties cross-moved for summary judgment. Holdings: The District Court, David N. Hurd, J., held that: [1] claims of FLSA opt-in plaintiffs were limited by date they elected to join suit, subject to jury determination of willfulness; [2] defendants established their entitlement to FLSA “retail or service establishment” exemption for weeks in which they could establish that members of first subclass were compensated at rate of one and one-half times the minimum wage; [3] formula for company's weighted halftime compensation plan did not violate FLSA or NYLL; [4] fact issues existed as to whether members of second subclass were entitled to wages for unreported hours worked during meal times and at home filling out billing sheets following installations; [5] business owners acted as “employers” and were subject to individual liability for alleged overtime violations; and [6] employees were not unjustly enriched insofar as they had retained tools provided by employer and had their payments for those tools returned by New York Department of Labor (NYDOL). Motions granted in part and denied in part. See, also, 4 F.Supp.3d 453, 2014 WL 988512. West Headnotes (28) [1] Limitation of Actions Liabilities Created by Statute Claim for unpaid overtime under the FLSA accrues at the end of each pay period when it is not paid. Fair Labor Standards Act of 1938, § 7(a)(1), 29 U.S.C.A. § 207(a)(1); Portal-to- Portal Act of 1947, § 6(a), 29 U.S.C.A. § 255(a). Cases that cite this headnote [2] Labor and Employment Time to Sue and Limitations Labor and Employment Notice and opting-in Limitation of Actions Liabilities Created by Statute Claims of opt-in plaintiffs in FLSA collective action were limited by date they filed consent to join lawsuit, subject to determination of willfulness by jury; each opt-in plaintiff was required to file his consent to join lawsuit within two years of last pay period for which he claimed that he failed to receive wages as required by FLSA, or within three years of that pay period if he could prove that employer willfully violated FLSA. Fair Labor Standards Act of 1938, § 16(b), 29 U.S.C.A. § Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 280 of 520 PageID 916 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 216(b); Portal-to-Portal Act of 1947, §§ 6(a), 7, 29 U.S.C.A. §§ 255(a), 256. Cases that cite this headnote [3] Labor and Employment Questions of Law or Fact Question of willfulness of FLSA violation, which affects length of limitations period, is generally left to the trier of fact. Portal-to- Portal Act of 1947, § 6(a), 29 U.S.C.A. § 255(a). 1 Cases that cite this headnote [4] Labor and Employment Strict or liberal construction of exemptions Because the FLSA is a remedial law, exemptions to the overtime pay requirement are narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 1 Cases that cite this headnote [5] Labor and Employment Overtime pay in general Labor and Employment Rules and regulations While New York Labor Law (NYLL) does not itself require payment of overtime, it empowers Commissioner of Labor to appoint a wage board with authority to, inter alia, recommend regulations governing overtime or part-time rate. N.Y.McKinney's Labor Law § 655(5)(b); 12 NYCRR 142–2.2. 1 Cases that cite this headnote [6] Labor and Employment Retail or service establishments In determining whether employer is a “retail or service establishment” under the FLSA, courts continue to apply definition contained in repealed FLSA section, i.e., an establishment 75 per centum of whose annual dollar volume of sales of goods or services or both is not for resale and is recognized as retail sales or services in the particular industry. Fair Labor Standards Act of 1938, §§ 7(i), 13(a)(2), 29 U.S.C.A. §§ 207(i), 213(a)(2). 4 Cases that cite this headnote [7] Labor and Employment Retail or service establishments Cable installer established that at least 75% of its annual volume of sales was services “not for resale” within meaning of FLSA overtime exemption for “retail or service establishment” employees; customers to whom installer provided services were at the very end of the stream of distribution and were thus provided to end customer, even if it was cable television provider's customer, and it was inconsequential that installer was compensated by cable provider for its services rather than by end customer. Fair Labor Standards Act of 1938, §§ 7(i), 13(a)(2), 29 U.S.C.A. §§ 207(i), 213(a)(2); 29 C.F.R. § 779.331. 2 Cases that cite this headnote [8] Labor and Employment Retail or service establishments Question of whether defendant's business is “recognized as retail” for purposes of FLSA overtime exemption for “retail or service establishment” employees is determined by court, not by defendant business or its industry, and to aid in this determination, courts have fashioned two-prong test based on Department of Labor (DOL) regulations: (1) establishment must be part of an industry in which there is a retail concept and (2) establishment's services must be recognized as retail in that particular industry. Fair Labor Standards Act of 1938, §§ 7(i), 13(a)(2), 29 U.S.C.A. §§ 207(i), 213(a)(2); 29 C.F.R. §§ 779.316, 779.322. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 281 of 520 PageID 917 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 5 Cases that cite this headnote [9] Labor and Employment Retail or service establishments Cable installer operated in industry with a “retail concept,” for purposes of FLSA overtime exemption for “retail or service establishment” employees. Fair Labor Standards Act of 1938, §§ 7(i), 13(a)(2), 29 U.S.C.A. §§ 207(i), 213(a)(2); 29 C.F.R. §§ 779.316, 779.317, 779.318(a), 779.320, 779.328. 1 Cases that cite this headnote [10] Labor and Employment Retail or service establishments Party's status as subcontractor does not alter retail nature of its business, for purposes of FLSA overtime exemption for retail or service establishment employees. Fair Labor Standards Act of 1938, §§ 7(i), 13(a)(2), 29 U.S.C.A. §§ 207(i), 213(a)(2). Cases that cite this headnote [11] Labor and Employment Retail or service establishments Cable installer's services were “recognized as retail” within its industry, within meaning of FLSA overtime exemption for “retail or service establishment” employees. Fair Labor Standards Act of 1938, §§ 7(i), 13(a)(2), 29 U.S.C.A. §§ 207(i), 213(a)(2); 29 C.F.R. §§ 779.318(a), 779.324. Cases that cite this headnote [12] Labor and Employment Retail or service establishments Each member of first subclass in FLSA overtime action by cable installation technicians received at least 50% percent of his income in the form of “commissions,” for purposes of determining applicability of retail or service establishment exemption; every member of that subclass earned at least 50% of his income under plan where compensation was based on tech rates, and payments under plan constituted commissions rather than payments on piece rate basis. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). 1 Cases that cite this headnote [13] Labor and Employment Retail or service establishments While neither FLSA nor Department of Labor (DOL) regulations provide definition for term “commission” as it is used in FLSA retail and service establishment exemption, essence of commission is that it bases compensation on sales, e.g., percentage of sales price, as when real estate broker receives as his compensation a percentage of price at which property he brokers is sold. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). 1 Cases that cite this headnote [14] Labor and Employment Retail or service establishments When concluding commission-based scheme exists for purposes of FLSA retail or service establishment exemption, courts generally find three components present: (1) employee's compensation must be tied to customer demand or the quantity of sales, (2) compensation plan must provide performance-based incentives for the employee to increase his or her income, and (3) there must be proportionality between value of the goods or services sold and rate paid to employee. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). 8 Cases that cite this headnote [15] Labor and Employment Retail or service establishments Neither case law nor Department of Labor (DOL) regulations establish per se requirement that commission employees must Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 282 of 520 PageID 918 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 be in sales to fall within FLSA retail or service establishment exemption. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). 1 Cases that cite this headnote [16] Labor and Employment Retail or service establishments Labor and Employment Overtime pay in general Cable installation business and its owners were entitled to FLSA “retail or service establishment” overtime exemption for weeks in which regular rate of pay for each member of subclass of installers was at least one and one half times the minimum wage for all hours of work performed, which it could not establish for time period in which it failed to track its employees' actual weekly hours. Fair Labor Standards Act of 1938, § 7(a)(1), (i), 29 U.S.C.A. § 207(a)(1), (i); 29 C.F.R. §§ 778.104, 779.419. 6 Cases that cite this headnote [17] Labor and Employment Overtime pay in general Labor and Employment Regular rate Formula for cable installation business's weighted halftime compensation plan did not violate FLSA or NYLL; plan was designed specifically to avoid issue presented in Supreme Court's 1945 Walling decision and to comply with Department of Labor (DOL) regulation prohibiting avoidance of overtime provisions by setting artificially low hourly rate. Fair Labor Standards Act of 1938, § 7(a)(1), 29 U.S.C.A. § 207(a)(1); 29 C.F.R. § 778.500(a); N.Y.McKinney's Labor Law § 190 et seq. Cases that cite this headnote [18] Labor and Employment Overtime pay in general Labor and Employment Working Time To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff must prove that he performed work for which he was not properly compensated, and that the employer had actual or constructive knowledge of that work, with “work” generally described as physical or mental exertion, whether burdensome or not, controlled or required by employer and pursued necessarily and primarily for benefit of employer and his business. Fair Labor Standards Act of 1938, § 7(a)(1), 29 U.S.C.A. § 207(a)(1). Cases that cite this headnote [19] Labor and Employment Meal or break periods Activities that occur during an unpaid mealtime constitute “work” and must be compensated if those activities are undertaken predominantly for the benefit of the employer. Fair Labor Standards Act of 1938, § 7(a)(1), 29 U.S.C.A. § 207(a)(1); 29 C.F.R. § 785.19. Cases that cite this headnote [20] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Determination of what qualifies as “work” is necessarily fact-bound; moreover, defendant is not entitled to summary judgment under the FLSA simply because the plaintiff has not precisely quantified the amount of uncompensated work he has performed, so long as a genuine issue of fact exists as to whether some uncompensated work was performed, defendant's knew of this work, and a reasonable basis exists for calculating the amount of that work. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. Cases that cite this headnote [21] Federal Civil Procedure Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 283 of 520 PageID 919 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Fair Labor Standards Act cases; wages and hours regulations Genuine disputes of material fact, as to whether cable installation business and its owners were aware that its installers worked through their lunch breaks and after their shifts to complete billing sheets without compensation, precluded summary judgment to defendants on installers' unreported hours claim under FLSA and NYLL. Fair Labor Standards Act of 1938, § 7(a)(1), 29 U.S.C.A. § 207(a)(1); N.Y.McKinney's Labor Law § 190 et seq. Cases that cite this headnote [22] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Although determination of whether individual is “employer” subject to liability for overtime payment is fact intensive, summary judgment remains appropriate when evidence, viewed in light most favorable to defendant, establishes as matter of law that defendant is in fact an “employer” under the FLSA. Fair Labor Standards Act of 1938, §§ 3(d), 7(a)(1), 29 U.S.C.A. §§ 203(d), 207(a)(1). Cases that cite this headnote [23] Labor and Employment Employment relationship In determining whether an individual is an “employer” under the FLSA, overarching concern is whether alleged employer possessed power to control workers in question with eye to economic reality presented by facts of each case; relevant factors include whether alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules, (3) determined the rate and method of payment, and (4) maintained employment records. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). Cases that cite this headnote [24] Labor and Employment Employers Included Sole owners of cable installation business acted as “employers” and were subject to individual liability for alleged overtime violations under FLSA; mere assertion that someone else may have been involved in determining company policies did not refute argument they were employers themselves. Fair Labor Standards Act of 1938, §§ 3(d), 7(a) (1), 29 U.S.C.A. §§ 203(d), 207(a)(1). Cases that cite this headnote [25] Implied and Constructive Contracts Unjust enrichment Under New York law, party claiming unjust enrichment must establish that (1) the other party was enriched, (2) at the first party's expense, and (3) equity and good conscience require restitution be paid to the first party. Cases that cite this headnote [26] Implied and Constructive Contracts Unjust enrichment Under New York law, assertion that plaintiff received a benefit as a result of defendants' actions is insufficient to support a claim of unjust enrichment by itself. 1 Cases that cite this headnote [27] Implied and Constructive Contracts Unjust enrichment Under New York law, essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit defendant to retain what is sought to be recovered; generally, courts will look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant's conduct was tortious or fraudulent. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 284 of 520 PageID 920 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 1 Cases that cite this headnote [28] Implied and Constructive Contracts Unjust enrichment Cable installers were not unjustly enriched insofar as they had retained tools provided by their employer for use in the course of their employment and had their payments for those tools returned to them by New York Department of Labor (NYDOL); equity and good conscience did not require installers to return payments made to them by NYDOL as reimbursement for unlawful wage deductions made by employer in the first place, and installers also were not enriched through mistake of fact or law. Cases that cite this headnote Attorneys and Law Firms *427 Nichols Kaster PLLP, of Counsel, Paul J. Lukas, Esq., Timothy C. Selander, Esq., Minneapolis, MN, Thomas & Solomon LLP, of Counsel, J. Nelson Thomas, Esq., Patrick J. Solomon, Esq., Justin M. Cordello, Esq., Rochester, NY, for Plaintiff. Girvin & Ferlazzo, PC, of Counsel, Scott P. Quesnel, Esq., Patrick J. Fitzgerald, III, Esq., Albany, NY, for Defendants. MEMORANDUM–DECISION and ORDER DAVID N. HURD, District Judge. TABLE OF CONTENTS INTRODUCTION............................................................................................................ ........ 428 FACTUAL BACKGROUND............................................................................................ ........ 428 The Parties............................................................................................................. ........ 428 Compensation Plan A............................................................................................ ........ 429 New York State Department of Labor Investigation............................................... ........ 429 Compensation Plan B............................................................................................ ........ 430 PROCEDURAL HISTORY.............................................................................................. ........ 430 DISCUSSION.................................................................................................................. ........ 431 Summary Judgment Standard............................................................................... ........ 431 Statute of Limitations............................................................................................. ........ 432 The “Retail or Service Establishment” Exemption to the FLSA............................. ........ 433 “Retail or Service Establishment”................................................................... ........ 434 Services for Resale..................................................................................................................... ............. 434 WESTI..AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 285 of 520 PageID 921 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 Recognition as Retail in Industry................................................................................................ ............. 436 Retail Concept.................................................................................................................. ............. 436 Recognition as Retail....................................................................................................... ............. 440 Commissions.................................................................................................. ........ 441 Regular Rate of Pay Equal to or Exceeding One and One–Half Times the Minimum Wage.............................................................................................. ........ 444 FLSA Class.................................................................................................................................. ............. 445 April 2006 to September 27, 2009................................................................................... ............. 445 September 28, 2009 to March 2010................................................................................ ............. 445 NYLL Class.................................................................................................................................. ............. 446 Conclusion as to Exemption.......................................................................... ........ 446 Compensation Plan B............................................................................................ ........ 446 Plan B's Weighted Halftime Formula............................................................. ........ 446 Unreported Hours........................................................................................... ........ 448 Individual Liability of Guillerault and Ruzzo........................................................... ........ 449 Unjust Enrichment.................................................................................................. ........ 451 CONCLUSION................................................................................................................ ........ 452 *428 I. INTRODUCTION Brett Johnson (“plaintiff”) brings this action on behalf of himself and all others similarly situated against Wave Comm GR LLC (“Wave Comm”), and its two owners, Robert Guillerault (“Guillerault”) and Richard Ruzzo (“Ruzzo”) (collectively “defendants”) alleging violations of the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 201–219 (“FLSA”) and New York Labor Law (“NYLL”), N.Y. Lab. Law §§ 190–191. Plaintiff claims Wave Comm failed to properly compensate Wave Comm installation technicians (“installers”) for overtime work. Defendants deny any violations of the FLSA or NYLL and counterclaim for unjust enrichment. Defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Rule ____”) 56. Plaintiff opposed, and defendants replied. On the same day, plaintiff filed a motion for partial summary judgment. Defendants opposed, and plaintiff replied. Oral argument was heard on April 19, 2013 in Utica, New York. 1 Decision was reserved. 1 Also pending but not the subject of oral argument nor this Memorandum–Decision and Order is defendants' motion for complete class decertification of both the FLSA and NYLL classes. ECF No. 141. That motion will be addressed in a separate decision filed this same date. II. FACTUAL BACKGROUND WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 286 of 520 PageID 922 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 A. The Parties Wave Comm, a New York corporation with an office in Utica, enters into contracts with cable television providers to perform installation and maintenance services for residential, commercial, and governmental customers in the surrounding area. Guillerault and Ruzzo are the sole owners of Wave Comm, and each possess a one-half interest in the business. They exercise joint financial control over the business and also make decisions regarding the hiring and firing of employees, compensation policies, and work schedules. During the relevant time, Wave Comm's primary client was Time Warner Cable (“Time Warner”). Wave Comm's contract with Time Warner accounted for more than 75% of its revenue and was obtained through a reverse bidding process. Wave *429 Comm employed installers whose duty it was to perform installation, maintenance, and construction services on cable television, internet, and telephone equipment for Time Warner subscribers. 2 The parties agree that Wave Comm installers had the same basic duties, but disagree that installers had the same work schedules. Johnson was an installer for Wave Comm from June 2008 to July 2010. 2 In addition to using Wave Comm installers, Time Warner also employed its own installers. Time Warner installers performed the same work as Wave Comm installers, but were paid an hourly wage plus overtime when they worked more than forty hours in a week. Time Warner directed Wave Comm to provide installation and maintenance services to Time Warner subscribers via work orders. Installers would receive new work orders each day. 3 After the work was completed, Time Warner compensated Wave Comm according to a rate schedule for each individual type of service performed. Wave Comm then paid its installers. During the time period at issue in this lawsuit (April 2006 to April 2011), Wave Comm utilized two distinct compensation plans for paying its installers. 4 3 The manner in which installers received work orders changed over time. 4 These plans are what separate the subclasses that have been certified, as discussed below. B. Compensation Plan A From April 2006 through March 2010, Wave Comm classified installers as exempt from the overtime pay requirements of federal and state law and paid them for each discrete item of work they performed, based on the rates Wave Comm negotiated with Time Warner, without regard for the amount of time spent doing the work. The amount paid to each installer was based on the installation activity and the installer's “Tech Rate.” Tech Rates were determined by installers' prior experience, longevity with Wave Comm, proficiency, and regular evaluations of their overall work performance. From April 2006 through April 2009, Wave Comm used a Tech Rate schedule that employed seven different Tech Rates, ranging from the lowest of “Probationary Technician” to the highest of “Tech Supervisor,” with five intermediate Tech Rates between those two rates. From approximately January 1, 2009 until April 2011, Wave Comm expanded the Tech Rate schedule to include ten intermediate Tech Rates between the “Probationary Technician” and the “Tech Supervisor” rates. Wave Comm did not track the number of hours its installers worked each day or each week. Guillerault Aff., Jan. 25, 2013, ¶¶ 24, 25, ECF No. 124–12. Instead, at the end of each day, installers would add up their daily installation activities and report them to Wave Comm by email. C. New York State Department of Labor Investigation In September 2009, the New York State Department of Labor (“NYDOL”) began an investigation into how Wave Comm paid its installers. Specifically, NYDOL investigated Wave Comm's failure to track its installers' work hours and failure to pay installers overtime wages when they worked more than forty hours in a work week. At this time, Wave Comm directed installers to start accurately and completely recording their work hours beginning on September 28, 2009. Ultimately, NYDOL withdrew its investigation of Wave Comm's overtime pay practices to allow the issue to be decided in this case. However, in March 2010, Wave Comm reclassified its installers as non-exempt from overtime *430 payments and instituted a “weighted halftime” compensation plan, referred to as Compensation Plan B (“Plan B”). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 287 of 520 PageID 923 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 The investigation also revealed that Wave Comm made deductions from installers' pay to cover the cost of tools that installers needed to perform their job duties. Essentially, installers were required to provide their own tools but often could not afford to purchase them outright. To facilitate the purchase of tools, Wave Comm purchased the tools and allowed installers to pay for the tools on an installment basis without interest through regular payroll deductions. Once the full value of the tools was deducted, Wave Comm ceased making deductions and the installer was allowed to keep the tools. NYDOL determined that these payroll deductions constituted an actionable violation of the NYLL. In May 2011, defendants executed a stipulation with NYDOL wherein Wave Comm agreed to pay NYDOL $147,478.61 for the wage deductions they made from 2005 to 2010. The installers received payments from NYDOL reimbursing them for the unlawful wage deductions made by Wave Comm. The installers are still in possession of the tools. D. Compensation Plan B In March 2010, following the NYDOL investigation, Wave Comm implemented Plan B, a “weighted halftime” compensation plan, which included the following three components: (1) hourly earnings, (2) a performance incentive, and (3) weighted halftime (overtime). First, hourly earnings were determined by multiplying an installer's total number of reported work hours by their hourly Tech Rate. Second, each installer was eligible for a performance incentive, which was additional compensation that could be earned by performing high quality work quickly. The determination of whether an installer earned a performance incentive was made on a week-to-week basis as follows: Wave Comm determined the total value of the installer's work based on the prior piece rate compensation plan; if the installer's hourly earnings exceeded the total value of the piece work under the piece rate compensation plan, no additional compensation was provided; but, if the installer's hourly earnings did not exceed the total value of the work under the piece rate compensation plan, the installer received additional compensation equal to the difference between his hourly earnings and the total value of the piece work. Third, regardless of whether an installer received a performance incentive, any installer who reported that he worked more than forty hours in a work week received additional compensation referred to as weighted halftime. Weighted halftime was calculated by taking the installer's total earnings, including hourly earnings plus performance incentives, and dividing that total amount by the installer's reported hours of work during that pay period. That figure was then divided in half and multiplied by the number of hours worked by the installer over forty in that pay period to determine the amount of weighted halftime owed. Plan B was in place from approximately March 2010 through April 2011, when Wave Comm began compensating installers under Compensation Plan C, a “points-based” system which includes a premium payment for the calculated value of overtime work. Plan C is not at issue in this lawsuit. III. PROCEDURAL HISTORY Plaintiff brought this collective and class action lawsuit in March 2010 to recover unpaid overtime wages under the FLSA and the NYLL. In July 2011, plaintiff's unopposed motion for conditional certification of the *431 FLSA class pursuant to 29 U.S.C. § 216(b) was granted. See ECF No. 59. Notice of the action was mailed to Wave Comm employees who had worked as installers within the past three years. 5 Pursuant to the FLSA, plaintiffs must opt-in to a collective action by filing written consent with the court. 29 U.S.C. § 216(b) (requiring employees to affirmatively consent to join a collective action). There are currently 57 installers in the FLSA opt-in collective action. 5 As explained below, the limitations period for an FLSA collective action is two years or, if the violation was willful, three years. 29 U.S.C. § 255(a). In October 2011, plaintiff's opposed motion for certification of the NYLL class pursuant to Rule 23 was granted. Johnson v. Wave Comm GR LLC, No. 6:10–CV– 346, 2011 WL 10945630 (N.D.N.Y. Oct. 4, 2011) (Report– Recommendation) (Baxter, M.J.) adopted by 2011 WL 10945627 (N.D.N.Y. Oct. 25, 2011). Notice of the action was mailed to Wave Comm employees who had worked as installers between April 4, 2006 and April 30, 2011. 6 Pursuant to the NYLL, individuals who fall within the class description become plaintiffs and must opt-out if they do not wish to proceed as part of the class action. See, e.g., Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 161 (S.D.N.Y.2008) ( “[I]n a class action potential class members are parties to the suit unless they affirmatively opt out.”). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 288 of 520 PageID 924 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 6 NYLL class actions are subject to a six year statute of limitations. N.Y. Lab. Law § 663(3). No class member opted-out and there are approximately 200 members of the NYLL class. 7 7 The 57 opt-in plaintiffs in the FLSA class are also members of the NYLL class. The proposed class was also divided into the following two subclasses: Subclass I: All persons who worked for Wave Comm as installers ... at any time between April 2006 and March 2010 ... who did not receive proper overtime pay when they worked more than forty (40) hours in any given work week. [under Plan A ] Subclass II: All persons who worked for Wave Comm as installers ... at any time between March 2010 and April 2011, with compensation determined based on Wave Comm's weighted halftime compensation system ... who did not receive proper overtime pay when they worked more than forty (40) hours in any given work week. [under Plan B ] Id. IV. DISCUSSION A. Summary Judgment Standard Summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(c)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment will not be entered where there is a genuine dispute about a material fact “such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and *432 that the undisputed facts establish her right to judgment as a matter of law.” Rodriguez v. City of N.Y., 72 F.3d 1051, 1060–61 (2d Cir.1995). “When considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor.” Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir.2005). Summary judgment should be granted “where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative.” Schwimmer v. Kaladjian, 988 F.Supp. 631, 638 (S.D.N.Y.1997) (citing Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505). Defendants move for summary judgment, arguing: (1) some opt-in plaintiffs' claims under the FLSA are time barred or limited; (2) members of Subclass I were exempt from overtime payments under the retail or service establishment exemption of the FLSA; (3) members of Subclass I were exempt from overtime payments under the NYLL; (4) members of Subclass II received overtime wages in compliance with the FLSA and NYLL; and (5) they are entitled to judgment as a matter law on their counterclaim for unjust enrichment. Plaintiff moves for partial summary judgment, arguing: (1) members of Subclass I were not subject to the retail or service establishment exception of the FLSA; (2) members of Subclass II were not paid overtime wages in accordance with the FLSA and the NYLL; (3) Guillerault and Ruzzo are employers under the FLSA and therefore individually liable; and (4) defendants are not entitled to damages for unjust enrichment. B. Statute of Limitations Defendants argue the statute of limitations that applies to claims for overtime wages and liquidated damages under the FLSA bars some of the opt-in plaintiffs from recovering any damages in this case, and limits the damages available to other opt-in plaintiffs based on the date each opt-in plaintiff elected to join this suit. [1] [2] Claims for overtime wages under the FLSA are subject to a two year statute of limitations unless the plaintiff can prove the employer committed willful violations. 29 U.S.C. § 255(a). If the plaintiff establishes that the violations were willful, a three year limitations period applies. Id. “[A] claim for unpaid overtime under the FLSA accrues at the end of each pay period when it is not paid.” Cook v. United States, 855 F.2d 848, 851 (2d Cir.1988) An action is deemed commenced: WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 289 of 520 PageID 925 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 (a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or (b) if such written consent was not so filed or if his name did not so appear—on the subsequent date on which such written consent is filed in the court in which the action was commenced. 29 U.S.C. § 256. Accordingly, each opt-in plaintiff was required to file his consent to join this lawsuit within two years of the last pay period for which he claims that he failed to receive wages as required by the FLSA, or within three years of that pay period if he can prove that the employer willfully violated the FLSA. [3] Defendants have submitted a chart which specifically identifies the date each opt-in plaintiff filed his consent and, based on this date, the extent of the limitation or preclusion of each class member's claim for damages under the FLSA. See Quesnel Aff., Jan. 25, 2013, Ex. W, ECF No. 124–122. Plaintiff does not dispute the law nor *433 has opposed defendants' chart. However, neither party moved for summary judgment on the issue of willfulness, and the question of willfulness is generally left to the trier of fact. See Solis v. SCA Rest. Corp., 938 F.Supp.2d 380, 393 (E.D.N.Y.2013) (collecting cases). Accordingly, it is found that the claims of the FLSA opt- in plaintiffs are limited as identified in defendants' Exhibit W, subject to a determination of willfulness by the jury. C. The “Retail or Service Establishment” Exemption to the FLSA The overtime compensation requirement of the FLSA, 29 U.S.C. § 207(a)(1), provides that “employees who work more than 40 hours per week must be compensated for each hour worked over 40 ‘at a rate not less than one and one-half times the regular rate at which he is employed.’ ” Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.2009) (quoting 29 U.S.C. § 207(a)(1)). The FLSA also sets forth a number of exemptions to this requirement. See 29 U.S.C. § 207(b)-(q). Defendants argue they were not required to provide overtime compensation to members of Subclass I because they were exempt workers under the “retail or service establishment exemption” enumerated in § 207(i). That provision states: No employer shall be deemed to have violated ... [29 U.S.C. § 207(a) ] by employing any employee of a retail or service establishment for a work week in excess of ... [40 hours], if (1) the regular rate of pay of such employee is in excess of one and one- half times the minimum hourly ... [wage], and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. 29 U.S.C. § 207(i). Thus, in order to show that the members of Subclass I were exempt workers, defendants must show: (1) Wave Comm qualifies as a retail or service establishment; (2) each Subclass I member received at least 50% of his income in the form of “commissions”; and (3) each Subclass I member was paid at least one and one-half times the minimum wage for all hours of work performed. See Schwind v. EW & Assocs., Inc., 371 F.Supp.2d 560, 563 (S.D.N.Y.2005). [4] “Because the FLSA is a remedial law, exemptions to the overtime pay requirement are narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” In re Novartis Wage and Hour Litig., 611 F.3d 141, 150 (2d Cir.2010) (internal citations and quotations omitted), abrogated on other grounds by Christopher v. SmithKline Beecham Corp., –––U.S. ––––, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012). “To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.” A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095 (1945). Accordingly, “an employer bears the burden of proving that its employees fall within an exempted category of the Act.” Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991). Plaintiff contends Wave Comm is unable to satisfy this heavy burden. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 290 of 520 PageID 926 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 [5] Members of Subclass I also seek to recover overtime wages under the NYLL. The NYLL does not, itself, require the payment of “overtime.” See Ballard v. Cmty. Home Care Referral Serv., Inc., 264 A.D.2d 747, 695 N.Y.S.2d 130 (N.Y.App. Div.2d Dep't 1999). However, NYLL section 655(5)(b), “empowers the Commissioner *434 of Labor to appoint a wage board, with the authority to, inter alia, recommend ‘regulations governing ... overtime or part-time rates.’ ” Johnson, 2011 WL 10945630, at *7 (quoting id.). Pursuant to that authority, the NYDOL promulgated 12 N.Y.C.R.R. § 142–2.2, which states that: An employer shall pay an employee for overtime at a wage rate of 1 1/2 times the employee's regular rate in the manner and methods provided in and subject to the exemptions of sections 7 and 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938, as amended, provided, however, that the exemptions set forth in section 13(a)(2) and (a) (4) shall not apply. In addition, an employer shall pay employees subject to the exemptions of section 13 of the Fair Labor Standards Act, as amended, except employees subject to section 13(a)(2) and (a)(4) of such act, overtime at a wage rate of 1 1/2 times the basic minimum hourly rate. Therefore, if Plan A qualifies under the § 207(i) exemption, defendants will not be obligated to pay overtime wages under the NYLL labor law. 8 8 In determining whether the exemption applies, it is undisputed that the application is identical under the FLSA and NYLL classes for the first two prongs. However, as to the third prong—whether each installer was paid one and one-half times the regular rate of pay for each week of work—that application differs with respect to the FLSA and NYLL classes. 1. “Retail or Service Establishment” [6] Section 207(i) of Title 29 of the United States Code lacks guidance on what constitutes a “retail or service establishment.” Courts have continued to apply the definition contained in the repealed “ § 13(a)(2)” of the FLSA in determining whether an employer is a retail or service establishment. See Kelly v. A1 Tech., No. 09 Civ. 962, 2010 WL 1541585, at *10 (S.D.N.Y. Apr. 12, 2010); English v. Ecolab, Inc., No. 06 Civ. 5672, 2008 WL 878456, at *2 (S.D.N.Y. Mar. 31, 2008). Under the repealed section, a retail or service establishment was defined as “ ‘an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.’ ” English, 2008 WL 878456, at *2 (quoting 29 U.S.C. § 213(a)(2) (repealed by Pub.L. No. 101–157 (1989))). a. Services for Resale Wave Comm argues that its cable installation services are not for resale because they are provided directly to end user customers in their homes, and not to distributors who acquire the services with the intent of reselling them. Plaintiff argues that because Time Warner pays Wave Comm for the services, and Time Warner is then compensated by the end user, Time Warner is effectively reselling the services to its customers. It is undisputed that more than 75% of Wave Comm's annual business is derived from its contract with Time Warner, and that Time Warner customers do not pay Wave Comm directly for the services Wave Comm provides. The FLSA does not define the term “resale,” but United States Department of Labor (“DOL”) regulations and other courts apply the term's “common meaning,” which “is the act of ‘selling again.’ ” 29 C.F.R. § 779.331. According to regulations, “[a] sale is made for resale where the seller knows or has reasonable cause to believe that the goods or services will be resold, whether in their original form, or in an altered form, or as a part, component *435 or ingredient of another article.” 29 C.F.R. § 779.331. Applying this standard, other courts have found that a resale of goods or services did not occur in determining whether an employer qualified as a retail or service establishment. In Schwind, the defendant- employer supplied independent contractors to provide computer training for its clients' customers, and billed WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 291 of 520 PageID 927 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 its clients for those services. 371 F.Supp.2d at 563. The end users who received the computer training paid the defendant's clients, and the clients then paid the defendant-employer. Id. at 566. The Court found that the defendant-employers' services were at the end of the stream of distribution, and were not intended for resale. Id. The Court reasoned that the computer training services were not being resold, because the “defendants provided a service to the end customer, even if it was their client's customer.” Id. Even more similar to the facts here, in Schultz v. Crotty Bros. Dallas, Inc., a food service company contracted with a school to provide meals for students. The school compensated the food service company and then included the cost of food in the tuition bills paid by the parents; the students did not pay the food service company directly. 304 F.Supp. 191, 193 (W.D.Tex.1969). The Court rejected the argument that there was a resale of goods and instead found the passing of money from the parents, through the school, to the defendant food service company to be merely a “matter of convenience.” Id. at 196. The Court reasoned that the arrangement did not involve reselling because the school “never acquire[d] any right, title or interest in the food.” Id. Most notably however, are the recent decisions of two district courts, one in this Circuit and one in the Eleventh Circuit. When faced with the same question, these courts found that services provided by a cable installer to customers of a cable provider were not services for resale because there was no “subsequent sale” of the services. Owopetu v. Nationwide CATV Auditing Servs., Inc. (“Owopetu I ”), No. 10 Civ. 18, 2011 WL 883703, at *9 (D.Vt. Mar. 11, 2011) (denying without prejudice defendant's motion for summary judgment after determining more evidence was required as to whether defendant's services were considered retail in the industry); 9 see also Jones v. Tucker Commc'ns, Inc., No. 11 Civ. 398, 2013 WL 6072966, at *6 (M.D.Ga. Nov. 18, 2013). Both courts found that the customers to whom the defendant-cable installation companies directly provide its services are “at the very end of the stream of distribution,” and therefore those defendants “provide [ ] ... repair services ... for the comfort and convenience of [the general] public in the course of its daily living,” as opposed to providing them for redistribution. Owopetu I, 2011 WL 883703, at *7 (quoting 29 C.F.R. § 779.318(a)); see also Jones, 2013 WL 6072966, at *7 (“Tucker [Communications, Inc.] operates at the end of the stream of distribution and serves the everyday needs of the community.”) 9 The defendant later renewed its motion and was granted partial summary judgment. Owopetu v. Nationwide CATV Auditing (“Owopetu II ”), No. 5:10–CV–18, 2011 WL 4433159 (D.Vt. Sept. 21, 2011). [7] Like the sellers in Schwind, Schultz, Owopetu I, and Jones, Wave Comm's provision of cable installation services to Time Warner customers does not constitute services for resale because there is no reselling. The customers to whom Wave Comm provides services are at the very end of the stream of distribution and therefore Wave Comm “provides ... its *436 repair services ... for the comfort and convenience of [the general] public in the course of its daily living,” as opposed to providing them for redistribution. See Owopetu I, 2011 WL 883703, at *7. Wave Comm provides services to the end customer, even if that customer is Time Warner's customer. See Schwind, 371 F.Supp.2d at 566. It is inconsequential that Wave Comm is compensated by Time Warner for its services rather than by the end customer. The cost for Wave Comm's services is paid by the end consumer and it is merely a matter of convenience that payment passes through Time Warner as charges for installation services included in the customers' monthly cable bills. Plaintiff also argues that the sale of Wave Comm's services to Time Warner customers is analogous to an example of a sale for resale included in DOL regulations. 29 C.F.R. § 779.334. The regulation provides that in certain circumstances, sales of services to a business for a specific use in performing a different service which such business renders to its own customers are in economic effect sales for resale as a part of the service that the purchaser in turn sells to his customers, even though such services are consumed in the process of performance of the latter service. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 292 of 520 PageID 928 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 Id. An example of this is a storage establishment which uses mothproofing services to provide satisfactory storage services for its customers. Id. In such a case, the sale of the mothproofing services to that storage establishment is considered a sale for resale because the mothproofing services are sold to the storage company for the specific use of maintaining the storage company's facilities and rendering its storage services to its own customers, even though the mothproofing services are consumed in the process of providing the storage services. Id. However, Wave Comm's services are distinguishable from this example and plaintiff's argument is unpersuasive. Wave Comm's services are not consumed as part of Time Warner's provision of cable television services, rather, they are a “discrete and necessary component” required for the end consumer to have access to cable television. Jones, 2013 WL 6072966, at *6. Accordingly, defendants have established that at least 75% of its annual volume of sales are services not for resale. b. Recognition as Retail in Industry [8] Having concluded that 75% of Wave Comm's services are not for resale, Wave Comm must next prove that its services are recognized as retail in the industry. Although the FLSA's language references recognition within the applicable industry, the Supreme Court has held that the question of whether a defendant's business is recognized as retail is determined by the court, not by the defendant or the defendant's industry. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 204–05, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966); English, 2008 WL 878456, at *12. To aid in this determination, courts have fashioned another two-prong test based on DOL regulations: (1) the establishment must be part of an industry in which there is a “retail concept”; and (2) the establishment's services must be recognized as retail in that particular industry. See Kelly, 2010 WL 1541585, at *11 (citing 29 C.F.R. §§ 779.316, .322). i. Retail Concept [9] A business must have a retail concept before the industry characterization of its sales can be considered. Jones, 2013 WL 6072966, at *6. However, “a ‘retail concept’ cannot be artificially created in an industry in which there is no traditional *437 concept of retail selling or servicing.” 29 C.F.R. § 779.316. The characteristics of a retail or service establishment in 29 C.F.R. § 779.318(a) help define this “retail concept”: Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the Nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing process.... It provides the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living. A retail concept is entirely foreign to some businesses, such as insurance companies and electric power companies. Id. § 779.316. Likewise, accounting firms, advertising agencies, dentists' offices, and securities dealers lack a retail concept. Id. § 779.317. There are other types of businesses however, “in industries where it is not readily apparent whether a retail concept exists and whether or not the exemption can apply.” Id. As such, the regulations do not provide an exhaustive list of qualifying establishments. Although cable installation and repair establishments are not identified in the regulations, § 779.320 provides a partial list of establishments whose sales or service may be recognized as retail. 10 That list includes a number of repair establishments including refrigerator service and repair shops, piano tuning establishments, shoe repair shops, automobile repair shops, and watch, clock and jewelry repair shops. 10 It is noted that in several cases, including one in this Circuit, the “retail concept” of businesses nearly identical to Wave Comm's has not even been at issue. See Moore v. Advanced Cable Contractors, Inc., No. 1:12–CV–00115, 2013 WL 3991966, at *3 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 293 of 520 PageID 929 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 (N.D.Ga. Aug. 1, 2013) (“Defendants assert, and Plaintiffs do not dispute, that Advanced Cable is a retail and service establishment for the purposes of the FLSA.”); Owopetu II, 2011 WL 4433159, at *4 (“[Plaintiff] does not dispute that the industry of servicing, installing, and repairing cable and broadband equipment has a ‘retail concept.’ ”); Gruchy v. DirecTech Del., Inc., No. 08–10755, 2010 WL 3835007, at *2 (D.Mass. Sept. 30, 2010) (noting there was no dispute that company who performed similar services for a satellite television provider was a retail or service establishment); Horn v. Digital Cable & Commc'ns, Inc., No. 1:06 CV 325, 2009 WL 4042407, at *4 (N.D.Ohio Feb. 11, 2009) (noting defendant cable installation company put forth undisputed evidence that it qualified as a retail or service establishment). Plaintiff contends Wave Comm is unlike traditional retail establishments because rather than selling its services to the general public, Wave Comm sells its services to a single customer, Time Warner. Further, according to plaintiff, “[t]he general public's needs are cable television, telephone, or internet services, and Wave Comm merely assembles, installs and fixes the equipment necessary for [Time Warner] to sell its customers to begin, resume or continue the entertainment and communication services that [Time Warner] provides.” Pl.'s Mem. Supp. Mot. Summ. J. 19. Wave Comm's services are more analogous to the repair establishments listed in 29 C.F.R. § 779.320 than to the businesses identified in § 779.316 or § 779.317 which lack a retail concept. An establishment such as Wave Comm which installs and repairs cable services possesses the characteristics listed in § 779.318(a). According to plaintiff Johnson, Wave Comm's sales and services are available to the general public, including business and residential *438 customers, for their personal use. Defs.' Statement of Mat. Facts ¶ 48. The cable installation services are provided to individual members of the general public in their own homes to enable them to access cable television and other services. Johnson also testified that installing and repairing cable television, the internet, and digital telephone, serves the everyday needs of the communities in which Wave Comm provides its services. Id. ¶ 49. As discussed above, the services provided by Wave Comm are not resold or redistributed. Rather, they are used by the person who purchases them, so they are at the end of the stream of distribution. Finally, Johnson testified that Wave Comm does not manufacture any products. Id. ¶ 46. Plaintiff also insists that Wave Comm's status as a subcontractor performing construction-like work for Time Warner's customers closely equates it to the various home contractor entities that the DOL has identified as establishments lacking a retail concept. Plaintiff relies on materials promulgated by the DOL's Occupational Safety and Health Administration as part of the Standard Industrial Classification System (“SIC”), as well as the U.S. Census Bureau's North American Industry Classification System (“NAICS”) to argue Wave Comm is like a construction contractor and plaintiff is a cable television hookup contractor. 11 According to plaintiff, under the SIC, “cable television hookup-contractors” are categorized under the construction and not retail trade division. 12 Likewise, under the NAICS, “cable television hookup contractors” are also categorized under the construction and not retail trade sector. 13 11 Plaintiff also cites DOL press releases and asserts that “recent DOL investigations into cable installation companies like Wave Comm confirm that the DOL does not consider these companies to be retail.” Pl.'s Mem. Supp. Mot. Summ. J. 20. However, as defendants point out, those investigations concerned the failure to pay overtime on piece rate wages, and as described below, members of Subclass I were paid by commissions. Therefore, the press releases are irrelevant to the question of whether Wave Comm qualifies as a retail or service establishment. 12 U.S. Dep't of Labor's Occupational Safety & Health Admin., SIC Manual (last visited March 3, 2014), http://www.osha.gov/pls/imis/sic_ manual.display?id=416&tab=description. 13 U.S. Census Bureau, N. Am. Industry Classification Sys. (last visited March 3, 2014), http://www.census.gov/cgi-bin/sssd/naics/ naicsrch? code=238210&search=2012 NAICS Search. Defendants dispute the characterization of Wave Comm installers as cable television hookup contractors and the conclusion that Wave Comm is part of the construction industry. They argue installers do far more than simply hook up cable, and are responsible for installing, maintaining, and repairing cable television, the internet, and digital telephone systems, and have detailed telecommunications training. Defendants cite the DOL Bureau of Labor Statistics' WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 294 of 520 PageID 930 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 16 Standard Occupational Classification (“SOC”) which characterizes the position of “Telecommunications Equipment Installers and Repairers, Except Line Installers” as an “Installation, Maintenance and Repair Occupation.” 14 Telecommunications equipment installers and repairers “[i]nstall, set-up, rearrange, or remove switching, distribution, routing, and dialing equipment used in central offices or headends. Service or repair telephone, cable television, Internet, and other communications equipment on customers' property.” Id. Again, this position is classified within the SOC Major Group of “Installation, *439 Maintenance and Repair Occupation” and not “Construction and Extraction Occupations.” Defendants also point out that the position of cable television hookup contractor does not appear anywhere in the SOC. Defs.' Mem. Opp. Mot. Summ. J. 14–15. Further, in the NAICS, the telecommunications subsector is within the information sector, and not the construction sector. 15 The DOL Bureau of Labor Statistics' Occupational Outlook Handbook also lists “Telecommunications Equipment Installers and Repairers, Except Line Installers,” within the telecommunications industry. 16 14 U.S. Dept of Labor, Bureau of Labor Statistics', Standard Occupational Classification (last visited March 3, 2014), http://www.bls. gov/soc/2010/ soc492022.htm. 15 Id., http://www.census.gov/cgi-bin/sssd/naics/ naicsrch? code=517&search=2012 NAICS Search. 16 U.S. Dept of Labor, Bureau of Labor Statistics', Occupational Outlook Handbook (last visited March 3, 2014), http:// www.bls. gov/ooh/installation-maintenance-and- repair/telecommunications-equipment-installers- and-repairers-except-lineinstallers.htm. Installing, setting up, servicing, and repairing telephone, cable television, Internet, and other communications equipment on customers' property is exactly what plaintiff Johnson and the opt-in plaintiffs in this case did. Multiple sources recognize this position to be within the telecommunications industry. Plaintiff's reliance on the two sources categorizing the installers' work as construction based is unpersuasive as the installers did more than hookup wiring for cable television. Installers also dealt directly with end users in their homes or businesses. Installers' job duties are more analogous to those detailed in the telecommunications industry descriptions than the construction industry descriptions. Accordingly, it is found that the members of Subclass I are appropriately classified as members of the telecommunications industry, an industry with a retail concept, and not the construction industry, an industry lacking a retail concept. Plaintiff also argues that Wave Comm's services are not retail because Wave Comm engages in wholesale sales, not retail sales, and because it obtained its contract with Time Warner through a reverse bidding process. According to the regulations, “[s]ales made pursuant to formal bid procedures ... oftentimes by commercial and industrial concerns involving the issuance by the buyer of a formal invitation to bid on certain merchandise or services for delivery in accordance with prescribed terms and specifications, are not recognized as retail sales.” 29 C.F.R. § 779.328(d). That section also provides guidance on how to distinguish between retail and wholesale sales: Typically, retail sales are made to the general consuming public. The sales are numerous and involve small quantities of goods or services. Wholesale establishments usually exclude the general consuming public as a matter of established business policy and confine their sales to other wholesalers, retailers, and industrial or business purchasers in quantities greater than are normally sold to the general consuming public at retail. Id. § 779.328(a). Plaintiff's arguments under § 779.328 rest on the presumption that Wave Comm provides its services to Time Warner, not Time Warner subscribers. As explained above in the services for resale section, Wave Comm provides its services to the individuals that use Time Warner products and services and thus its sales involve small quantities of goods and services to the general consuming public. While Time Warner provides work orders to Wave Comm pursuant to a contract established as a result of a formal bidding process, *440 Wave WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 295 of 520 PageID 931 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 17 Comm's services are still sold in small quantities to individual members of the general public. [10] Finally, it is seemingly undisputed that if Time Warner employees provided the same services to their own customers, Time Warner would be selling its services to the general public, serving the everyday needs of the community, and performing a function at the very end of the stream of distribution. Thus, plaintiff's contention is that Wave Comm's status as a subcontractor for Time Warner prevents it from satisfying the exemption because it services Time Warner as opposed to the general public. However, “courts have found a party's status as a subcontractor does not alter the retail nature of its business.” Jones, 2013 WL 6072966, at *7 (collecting cases). Moreover, as in Jones, plaintiff here has not located any cases holding that a business cannot qualify for the retail or service establishment exemption solely based on their status as a subcontractor. This is so because “the focus here is on the nature of the services, not the arrangement between the providers of those services.” Id. at *7. Wave Comm's contractual relationship with Time Warner does not preclude it from having a retail concept. For these reasons, Wave Comm operates in an industry with a retail concept. ii. Recognition as Retail [11] Having concluded that Wave Comm operates in an industry with a retail concept, it must be determined if its services are recognized as retail within its industry. “Such a determination must take into consideration the well-settled habits of business, traditional understanding and common knowledge.” 29 C.F.R. § 779.324. In making this decision, courts should consider the understandings of persons with knowledge of recognized industry classifications as well as sellers, purchasers, employers, employees, and private or governmental research organizations. Id.; Owopetu II, 2011 WL 4433159, at *4 (explaining that court must first look to evidence as to how people in the industry view the establishment). Next, the focus shifts to the inquiry already made under 29 C.F.R. § 779.318(a). See Owopetu II, 2011 WL 4433159, at *5. That is, whether the business: (1) sells goods or services to the general public; (2) serves the everyday needs of the community; (3) is at the end of the stream of distribution and does not take part in the manufacturing process. 29 C.F.R. § 779.318(a). Defendants have not provided any testimony as to how people in the industry and with knowledge of the industry view Wave Comm's business. In Owopetu I, the defendant's motion for summary judgment was denied without prejudice for this very reason. 2011 WL 883703, at *9 (finding more evidence was required as to whether defendant's services were considered retail in the industry). The Owopetu I Court found that it was insufficient for defendant Nationwide to rely on another case, Horn v. Digital Cable & Commc'ns, Inc., 1:06 CV 325, 2008 WL 7140826, at *7 (N.D.Ohio Nov. 18, 2008), to show that Nationwide was recognized as retail within its industry, where the plaintiffs in Horn did not dispute that the defendant in that case provided “retail” services. Owopetu I, 2011 WL 883703, at *9, n. 5. Therefore, “the question of whether the defendant's services were recognized as retail within the industry was simply not at issue in Horn.” Id. Upon renewing its motion in Owopetu II, defendant Nationwide submitted two affidavits to demonstrate that persons in and with knowledge of the telecommunications industry view Nationwide's services as retail. First, Nationwide's Corporate Office Manager and member of the Society *441 of Cable Telecommunication Engineers testified that Nationwide installers are “employed in an enterprise that is recognized as retail in the industry” and “contrasted the services that Nationwide technicians provide with laying or stringing cable to access a new housing development or an area previously not served by cable, which is not recognized as retail.” Owopetu II, 2011 WL 4433159, at *5 (internal quotations omitted). Second, a certified professional vocational rehabilitation consultant testified that the position of a Nationwide technician “fall[s] within the generally-recognized and accepted definition of ‘retail sales' occupations.” Id. (internal quotations omitted). The plaintiff did not produce any evidence to the contrary and the Court found that Nationwide “established that persons within and with knowledge of the telecommunications industry view Nationwide as providing retail services.” Id. More recently, in Jones, the defendants submitted the testimony of a high level executive in the telecommunications industry who opined that “the sale of cable installation services and equipment to individual consumers and the installation services performed by technicians by delivering, installing or servicing the equipment purchased or leased by the customer and activating or maintaining the customer's connection to the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 296 of 520 PageID 932 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 18 cable company's cable service” constitutes retail services, while laying or stringing cable to access a new housing development or a previously unserved area would not. 2013 WL 6072966, at *9 (internal quotations omitted). This is the case because the latter services “are for the direct benefit of the cable company, rather than for the comfort and convenience of the end user.” Id. The defendants in Jones also relied on the industry testimony submitted in Owopetu II. The Jones Court found that the defendants satisfied the “recognized as retail” prong of the exemption. 2013 WL 6072966, at *9. Here, the parties do not dispute that Wave Comm installers install, service, and repair equipment for Time Warner's customers in connection with their cable, internet, and telephone services. These services fall within the category of services the affiants in Owopetu II and Jones list as being considered retail. Further, the classifications provided by defendants support a view that Wave Comm installers fall within the telecommunications industry, an industry recognized as retail and not construction. Plaintiff has not shown the existence of a triable issue of fact regarding the industry view. Therefore, Wave Comm has satisfied its burden to show that its business is recognized as retail within its industry. Because Wave Comm has a retail concept and is recognized as retail within its industry, it qualifies as a retail or service establishment and has met the first prong of the exemption. 2. Commissions [12] To satisfy the second prong of the FLSA's retail or service establishment exemption, Wave Comm must establish that each Subclass I member received at least 50% of his income in the form of “commissions.” There is no dispute that every member of Subclass I earned at least 50% of his income under Plan A, where compensation was based on Tech Rates. Therefore, the only question is whether this compensation plan paid installers by commissions. Defendants contend the payments constituted commissions, while plaintiff argues installers were paid on a piece rate basis. Plaintiff emphasizes that defendants referred to this compensation plan as a “piece rate” plan themselves, as *442 well as in internal documents and communications with governmental agencies. [13] [14] Neither the FLSA nor DOL regulations provide a definition for the term “commission” as it is used in 29 U.S.C. § 207(i). Owopetu I, 2011 WL 883703, at *3 (citing Parker v. NutriSystem, Inc., 620 F.3d 274, 278 (3d Cir.2010)). What constitutes a commission under the FLSA “is an issue that finds little illumination from the sparse case law and the vague references in statutes and regulations.” Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.2001). Judge Posner has instructed that “[t]he essence of a commission is that it bases compensation on sales, for example a percentage of the sales price, as when a real estate broker receives as his compensation a percentage of the price at which the property he brokers is sold.” Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505, 508 (7th Cir.2007). He went on to explain in Yi: Although his income is likely to be influenced by the number of hours a week that he works, the relation is unlikely to be a regular one. In one week business may be slow; he may make no sales and thus have no income for that week. The next week business may pick up and by working overtime that week he may be able to make up the income he lost because of slack business the previous week. Over a year his hours of work may be similar to those of regular hourly employees. So if he had to be paid overtime, his annual income would be higher than theirs even though he hadn't worked more hours over the course of the year than they had. We take this to be the rationale for the commission exemption from the FLSA's overtime provision. Id. When concluding a commission-based scheme exists, courts have generally found the following three components present: (1) the employee's compensation must be tied to customer demand WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 297 of 520 PageID 933 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 19 or the quantity of sales; (2) the compensation plan must provide performance-based incentives for the employee to increase his or her income; and (3) there must be proportionality between the value of the goods or services sold and the rate paid to the employee. Owopetu I, 2011 WL 883703, at *4 (internal citations omitted). [15] Plaintiff first argues that the retail sales exemption was not intended to apply to employees like those of Wave Comm, and was instead intended to apply to commissioned employees in department stores selling “big ticket” items. See 29 C.F.R. § 779.414. This argument is without merit. “Neither case law nor DOL regulations establish a per se requirement that commission employees must be ‘in sales.’ ” Owopetu I, 2011 WL 883703, at *4. Turning to the components set out by the courts, Wave Comm's customer demand drove the number of installation and repair services it provided, which in turn drove the compensation that was available to installers. Plaintiff and other installers testified that the demand for Wave Comm's services fluctuated throughout the year, which corresponded with a fluctuation in the volume of work orders, number of tasks completed, and income received. Plaintiff does not argue that wages under Plan A were disconnected from customer demand and therefore the first component of a commission-based scheme is present. Second, it is clear that Plan A provided performance- based incentives for installers to increase their income. Plan A encouraged Wave Comm installers to work quickly to complete their orders which allowed them to request additional assignments. Plaintiff testified that once all of his assigned *443 work orders were complete, he could contact Wave Comm and request additional work orders. Because his compensation was tied to the tasks successfully completed and not the number of hours worked, he had the opportunity to earn additional income by working faster and completing more tasks. “[A] number of cases have found commissions to exist based upon an employee's incentive merely to work faster.” Owopetu I, 2011 WL 883703, at *4 (collecting cases). After all, “[t]hat is how commissions work; they are decoupled from actual time worked.” Yi, 480 F.3d at 509. Performance incentives were also built into Plan A by way of assigned Tech Rates. Installers were assigned a Tech Rate; the higher an employee's Tech Rate, the higher the rate of pay they received for each installation or repair service. The assignment of a Tech Rate included an installer's proficiency and regular evaluations of their overall work performance. Thus, an installer who worked quickly and with a high degree of quality could be assigned a higher Tech Rate and earn higher compensation per task. Plaintiff does not argue that Plan A did not provide performance incentives and therefore the second component of a commission-based scheme is present. With respect to the final component, defendants contend there is direct proportionality between the value of the services sold by Wave Comm and the rate paid to installers because installers received a percentage of the gross revenue that Wave Comm received from Time Warner for each item of work performed by installers. This amount fluctuated when Time Warner increased or decreased the price it paid to Wave Comm for its services. Plaintiff argues that proportionality is lacking because “although the piece rate paid to the installers may have been a percentage of the amount [Time Warner] paid Wave Comm, that does not change the fact that the installers' pay bore no relationship to what the end user paid [Time Warner] for these services.” Pl.'s Mem. Supp. Mot. Summ. J. 26. According to plaintiff, installers' compensation had no relation to the amount Time Warner customers were charged for the installation service, and instead was dictated solely by the contract between Time Warner and Wave Comm. This is the same argument made by the plaintiff in Owopetu I and misconstrues the proportionality requirement. 2011 WL 883703, at *4. Compensation consisting of commissions “usually denotes a percentage of the amount of monies paid out or received, as opposed to paying a set flat-rate for every item, regardless of its value.” Id. at *5 (internal quotations omitted). In this case, the rate paid to Time Warner by its subscribers is not indicative of the value of the services sold by Wave Comm and paid to Wave Comm's installers. It is the proportionality between the rate paid by Time Warner to Wave Comm and the rate paid by Wave Comm to its installers that must be examined. “Under Plan A, Wave Comm assigned a specific dollar value to each item of WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 298 of 520 PageID 934 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 20 work performed by its installation technicians ... [which] represented a percentage of the income Wave Comm received from [Time Warner] for each item of work.” Guillerault Aff., June 24, 2011, ¶ 13, ECF No. 52–7. These facts are analogous to those in Owopetu I, where proportionality was satisfied as it was undisputed that the “service technicians are paid a percentage of the scheduled rate for every service they perform, and their pay thus fluctuates ‘in tandem’ with the value of each service.” 2011 WL 883703, at *5. Contrary to that plaintiff's assertion, the Court found that “this proportionality is not disturbed by the fact that Nationwide is compensated by a third party, [Time Warner], rather *444 than the individual end-user customers. Regardless of the source of the payment, Nationwide splits a percentage of the revenue with its service technicians.” Id. Finally, as Magistrate Judge Baxter noted, “[w]hile the defendants' characterization of Wave Comm's compensation system may have some probative value, it should not, in this court's view, be dispositive on the ultimate issue of whether Wave Comm had a ‘commission’ or ‘piece rate’ compensation system under the FLSA.” Am. Decision & Order, Sept. 27, 2011, ECF No. 72, at 14 (citing Horn, 2009 WL 4042407, at *5 (plaintiffs' statements that they are paid on a “piece rate” basis merely asserts a legal position without providing facts to support that position—e.g., pay reports, commission sheets, or pay calculations)). Accordingly, members of Subclass I were compensated in proportion to the value that Wave Comm received from Time Warner for each service and the fact that Wave Comm was compensated by Time Warner and not by the individual end-user customer does not change the proportionality finding. Because defendants have demonstrated that compensation was tied to customer demand, the plan provided performance-based incentives, and proportionality existed, the payments made to members of Subclass I under Plan A constituted commissions and defendants have satisfied the second prong of the exemption. 3. Regular Rate of Pay Equal to or Exceeding One and One–Half Times the Minimum Wage Finally, to fulfill the third and final prong of the exemption, Wave Comm must establish that the regular rate of pay for each Subclass I member was at least one and one-half times the minimum wage for all hours of work performed. The regular rate of pay is “the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed and by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.” 29 C.F.R. § 779.419 (internal citations omitted). The regular rate of pay is computed by taking an employee's total weekly earnings divided by his total hours worked during that week. If this number exceeds one and one-half times the federal minimum hourly wage, then the final requirement of the retail or service establishment exemption is satisfied. The regular rate of pay must be calculated on a weekly basis; the averaging of hours over two or more weeks is not permitted. 29 C.F.R. § 778.104; (each workweek stands alone); see also Owopetu I, 2011 WL 883703, at *9 (citing Viciedo v. New Horizons Computer Learning Ctr. of Columbus, Ltd., 246 F.Supp.2d 886, 895 (S.D.Ohio 2003)). For example, if an employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even though the average number of hours worked in the 2 weeks is 40.... The rule is also applicable to pieceworkers and employees paid on a commission basis. It is therefore necessary to determine the hours worked and the compensation earned by pieceworkers and commission employees on a weekly basis. 29 C.F.R. § 778.104 (emphasis added). Throughout the time that members of Subclass I worked for Wave Comm, the federal minimum wage changed several times. For work performed prior to July 24, 2007, the federal minimum wage was $5.15 per hour; for work performed from *445 July 24, 2007 to July 23, 2008, the federal minimum wage was $5.85 per hour; for WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 299 of 520 PageID 935 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 21 work performed from July 24, 2008 to July 23, 2009, the federal minimum wage was $6.55 per hour; and for work performed on or after July 24, 2009, the federal minimum wage was $7.25 per hour. Pl.'s Resp. to Defs.' Statement of Mat. Facts ¶ 77. Accordingly, one and one half times the federal minimum wage was $7.73; $8.78; $9.83; and $10.88 per hour, respectively. Id. ¶ 78. The issue is therefore whether the regular rate of pay for each member of Subclass I was at least $7.73; $8.78; $9.83; and 10.88 during the applicable time periods. Defendants have submitted a chart detailing each Subclass I opt-in plaintiff, their hire date, pay periods in which they worked, bi-weekly and/or weekly earnings, weekly hours worked, hourly rate, one and one-half times the minimum wage at that time, and accordingly, whether the wage requirement was satisfied. 17 Quesnel Aff., Jan. 25, 2013, Ex. U, pts. 1 & 2, ECF No. 124–119 (minimum wage chart). 17 Defendants only included Subclass I FLSA opt-in plaintiffs in this chart. a. FLSA Class i. April 2006 to September 27, 2009 [16] Wave Comm does not possess any record of hours of work for the period between April 2006 and September 27, 2009. Instead, defendants claim they can show that members of Subclass I received compensation greater than one and one-half times the minimum wage for almost all weeks using estimates of hours worked provided by plaintiffs in interrogatories. 18 See Defs.' Mem. Supp. Summ. J. 25, 26; Quesnel Aff., Ex. M, pts. 1–14, ECF No. 124–97 (interrogatory responses). Based on those responses and estimated hours of work, defendants' chart (Exhibit U) details the weeks in which the minimum wage requirement was satisfied and the weeks in which it was not for opt-in plaintiffs. However, the average hours reported by the opt-in plaintiffs cannot be used by defendants to satisfy their burden under § 207(i) because the regular rate of pay must be calculated on a weekly basis and the average amount of hours worked cannot be used. See 29 C.F.R. § 778.104. As Wave Comm failed to track its employees' actual weekly hours between April 2006 and September 27, 2009, it cannot establish that members of Subclass I earned more than one and one-half times the minimum wage for any week during that period. Therefore, defendants have not satisfied the third prong of the exemption for the period of April 2006 through September 27, 2009. 18 Wave Comm only possesses interrogatory responses regarding hours worked from FLSA opt-in plaintiffs. They were denied discovery from NYLL plaintiffs. It is noted that the 57 opt-in plaintiffs are also members of the NYLL class, so defendants possess responses from those 57 installers. ii. September 28, 2009 to March 2010 Wave Comm started tracking installers' actual working hours on September 28, 2009, and therefore Wave Comm possesses hours of work for Subclass I members beginning on September 28, 2009, through the end of the period covered by Subclass I (March 2010). Defs.' Statement of Mat. Facts ¶ 79; Guillerault Aff., Jan. 25, 2013, Ex. O, ECF No. 124–78 and Ex. P, ECF No. 124–79. Based on the actual number of hours worked for that period, and the calculations submitted by defendants in the minimum wage chart (Exhibit U), it can be determined that the regular rate of pay for each opt-in plaintiff in Subclass I was at least one and one-half times the minimum wage in some, but not all weeks *446 from September 28, 2009 onward. Wave Comm has thus satisfied the third prong of the exemption only with respect to pay periods covering September 28, 2009 and forward in which opt- in plaintiffs in Subclass I earned one and one-half times the minimum wage based on recorded hours of work, indicated by a “YES” in the far right “Minimum Wage Requirement Satisfied” column of Exhibit U. For the weeks in which employees did not earn one and one- half times the minimum wage, the exemption cannot be applied. b. NYLL Class Defendants have not submitted any reported actual hours of work, weekly wages, or calculations to demonstrate that members of the NYLL Subclass I were paid one and one-half times the minimum wage for all weeks that they worked. Therefore it is impossible to determine on summary judgment whether Wave Comm satisfies the third prong of the exemption for the NYLL class. Accordingly, the exemption will be denied without prejudice for the NYLL class. 4. Conclusion as to Exemption Wave Comm established that 75% of its annual dollar volume of services are not resold. It also proved that it has a retail concept, is recognized as a retail business WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 300 of 520 PageID 936 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 22 within its industry, and that members of Subclass I were paid on a commission basis under Plan A. However, as Wave Comm did not track its employees' actual hours worked between April 2006 and September 27, 2009, the retail or service establishment exemption cannot be applied for those weeks as the defendant cannot establish that members of Subclass I were compensated at a rate of at least one and one-half times the minimum wage for each week worked during that period. For the pay periods including September 28, 2009 and onward, when Wave Comm required installers to track and submit actual hours worked, Wave Comm satisfied the final prong of the exemption only in those weeks in which members of Subclass I were compensated at a rate of one and one-half times the minimum wage as identified in defendants' Exhibit U. Defendants are entitled to the retail or service establishment exemption only for those weeks and are therefore exempted from the overtime requirement provisions of the FLSA for those weeks. Defendants are not entitled to the exemption for the NYLL class members at this time because they have not put forth any evidence to show they can meet the third prong of the exemption. D. Compensation Plan B In addition to claiming that defendants did not properly compensate them for overtime under Plan A, members of Subclass II claim that they performed additional work for which they received no compensation under Plan B— namely work during lunch periods and work at the end of a work day. They also argue that Plan B's weighted halftime formula did not comply with the law. 1. Plan B's Weighted Halftime Formula Plaintiff contends that members of Subclass II were not properly compensated for overtime work under Plan B from March 2010 to April 2011. Defendants concede that for the first pay period in which Plan B was in effect, ending April 2, 2010, Wave Comm failed to properly calculate overtime pay for ten installers who were entitled to additional wages. In that pay period, Wave Comm admits that it improperly failed to include the value of performance incentives when it calculated the value of weighted halftime. However, it argues that during every subsequent pay period *447 in which Plan B was utilized, members of Subclass II were properly compensated because Plan B complied with the FLSA and the NYLL as a matter of law. Plaintiff relies largely on Walling v. Youngerman–Reynolds Hardwood Co. to support his contention that Plan B violated the FLSA and the NYLL. 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945). In that case, an employer entered into a contract with its employees under which employees were paid $0.35 per hour and $0.525 per overtime hour worked. Id. at 423, 65 S.Ct. 1242. However, workers could earn more based on a piece rate compensation system under which they were paid according to the amount of work completed in an hour. Id. at 422, 65 S.Ct. 1242. Employees earned more under the piece rate system and were paid an average of $0.59 per hour. Id. at 425, 65 S.Ct. 1242. The employer attempted to manipulate the provisions of the FLSA by setting an artificially low base compensation rate, and then compensated employees under the piece rate system so that employees were effectively paid $0.59 for every hour worked, regardless of whether overtime work was performed. Id. at 426, 65 S.Ct. 1242. The Supreme Court held that overtime compensation must represent a 50% premium above the actual rate paid to employees under normal circumstances. Id. [17] In this case, Wave Comm's weighted halftime plan was designed specifically to avoid the issue presented in Walling, and to comply with DOL regulations which state: “Since the term regular rate is defined to include all remuneration for employment ... whether derived from hourly rates, piece rates, production bonuses or other sources, the overtime provisions of the act cannot be avoided by setting an artificially low hourly rate.” 29 C.F.R. § 778.500(a). An employee who performed work quickly, and thus would have earned more based on the previous piece rate compensation system, was paid a performance incentive based on the difference between the amount they were paid according to their hourly wage and the amount they would have earned under the prior piece rate compensation plan. This bonus was included in the calculation of premium overtime wages for each pay period in which the weighted halftime compensation plan was utilized, except for the first period—hence the term “weighted” to convey the fact that the value of overtime wages was calculated by including all income earned. For example: Hours: 51 Hourly Wage: $8.50 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 301 of 520 PageID 937 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 23 Performance Incentive: $384.80 An employee's regular rate of pay would be calculated as follows: (Hourly Wages + Performance Incentive) / Hours = Regular Rate (($8.50 x 51) + $384.80) / 51 = $16.05 Regular Rate Once the employee's regular rate was calculated, weighted halftime was calculated as follows: (Regular Rate x 0.5) x Overtime Hours = Weighted Halftime ($16.05 x 0.5) x 11 = $88.28 Weighted Halftime Then the employee's total wages were calculated as follows: Hourly Wages + Performance Incentive + Weighted Halftime = Total Wages ($8.50 x 51) + $384.80 + $88.28 = $906.58 Total Wages Contrary to plaintiff's assertion, the performance incentive was included in the regular rate computation for all but the first pay period in which Plan B was in effect. Plaintiff's suggested formula overcompensates installers by including the *448 regular rate of pay for all hours worked in addition to providing compensation for overtime hours worked at one and one-half times the regular rate of pay. See Defs.' Mem. in Opp'n to Pl.'s Mot. Summ. J. 5, ECF No. 125. This formula improperly compensates installers at two and one-half times the regular rate of pay for all hours over forty. Accordingly, the formula for Wave Comm's weighted halftime compensation plan did not violate the FLSA or the NYLL as a matter of law. 2. Unreported Hours Plaintiff further contends that Plan B violated the FLSA and the NYLL because installers were not paid for work during their unpaid lunch breaks and after their shift ended. Defendants contend this claim must be dismissed because they paid installers for all reported hours and relied upon representations made by members of Subclass II regarding the number of hours worked. [18] [19] “To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff must prove that he performed work for which he was not properly compensated, and that the employer had actual or constructive knowledge of that work.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir.2011). “Though Congress has never explicitly defined what constitutes work under the FLSA, the Supreme Court has generally described work as ‘physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.’ ” Singh v. City of N.Y., 524 F.3d 361, 367 (2d Cir.2008) (quoting Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944)). 19 “Activities that occur during an unpaid mealtime constitute work and must be compensated if those activities are undertaken ‘predominantly for the benefit of the employer.’ ” Sherald v. Embrace Technologies, Inc., No. 11 Civ. 939, 2013 WL 126355, at *6 (S.D.N.Y. Jan. 10, 2013) (quoting Reich v. S. New Eng. Telecoms. Corp., 121 F.3d 58, 64 (2d Cir.1997)). 19 The Supreme Court has recognized the continued vitality of its earlier description of the term “work” despite the passage of the Portal–to–Portal Act of 1947, 29 U.S.C. §§ 251–262 following Tennessee Coal, Iron & Railroad Co., 321 U.S. 590, 64 S.Ct. 698. See IBP, Inc. v. Alvarez, 546 U.S. 21, 28, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). [20] The determination of what qualifies as work “is necessarily fact-bound.” Reich, 121 F.3d at 64. “Moreover, a defendant is not entitled to summary judgment under the FLSA simply because the plaintiff has not precisely quantified the amount of uncompensated work he has performed, so long as a genuine issue of fact exists as to whether some uncompensated work was performed, defendant's knew of this work, and a reasonable basis exists for calculating the amount of that work.” Sherald, 2013 WL 126355, at *6 (citing Kuebel, 643 F.3d at 365). [21] Here, plaintiff claims that he and the other installers were not paid for work occurring during mealtimes and at the end of their shifts when installers completed billing sheets at home. Plaintiff testified to his performance of work during his mandated lunch break and there is evidence that Wave Comm was aware that installers completed billing sheets at home but were not WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 302 of 520 PageID 938 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 24 compensated for it. This testimony cannot be discounted on the present motion. Several installers including Johnson testified at their depositions that Wave Comm instructed installers to record that they *449 took daily, one-half-hour lunch breaks, even if they did not. Selander Aff., Jan. 31, 2013, Ex. 33, 161:22–162:11 (Johnson Dep.), ECF No. 125–37; Ex. 34, 73:9–17 (Romanowski Dep.), ECF No. 125–38; Ex. 38, 68:2–25 (Thayer Dep.), ECF No. 125–42. One of those installers testified that work assigned through the contract with Time Warner was assigned for two periods each day, 8:00 a.m. to 12:00 p.m. and 12:00 p.m. to 5:00 p.m., which did not leave time for a lunch, despite being told to record having taken one. Thayer Dep. 69:12–70:2. Defendants contend that they informed installers that in order for Wave Comm to comply with the law, installers had to stop working for thirty minutes for a meal. Further, because each member of Subclass II had control over the time sheet he submitted each day, defendants argue that installers had the ability to account for time spent working during their lunch and thus the ability to receive compensation for all work performed. Several installers testified that after they completed their last job for the day, they would go home and fill out their required billing sheets. Plaintiff claims that installers did not account for this time on their time sheets and were not paid for it. Defendants maintain that Wave Comm never instructed employees not to record time spent at the end of the day completing billing sheets and that there is no evidence to show that Wave Comm ever refused to compensate an employee for such work. Moreover, defendants argue that because installers had complete control over the content of their time sheets, they had the ability to enter any time they desired for the start and end of their work day. One opt-in plaintiff testified that he built additional time into his reported hours of work to account for the amount of time it took him to complete his billing sheets at the end of the work day and email them to Wave Comm, and he was paid for that time. Thayer Dep. 65:6–15. Defendants contend that they had no knowledge that installers were continuing to work beyond the time they recorded on their own time sheets. However, defendants admit that “the evidence may ultimately show that Wave Comm knew that installation technicians were completing required paperwork at home” but argue that Wave Comm never instructed installers not to record this time. Defs.' Mem. Supp. Summ. J. 30. This testimony could allow a reasonable jury to conclude that defendants were aware that employees worked through their lunch breaks and after their shifts to complete billing sheets without compensation. There are questions of fact which preclude a grant of summary judgment to defendants on plaintiff's unreported hours claim. If Wave Comm knew or had reason to believe that work was being performed and installers were not compensated, it must count the time as hours worked. Defendants have failed to establish as a matter of law that members of Subclass II are not entitled to wages for unreported hours worked during meal times and at home filling out billing sheets following installations. E. Individual Liability of Guillerault and Ruzzo Plaintiff moves for summary judgment on the issue of Guillerault and Ruzzo's individual liability with regards to Wave Comm's alleged overtime pay violations. In order to establish that Ruzzo and Guillerault are individually liable for Wave Comm's violations, plaintiff must demonstrate that they qualify as employers under the FLSA. [22] Employers are required to provide overtime payment to employees under the FLSA. 29 U.S.C. § 207(a)(1). An individual *450 is an employer, subject to liability, if they are a “person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). Although this determination is fact intensive, summary judgment remains appropriate when the evidence, viewed in the light most favorable to the defendant, establishes as a matter of law that the defendant is in fact an employer under the FLSA. See Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 143–44 (2d Cir.2008). “The Supreme Court has emphasized the expansiveness of the FLSA's definition of employer.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.1999) (internal quotations omitted) (citing Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973)). [23] In determining whether an individual is an employer under the FLSA, “the overarching concern is whether the alleged employer possessed the power to control the workers in question ... with an eye to the economic reality presented by the facts of each case.” Id. (internal citations omitted) (citing Goldberg v. Whitaker House Coop., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961)). The relevant factors in determining whether an individual is an WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 303 of 520 PageID 939 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 25 employer under the FLSA include “ ‘whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules, (3) determined the rate and method of payment, and (4) maintained employment records.’ ” Barfield, 537 F.3d at 142 (quoting Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir.1984)). No single factor is dispositive, and the test must be considered under the totality of the circumstances. Herman, 172 F.3d at 139. Financial control over the company can also be considered indicative of employer status. See id. at 140. [24] Guillerault and Ruzzo are the sole owners of Wave Comm. Defs.' Resp. to Pl.'s Statement of Mat. Facts ¶ 62. It is undisputed that they have financial control over the business and had the authority to dissolve Wave Comm and liquidate its assets. Id. ¶ 67. They are involved in decisions regarding the hiring and firing of employees and determine how frequently installers are paid and the method of payment. Id. ¶¶ 73, 82. Guillerault is responsible for Wave Comm's payroll and accounting and has reviewed employee timesheets. Id. ¶ ¶ 71, 72. Both Guillerault and Ruzzo receive complaints and compliments regarding the installers' work performance, and issue letters of counsel to installers regarding employment concerns. Id. ¶¶ 85, 86. Defendants fail to cite any issues of material fact that raise a question as to whether Guillerault and Ruzzo acted as employers under the FLSA. They assert that since there is evidence in the record that Wave Comm's general manager, Robert Coleman, “had a significant role in developing and implementing Wave Comm policies, including compensations plans, and made daily decisions with respect to Plaintiffs' and their work,” there is an issue of material fact concerning whether Guillerault and Ruzzo were employers under the FLSA. Defs.' Mem. in Opp'n to Pl.'s Mot. Summ. J. 30. The mere assertion that someone else may have been involved in determining company policies does nothing to refute the argument that Guillerault and Ruzzo were employers themselves. Defendants fail to address the uncontroverted facts which show that they are the sole owners of Wave Comm, having complete financial control over the business. They undisputably exercise significant control over the hiring and firing of employees, maintenance of employment records, and compensation of employees. *451 It is clear that Guillerault and Ruzzo act in the interest of an employer in relation to the employees of Wave Comm. They have failed to cite any evidence that would allow a reasonable finder of fact to determine that they are not employers liable under the FLSA as a matter of law. Accordingly, plaintiff is entitled to summary judgment on the issue of Guillerault and Ruzzo's individual liability. F. Unjust Enrichment Plaintiff and defendants both move for summary judgment with regards to defendants' unjust enrichment claim. Defendants claim that some installers have been unjustly enriched as they have retained tools provided by Wave Comm for use in the course of their employment and have had their payments for those tools returned to them by NYDOL. [25] Under New York law, a party claiming unjust enrichment must establish that (1) the other party was enriched, (2) at the first party's expense, and (3) equity and good conscience require restitution be paid to the first party. Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir.2004). “[T]he mere fact that [a] plaintiff's activities bestowed a benefit on the defendant is insufficient to establish a cause of action for unjust enrichment.” Law Offices of K.C. Okoli, P.C. v. BNB Bank, N.A., 481 Fed.Appx. 622, 627 (2d Cir.2012) (summary order) (quoting Clark v. Daby, 300 A.D.2d 732, 732, 751 N.Y.S.2d 622 (N.Y.App. Div.3d Dep't 2002)). [26] The assertion that plaintiff received a benefit as a result of defendants' actions is insufficient to support a claim of unjust enrichment by itself. Defendants state that “[p]laintiffs are absolutely correct that Wave Comm agreed to repay its technicians the amounts that were deducted from their wages instead of engaging in a prolonged legal dispute.” Defs.' Mem. in Opp'n to Pl.'s Mot. Summ. J. 28, 29. Defendants recognized that the wage deductions were unlawful and voluntarily stipulated to make repayments to NYDOL to avoid engaging in a legal dispute which could have been time consuming and costly. The assertion that some installers ultimately benefitted from those payments is not enough to show unjust enrichment. [27] “The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 304 of 520 PageID 940 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 26 sought to be recovered.” Paramount Film Distrib. Corp. v. State, 30 N.Y.2d 415, 421, 334 N.Y.S.2d 388, 285 N.E.2d 695 (1972) (internal citations omitted). “Generally, courts will look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant's conduct was tortious or fraudulent.” Id. (internal citations omitted). [28] Defendants here cannot show that equity and good conscience require the installers to return payments made to them by NYDOL as reimbursement for unlawful wage deductions made by Wave Comm in the first place. Although some installers still possess both the tools and the money that was deducted from their wages by Wave Comm to pay for those tools, they did not receive those benefits through any tortious or fraudulent conduct of their own. Moreover, defendants received the benefit of the installers' possession of the tools as the installers needed the tools to perform their job duties for Wave Comm. The installers were also not enriched through a mistake of fact or law. Defendants knew the installers would receive reimbursements from NYDOL as a result of the stipulation. The benefits *452 which they claim unjustly enriched the installers were conferred on the installers as a result of their own voluntary and self- interested conduct. It cannot be said that the installers have been unjustly enriched. Therefore, summary judgment on the unjust enrichment counterclaim will be granted as to plaintiff, denied as to defendants, and the counterclaim for unjust enrichment will be dismissed. V. CONCLUSION The claims of the opt-in plaintiffs are limited by the Fair Labor Standard Act's statute of limitations as identified in defendants' Exhibit W, subject to a determination of willfulness by the jury. With regard to the retail or service establishment exemption, Wave Comm established that 75% of its annual dollar volume of services are not resold, that it is recognized as a retail business within its industry, and that members of Subclass I were paid on a commission basis under Plan A. However, defendants can only satisfy the third requirement of the exemption for some of the pay periods including September 28, 2009 and onward for the FLSA class, when Wave Comm required installers to track and submit hours worked. The weeks in which defendants are entitled to the exemption are identified in defendants' Exhibit U. Plan B's compensation formula for members of Subclass II complied with the FLSA and NYLL, except as to the first pay period as conceded by defendants. However, there are questions of fact which must be resolved to determine if defendants are liable for wages not paid to the installers for unreported hours worked while completing billing sheets and during meal breaks. Next, Guillerault and Ruzzo are employers within the meaning of the FLSA and may be found individually liable for violations. Finally, defendants' counterclaim for unjust enrichment fails as a matter of law as the installers were not enriched through any unlawful, tortious, or fraudulent conduct of their own and this counterclaim must be dismissed. Therefore, it is ORDERED that 1. Defendants' motion for summary judgment is GRANTED in part and DENIED in part and plaintiff's motion for partial summary judgment is GRANTED in part and DENIED in part; 2. The opt-in plaintiffs' claims under the FLSA are time barred or limited as identified in defendants' Exhibit W, subject to a determination of willfulness by the jury; 3. Wave Comm GR LLC is entitled to the retail or service establishment exemption only in those weeks after September 28, 2009 in which members of FLSA Subclass I were compensated at a rate of one and one-half times the minimum wage as identified in defendants' Exhibit U; 4. Wave Comm GR LLC's formula for weighted halftime under Compensation Plan B complied with the Fair Labor Standards Act and New York Labor Law; 20 20 Except for the first pay period in which Compensation Plan B was utilized in which defendants concede ten installers' paychecks were calculated incorrectly. 5. Wave Comm GR LLC may be liable for unreported hours worked by installers; WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 305 of 520 PageID 941 Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 423 (2014) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 27 6. Robert Guillerault and Richard Ruzzo are employers under the FLSA and are therefore individually liable for any violations; and 7. Wave Comm GR LLC's counterclaim for unjust enrichment is DISMISSED. IT IS SO ORDERED. All Citations 4 F.Supp.3d 423 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 306 of 520 PageID 942 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Kidd v. DirecTV, LLC, C.D.Cal., November 2, 2017 2013 WL 6072966 United States District Court, M.D. Georgia, Macon Division. Keith JONES et al., Plaintiffs, v. TUCKER COMMUNICATIONS, INC., and Timothy Tucker, Defendants. Civil Action No. 5:11–CV–398 (MTT). | Nov. 18, 2013. Attorneys and Law Firms David E. Schlesinger, Matthew H. Morgan, Reena I. Desai, Minneapolis, MN, John Thomas Sparks, Atlanta, GA, for Plaintiffs. Alyssa K. Peters, William M. Clifton, III, Macon, GA, Christopher M. Pardo, Ellen C. Kearns, Boston, MA, for Defendants. ORDER MARC T. TREADWELL, District Judge. *1 In this action, the Plaintiffs seek overtime compensation for hours worked in excess of 40 hours per week pursuant to the Fair Labor Standards Act (“FLSA”). The Plaintiffs have moved for summary judgment (Doc. 80), and the Defendants have moved for summary judgment (Doc. 96), to dismiss the claims of 136 of the 146 opt-in plaintiffs (Doc. 115), and to decertify the conditionally certified collective action (Doc. 116). For the following reasons, the Plaintiffs' motion for summary judgment is DENIED, the Defendants' motion for summary judgment is GRANTED, and the Defendants' motions to dismiss and for decertification are DENIED as moot. I. FACTUAL AND PROCEDURAL BACKGROUND 1 1 The Parties do not dispute these facts unless otherwise indicated. Since its inception in 2002, Defendant Tucker Communications (“Tucker”) has been providing services for Charter Communications. (Doc. 83–11 at 6:6–8, 13:18–14:2). These services include repairing, installing, disconnecting, or changing the service for Charter customers' cable, internet, and telephone services. 2 (Doc. 83–11 at 68:13–17, 71:19–72:13). The work Tucker performs for Charter is done pursuant to a Master Contractor Agreement, which specifies the amount Charter pays Tucker for different services. (Doc. 104 at 9:21–10:1, 11:25–12:11). Charter pays Tucker according to this fee schedule as long as Tucker's cable installation technicians meet certain performance standards. (Docs. 83–11 at 119:20–120:8; 104 at 13:4–19, 14:5–15:17; 114 at ¶ 6). 2 Charter is Tucker's primary customer, though it provides these services to another cable company to a much lesser extent. (Docs. 83–11 at 13:21–24; 104 at 10:22–11:6). After Charter customers contact Charter to have their cable service repaired or a new system installed, Charter informs Tucker, and Tucker sends a cable installation technician to perform the work. (Doc. 114 at ¶ 5). Although Charter decides which technicians get job assignments, Tucker can reassign jobs based on the availability of technicians. (Doc. 83–11 at 88:13–89:4). Technicians also have the opportunity to sell additional Charter services to Charter customers while on job assignments. (Doc. 114 at ¶ 8). Technicians typically begin the day at their assigned office and load any supplies they may need for the day into their vehicles. (Docs. 83–11 at 80:22–81:2, 81:12–14; 113 at ¶ 3). After checking their PDAs for their first job assignment, technicians set an estimated time of arrival (“ETA”) to trigger a call to the customer. (Doc. 83–11 at 81:16–82:8). Technicians record the start time of the job on their PDAs once they are on location. (Docs. 83–11 at 83:5–10; 113 at ¶ 5). After a job is completed, technicians input the codes for the work performed and close out the job on their PDAs. If there is another job assigned, they set an ETA for the next job. (Docs. 83–11 at 93:6–11, 94:8–19; 113 at ¶¶ 5–6). If technicians have no other jobs assigned or if there is a time gap between jobs, they can select “available” on WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 307 of 520 PageID 943 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 their PDAs, and a Tucker dispatcher will notify them of jobs that become available during the day. (Doc. 83–11 at 96:22–98:21). Alternatively, technicians may enter “at lunch,” “on break,” or “not available,” in which case they will not be called for additional jobs. (Docs. 83–11 at 97:15–19; 113 at ¶ 7). *2 Technicians are paid a set amount for each type of service performed, and Defendant Tim Tucker, Tucker's President and Chief Executive Officer, determines this amount. (Docs. 83–11 at 20:17–21:3; 104 at 44:6–45:25; 114 at ¶ 7). The Parties dispute whether Tim Tucker decides what technicians are paid based solely on his experience in the industry or whether he correlates their pay based on the amount Charter pays Tucker for each service. 3 The Parties also dispute whether the amount technicians are paid generally represents a specified percentage of the amount Charter pays Tucker for each service. 4 If Tucker's technicians sell additional Charter products or services, they receive the entire amount Charter pays Tucker per the contract, and Tucker receives only an administrative fee. (Doc. 83–11 at 51:22–53:2). At the end of each week, technicians submit weekly pricing sheets and summaries of services performed during the week to be processed for payment. (Doc. 83–11 at 46:4– 47:9). 3 In Tim Tucker's first deposition, he stated, “I paid them based on the industry standard that I was accustomed to, the same way that I had received my pay.” (Doc. 83–11 at 16:21–23). In that same deposition he responded similarly to questioning: Q: But in terms of having discussions with anybody else in the industry, you didn't-your- your experience, as I understand it-your decision to pay them piece rate was based on your own personal experience in the industry? A: Yes. (Doc. 83–11 at 31:15–20). In his second deposition, Tim Tucker stated, “And like I told in the past, our typical pay percentage is 60/40, basically.” (Doc. 104 at 59:3–4). He stated in his declaration he pays technicians based on “industry standards” and he “decide[s] the percentage of the fee that the cable installation technicians receive based on the amount Tucker Communications, Inc. receives from Charter and my knowledge of how long a particular service will take to perform.” (Doc. 114 at ¶ 7). While not relevant to the disposition of this case, the Court observes that paying based on “industry standard” and paying based on a percentage the cable company pays are not mutually exclusive, and indeed, could be one and the same. 4 The Parties made charts comparing the amount technicians are paid per service to the amount Charter pays Tucker per service. Not surprisingly, the examples chosen by the Defendants generally show a uniform percentage, while the examples chosen by the Plaintiffs show greater variation. The named Plaintiff, a cable installation technician employed by Tucker, brought this FLSA collective action on behalf of himself and others similarly situated to recover unpaid overtime compensation pursuant to 29 U.S.C. § 207. The collective class was conditionally certified based on a joint stipulation. (Doc. 26). The Plaintiffs have moved for summary judgment, requesting the Court to find: 1) the retail or service establishment exemption to the FLSA's overtime requirement does not apply, 2) the outside sales exemption does not apply, 3) Tim Tucker is also liable to the Plaintiffs because he is an “employer” for purposes of the FLSA, and 4) the Plaintiffs are entitled to liquidated damages as a matter of law. The Defendants also moved for summary judgment on the applicability of the retail or service establishment exemption to Tucker. Alternatively, the Defendants moved to decertify the collective action and to dismiss the claims of 136 of the 146 opt-in Plaintiffs. II. DISCUSSION A. Summary Judgment Standard Summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material facts and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “A factual dispute is genuine only if ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir.1991)). The burden rests with the moving party to prove that no genuine issue of material fact exists. Info. Sys. & Networks Corp., 281 F.3d at 1224. The party may support its assertion that a fact is undisputed by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 308 of 520 PageID 944 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). *3 “If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment.” Anthony v. Anthony, 642 F.Supp.2d 1366, 1371 (S.D.Fla.2009) (citing Four Parcels of Real Prop., 941 F.2d at 1438). The moving party must carry its burden by presenting “credible evidence” affirmatively showing that, “on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party.” Four Parcels of Real Prop., 941 F.2d at 1438. In other words, the moving party's evidence must be so credible that, if not controverted at trial, the party would be entitled to a directed verdict. Id. “If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, ‘comes[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.’ ” Id. (quoting Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991)) (alteration in original). However, “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non- movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the Court “ ‘can only grant summary judgment if everything in the record demonstrates that no genuine issue of material fact exists.’ ” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir.2012) (quoting Tippens v. Celotex Corp., 805 F.2d 940, 952 (11th Cir.1986)). In contrast, “[w]hen the nonmoving party has the burden of proof at trial, the moving party is not required to ‘support its motion with affidavits or other similar material negating the opponent's claim.’ ” Four Parcels of Real Prop., 941 F.2d at 1437 (quoting Celotex Corp. v. Cartrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party “simply may show ... that there is an absence of evidence to support the nonmoving party's case.” Id. at 1438 (internal quotation marks and citation omitted). “Assuming the moving party has met its burden, the non-movant must then show a genuine dispute regarding any issue for which it will bear the burden of proof at trial.” Info. Sys. & Networks Corp., 281 F.3d at 1224–25 (citing Celotex Corp., 477 U.S. at 324). The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion. See Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir.2005). “Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (internal quotation marks and citation omitted). The Court will consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. See Am. Bankers Ins. Grp., 408 F.3d at 1331. B. Section 207(i) Exemption *4 Pursuant to the FLSA, employers are required to pay employees overtime compensation for hours worked in excess of 40 hours per week at a rate not less than one and one-half times the employees' regular rate unless an exemption applies. 29 U.S.C. § 207(a)(1). The Parties have cross-moved for summary judgment on the applicability of the exemption for commissioned employees of retail or service establishments found in 29 U.S.C. § 207(i), which provides, No employer shall be deemed to have violated subsection (a) of this section by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 309 of 520 PageID 945 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 The retail or service establishment exemption has three requirements: 1) the employer must be a “retail or service establishment,” 2) the employees' regular rate of pay must be one and one-half times the minimum wage, and 3) more than half of the employees' compensation for the representative period must represent commissions. Because the Plaintiffs are not contesting the second element, only the first and third elements are at issue. The employer bears the burden of proving the applicability of an FLSA exemption by “clear and affirmative evidence.” Birdwell v. City of Gadsden, 970 F.2d 802, 805 (11th Cir.1992) (internal quotation marks and citation omitted). “Exemptions from the overtime provisions of section 207 are to be narrowly construed against the employer.” Id. Additionally, exemptions are “to be applied only to those clearly and unmistakably within the terms and spirit of the exemption.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1269 (11th Cir.2008) (internal quotation marks and citations omitted). The Parties agreed at oral argument that “clear and affirmative evidence” imposes a heightened burden on the employer, requiring proof by more than a preponderance of the evidence, but the Court is not sure this is correct. The Eleventh Circuit has not addressed the issue, but other circuits have determined there is no heightened evidentiary burden on the employer. See Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1158 (10th Cir.2012) ( “In sum then, just as some courts have mistakenly viewed ‘clear and affirmative evidence’ as a heightened evidentiary standard, the same is true with the phrase ‘plainly and unmistakably.’ ”); Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501–02 (6th Cir.2007) (“[W]e have now made it clear that the employer claiming an FLSA exemption does not bear any heightened evidentiary burden”); Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505, 508 (7th Cir.2007). Whether heightened or not, the Court concludes that Tucker has met its burden of proving that the retail or service establishment exemption applies. 1. Retail or Service Establishment *5 A “retail or service establishment” is defined as “an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” 29 C.F.R. § 779.411. Though this definition originates from § 13(a)(2) of the FLSA, which was repealed in 1989, the Department of Labor and the courts are in agreement this definition is still operative. See 29 C.F.R. § 779.24; see also Reich v. Delcorp, Inc., 3 F.3d 1181, 1183 (8th Cir.1993); Russell v. Promove, LLC, 2009 WL 1285885 at *3 (N.D.Ga.); English v. Ecolab, Inc., 2008 WL 878456 at *2 (S.D.N.Y.). The Parties do not dispute the nature of Tucker's business. Instead, they disagree on the legal conclusions to be drawn from the undisputed facts. a. Sales Not for Resale DOL regulations define sales for resale as those in which “the seller knows or has reasonable cause to believe that the goods or services will be resold, whether in their original form, or in an altered form, or as part, component, or ingredient of another article.” 29 C.F.R. § 779.331. Further, [I]n certain circumstances, sales of services to a business for a specific use in performing a different service which such business renders to its own customers are in economic effect sales for resale as a part of the service that the purchaser in turn sells to his customers, even though such services are consumed in the process of performance of the latter service. 29 C.F.R. § 779.334. The Plaintiffs contend Tucker's services are resold because Tucker sells its services to Charter, which then uses them to provide services to its own customers. They further argue Tucker's services are analogous to mothproofing services used by a storage establishment to provide satisfactory storage to its customers, an example of a service for resale provided in § 779.334. 5 On the other hand, the Defendants argue Tucker's services are not resold because it provides them directly to the general public, and the fees paid by the end users are passed along to Tucker through Charter only as a matter of convenience. The Defendants rely on Owopetu v. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 310 of 520 PageID 946 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Nationwide CATV Auditing Services, Inc., 2011 WL 883703 (D.Vt.) [Owopetu I ], 6 where the court found the services of a cable installation business virtually identical to the one at issue in this case were not being resold: 5 The regulation also includes other examples of services constituting sales for resale, such as “an establishment [that] reconditions and repairs watches for retail jewelers who resell the services to their own customers ... [and] a garage [that] repairs automobiles for a secondhand automobile dealer with the knowledge or reasonable cause to believe that the automobile on which the work is performed will be sold....” 29 C.F.R. § 779.334. The mothproofing example is the only one in which the service provided is resold as part of the provision of another service. 6 There are two Owopetu decisions because the court initially determined not enough evidence was in the record for it to determine whether all elements of the retail or service establishment exemption were met. Nationwide's provision of cable installation and repair services to TWC customers does not constitute “sales for resale” because there is no subsequent sale, that is, no “selling again,” after the services are provided. Instead, the customers to whom Nationwide directly provides its services are “at the very end of the stream of distribution,” and therefore Nationwide “provides ... its repair services ... for the comfort and convenience of [the general] public in the course of its daily living,” as opposed to providing them for redistribution. *6 Id. at *7 (quoting 29 C.F.R. § 779.318(a)). As an initial matter, there is no indication Tucker has reason to believe its services will be sold again. Tucker provides its services directly to the end consumer who contracts with Charter for monthly cable or internet service. As noted in Owopetu I, there is no subsequent sale once the services are provided. Id. 7 Further, the very regulations the Plaintiffs rely on support finding the Defendants' services are not resold. In no sense are the services Tucker provides consumed in the process of Charter providing services for its customers. Unlike the mothproofing example in § 779.334, Tucker's provision of repair and installation services is not a mere enhancement of Charter's provision of monthly cable and internet services; it is a discrete and necessary component. Without Tucker's technicians installing the necessary equipment or repairing deficient equipment, Charter customers would not have access to their monthly services. 7 The Defendants focus on the fact that in Owopetu I there was no evidence the cable company charged its customers for the installation service. However, the Plaintiffs point to a sample bill found on Charter's website showing installation fees as a separate charge, to which the Defendants have not objected. (Doc. 129–1 at 5). Though the Court does not find this to be determinative, the separate installation charge actually enhances the Defendants' position because it helps demonstrate the services Tucker performs are distinct and not “consumed in the process” of Charter performing its own services. Nor are the services Tucker provides analogous to the other examples of services for resale provided in § 779.334. The installation does not become part of the product sold by Charter as a repaired watch for a jeweler or a repaired automobile for a secondhand car dealer does but remains a discrete part of the transaction which Tucker provides directly to the end user. 8 Therefore, the services Tucker provides are not “sales for resale.” 8 The Plaintiffs also contend Tucker's services are for resale because they are analogous to an example in the Wage and Hour Division of the Department of Labor's Field Operations Handbook: a television service company performing repair services for home users through a contract it has with a television dealer. Department of Labor, Wage & Hour Division Field Operations Handbook § 21ct00(c). The Handbook further provides the television service company's repair services would not be considered for resale if the contract was between the television service company and the home user, even if “obtained ... through the efforts of the television dealers.” Id. at § 21ct00(b). While this Handbook may provide guidance to courts, it is not entitled to Chevron deference. Klinedinst v. Swift Invs., 260 F.3d 1251, 1255, 1255n.3 (11th Cir.2001). The Court does not find this example persuasive. The same service is being provided to the same end user in both scenarios. Additionally, the television dealer procures the contract in both scenarios-the outcome turns solely on whose name is on the contract the home user signs. b. Sale or Services Recognized as Retail in the Particular Industry Though the second component of the retail or service establishment definition requires 75% of a business's annual dollar volume of sales be recognized as retail sales WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 311 of 520 PageID 947 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 or services in the particular industry, a business must have a “ ‘retail concept’ ... before the industry characterization of its sales can be considered.' ” Brennan v. Great Am. Disc. & Credit Co., 477 F.2d 292, 295 (5th Cir.1973); 9 see also 29 C.F.R. §§ 779.316, 779.322. “Determination of whether a business fits the retail concept is not without difficulty.” Great Am. Disc. & Credit Co., 477 F.2d at 296. “[A] ‘retail concept’ cannot be artificially created in an industry in which there is no traditional concept of retail selling or servicing.” 29 C.F.R. § 779.316; see also Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 199–201, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966) (explaining industry usage of the term “retail” is not controlling). 9 The Eleventh Circuit has adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). The characteristics of a retail or service establishment in 29 C.F.R. § 779.318(a) help define this “retail concept:” Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the Nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing process.... It provides the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living. *7 It seems beyond doubt that if Charter employees were providing these services to their customers, in addition to providing them with monthly cable and internet services, Charter would be selling the services to the general public, serving the everyday needs of the community, and performing a function at the very end of the stream of distribution. The Plaintiffs contend Tucker's status as subcontractor for Charter prevents it from meeting these characteristics because it serves Charter, as opposed to the general public. However, as the Defendants note, courts have found a party's status as a subcontractor does not alter the retail nature of its business. See., e.g., Owopetu v. Nationwide CA TV Auditing Servs., Inc., 2011 WL 4433159 at *6 (D.Vt.) [Owopetu II] (“Nationwide's relationship [as subcontractor for] TWC does not preclude a finding that Nationwide's services are retail.”); Schultz v. Crotty Bros. Dallas, Inc., 304 F.Supp. 191, 192, 195–96 (W.D.Tex.1969) (finding a food service operation contracting with a school to provide meals for its students was a retail establishment); Wirtz v. Campus Chefs Inc., 303 F.Supp. 1112, 1118–19 (N.D.Ga.1968) (finding identical food service business exempt). The Plaintiffs have not directed the Court to any cases holding businesses cannot qualify for the retail or service establishment exemption solely based on their status as subcontractors, and the Court has not found any. This is not surprising; the focus here is on the nature of the services, not the arrangement between the providers of the services. 10 10 It is also not surprising to the Court that in several cases the “retail concept” of businesses nearly identical to Tucker's has not even been at issue. See Moore v. Advanced Cable Contractors, Inc., 2013 WL 3991966 at *3 (N.D.Ga.) (“Defendants assert, and Plaintiffs do not dispute, that Advanced Cable is a retail and service establishment for purposes of the FLSA.”); Owopetu II, 2011 WL 4433159 at *4 (“[The plaintiff] does not dispute that the industry of servicing, installing and repairing cable and broadband equipment has a ‘retail concept.’ ”); Horn v. Digital Cable & Commc'ns, Inc., 2009 WL 4042407 at *4 (N.D.Ohio) (noting defendant cable installation company put forth undisputed evidence that it qualified as a retail or service establishment); see also Gruchy v. DirectTech Del., Inc., 2010 WL 3835007 at *2 (D.Mass.) (noting there was no dispute that company who performed similar services for a satellite television provider was a retail or service establishment). Moreover, the fact that Charter might be considered Tucker's customer does not mean that Tucker does not have the characteristics of a retail or service establishment. First, “the regulations recognize ... the provision of goods WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 312 of 520 PageID 948 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 and services to commercial customers does not necessarily prevent an establishment from qualifying as a retail or service establishment.” Kelly v. A1 Tech., 2010 WL 1541585 at *12 (S.D.N.Y.) (citing 29 C.F.R. § 779.318(b)); see also Alvarado v. Corporate Cleaning Serv., Inc., 719 F.Supp.2d 935, 944 (N.D.Ill.2010). Tucker can still qualify as a retail or service establishment “even if most of its consumers are businesses, if its sales are not for resale and are recognized in the industry as retail.” Collins v. Horizon Training Ctrs., LP, 2003 WL 22388448 at *7 (N.D.Tex.) (citing Mitchell v. Ky. Fin. Co., 539 U.S. 290, 294 (1959)). The Court has already determined Tucker's sales are not for resale, and the industry characterization of its sales is discussed below. In addition, Tucker, even though it contracts with Charter, directly provides its repair and installation services to the end users-the cable and internet service consumers. Thus, Tucker operates at the end of the stream of distribution and serves the everyday needs of the community. See Alvarado, 719 F.Supp.2d at 944 (finding the ultimate consumers of the defendant's window washing services were the buildings' tenants and residents even though the buildings were the defendant's customers); Schwind v. EW & Assocs., 371 F.Supp.2d 560, 566 (S.D.N.Y.2005) (finding the fact that the defendant provided computer training services to both its business clients and its clients' customers immaterial because in both cases the defendant was providing a service to the end customer). *8 The Plaintiffs contend Tucker does not meet the everyday needs of the community because “[t]he general public's needs are cable television, telephone, or internet services,” and Tucker merely provides repair and installation for companies that provide these services to the general public. (Doc. 81 at 8). However, DOL regulations describe a retail or service establishment in part as “provid[ing] the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living.” 29 C.F.R. § 779.318. This describes precisely what Tucker does. It provides installation and repair services to the general public-cable and internet users-for their comfort and convenience. Certainly both the provision of internet and cable services and the necessary installation and repair of these services meet the everyday needs of the community. This is especially true given the partial list of retail or service establishments contained in the regulations, which includes automobile repair shops, fur repair and storage shops, and piano tuning establishments. See 29 C.F.R. § 779.320. If fur repair and piano tuning meet the everyday needs of the community, surely cable installation and repair does as well. Cf. Reich v. Cruises Only, Inc., 1997 WL 1507504 at *4 (M.D.Fla.) (finding a business that helps customers select cruise services meets the everyday needs of the community in part because of the examples contained in the regulations). 11 11 The Plaintiffs also characterize Tucker's business as construction, which lacks a retail concept. See 29 C.F.R. § 779 .321(c). However, the sources the Plaintiffs cite are the Standard Industrial Classification System, the North American Industrial Classification System, and a DOL investigator's report finding a business like Tucker was properly characterized as construction based largely on the NAICS classification. (Docs. 83–1; 83–7; 83–8). Because of the vastly different concerns and focuses of these classification systems and the FLSA's overtime provisions, the SIC and NAICS's classification of “cable television hookup contractors” as part of the construction industry has little relevance in the FLSA context. The purpose of the SIC is to collect and analyze economic data, and the NAICS was later implemented to replace the SIC. See Cal. Sportfishing Prot. Alliance v. Shamrock Materials, Inc., 2011 WL 5223086 at *7 (N.D.Cal.) (quoting Office of Management and Budget, Standard Industrial Classification Manual (1987)); Ceres Envtl. Servs., Inc., v. United States, 52 Fed. Cl. 23, 34 (2002). In contrast, the purpose of the FLSA's overtime requirement is to “(1) spread out employment by placing financial pressure on the employer to hire additional workers rather than employ the same number of workers for longer hours; and (2) to compensate employees who for a variety of reasons worked overtime.” Klinedinst, 260 F.3d at 1256n.4. Finally, Tucker disposes of its services in small quantities and does not take part in the manufacturing process. Though the Plaintiffs characterize Tucker's services as wholesale, wholesale establishments generally “exclude the general consuming public as a matter of established business policy,” such as where “a purchaser contracts for the purchase of a large quantity of goods or services to be delivered or performed in smaller quantities or jobs from time to time as the occasion requires.” 29 C.F.R. § 779.328(a), (c). Three other district courts have determined the retail/wholesale distinction is inapplicable WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 313 of 520 PageID 949 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 to the § 207(i) exemption because “29 C .F.R. § 779.328 ‘dealt with the distinction [between retail and wholesale] as it related to the § 13(a)(2) exemption,’ an exemption that was ‘contingent on the size of the establishment and the types of transactions in which it engaged,’ ” and “ ‘[t]he retail/wholesale distinction does not serve the same purpose for the application of the § 7(i) exemption, which focuses on the employee's compensation rather than the employer's size or business plan....’ ” Alvarado, 719 F.Supp.2d at 945 (alterations in original) (quoting English, 2008 WL 878456 at *14, *3); see also Owopetu II 2011 WL 4433159 at *6 (reaching the same conclusion). 12 12 The Plaintiffs contend these courts are not giving proper deference to the DOL's regulations and cite Falken v. Glynn County for the proposition that all DOL regulations are entitled to Chevron deference. 197 F.3d 1341 (11th Cir.1999). Falken addressed the regulations relating to the overtime exemption in 29 U.S.C. § 207(k) for employees engaged in “fire protection activities.” Id. at 1345–46. However, as the court in English points out, the interpretive bulletin in which the regulations relevant to the retail or service establishment exemption are contained states Skidmore deference should apply. See 29 C.F.R. § 779.9 (citing Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). While the Court finds these cases persuasive, Tucker does not fit the characteristics of a wholesale establishment regardless of whether the retail/wholesale distinction is relevant to the § 207(i) exemption. Again, Tucker provides its services at the end of the stream of distribution, which is consistent with what the regulations characterize as a “retail” transaction and at odds with their characterization of a “wholesale” transaction. See 29 C.F.R. § 779.328(a) (“Typically, retail sales are made to the general consuming public. The sales are numerous and involve small quantities of goods or services. Wholesale establishments usually exclude the general consuming public as a matter of established business policy....”). *9 Because Tucker has a “retail concept,” the next inquiry is whether its services are recognized as retail within the particular industry. The relevant considerations are “the well-settled habits of business, traditional understanding and common knowledge.” 29 C .F.R. § 779.324. “These involve the understanding and knowledge of the purchaser as well as the seller, the wholesaler as well as the retailer, the employee as well as the employer, and private and governmental research and statistical organizations.” Id. The Defendants submitted the affidavit of Michael Dyer, the President and Chief Executive Officer of the Greater Macon Chamber of Commerce and the former Vice President and General Manager of Cox Communications in Macon, Georgia. (Doc. 111). Based on his experience in the cable industry, Dyer identified the following services cable installation companies perform that are considered “retail” in the industry: “the sale of cable installation services and equipment to individual consumers and the installation services performed by technicians by delivering, installing or servicing the equipment purchased or leased by the customer and activating or maintaining the customer's connection to the cable company's cable service.” (Doc. 111 at ¶ 4). In contrast, “laying or stringing cable to access a new housing development or an area previously not served by cable” and “mapping, drafting, and design services for new builds, overbuilds or upgrades” are services cable installation companies perform that are not considered “retail” in the industry. (Doc. 111 at ¶ 3). This is because “[s]uch services are for the direct benefit of the cable company, rather than for the comfort and convenience of the end user .” (Doc. 111 at ¶ 3). Additionally, the Defendants cite Owopetu II in support of finding Tucker's services are considered retail in the industry. The defendant in Owopetu submitted two affidavits showing services performed by a cable installation company were considered “retail” in the industry: the affidavit of the defendant's Corporate Office Manager, who was also a member of the Society of Cable Telecommunication Engineers and whose opinion is virtually identical to Dyer's, 13 and the affidavit of a certified professional vocational rehabilitation consultant who found the job of “service technician ... fall[s] within the generally-recognized and accepted definition of retail sales occupations.” Owopetu II, 2011 WL 4433159 at *5 (internal quotation marks and citation omitted). 13 The affiant [A]vers that Nationwide's service technicians, who are employed to “install and service cable television, telephone and broadband internet packages for customers of cable service providers such as ... [TWC],” are “employed in an enterprise that is recognized as retail in the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 314 of 520 PageID 950 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 industry.” [She] contrasted the services that Nationwide technicians provide with “laying or stringing cable to access a new housing development or an area previously not served by cable,” which is not recognized as retail. Owopetu II, 2011 WL 4433159 at *5 (internal citations omitted). The Plaintiffs criticize the basis of Dyer's opinion because he does not have knowledge of the FLSA and did not consult anyone else in the industry prior to giving his opinion. However, nothing in the regulations or the cases suggests those in the industry must consult either of those sources before giving their opinion. Further, because the regulations refer to the “well-settled habits of the business” and “common knowledge” as touchstones for whether services are considered “retail” in the industry, it would seem incongruous to require those giving their opinions to consult outside sources beforehand. See 29 C.F.R. § 779.324. Dyer's affidavit is also similar to evidence other courts have considered in determining whether a business's particular activities are considered “retail” within the industry. See, e.g., La Parne v. Monex Deposit Co., 714 F.Supp.2d 1035, 1042 (C.D.Cal.) (considering affidavits of former employees as well as an expert affidavit); Horizon Training Ctrs., 2003 WL 22388448 at *8 (considering an affidavit of the defendant's President). *10 The Plaintiffs also contend word-usage in the industry is not determinative of whether a business is recognized in the industry as “retail.” While they are correct, this is precisely the reason for determining whether a business has a “retail concept” before the industry characterization is considered. This does not mean the industry view is insignificant. As the former Fifth Circuit observed, “[a]lthough some legislators, in discussing the 1949 amendment to Section 13(a)(2), expressed concern that the amendment would permit each industry to decide for itself whether or not its sales were retail, it was pointed out that the only proper background for defining a retail or service establishment in a particular industry is the understanding of the people dealing in that industry as to what constitutes retail services or sales.” Acme Car & Truck Rentals, Inc. v. Hooper 331 F.2d 442, 446 (5th Cir.1964). 14 14 The 1949 amendments to § 13(a)(2) “overr[ode] the prior judicial determinations that retail sales were only those made to private consumers for their own personal use ... [and] provided that sales to businesses which were not sales for resale might qualify as retail sales.” Rachal v. Allen, 376 F.2d 999, 1003–04 (5th Cir.1967). The Parties do not dispute that Tucker's technicians install, service, and repair equipment for Charter's customers in connection with their cable, internet, and telephone services. (Doc. 83–11 at 68:13–17, 71:19– 72:13). Because these services fall within the category of services Dyer and the affiants in Owopetu II list as being considered retail, the Defendants have demonstrated Tucker's services are considered retail in the industry. Further, the Plaintiffs have not shown the existence of a triable issue of fact regarding the industry view. 15 15 For the first time at oral argument, the Plaintiffs urged the Court to consider the SIC and NAICS classification systems in determining whether Tucker's business is considered “retail” in the industry based on the language in 29 C.F.R. § 779.324 that the understanding of “private and governmental research and statistical organizations” is relevant. However, the Court finds these classification systems not helpful to the determination of whether Tucker's services are considered retail in the industry for the reasons discussed previously. See supra note 11. 2. More than 50% of Compensation Represents Commissions Whether a particular payment system constitutes commissions is an issue of law. Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.2001). As with most other aspects of this case, the Parties' disagreement is not with the relevant facts but rather with their proper legal characterization. The Plaintiffs contend Tucker's technicians are paid “piece rates,” whereas the Defendants maintain they are paid “commissions.” In Klinedinst, the Eleventh Circuit held a payment system where automobile painters were paid based on a predetermined number of “flag hours” multiplied by an hourly rate constituted commission-based payment because it “(1) provides workers with an incentive to work quickly, while (2) paying them at a rate that exceeds minimum wage.” 260 F.3d at 1256. While these “flag hours” were based on time estimates, employees received the same amount of compensation regardless of the actual time it took to complete the jobs. Id. at 1254. The court focused on how the payment system incentivized WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 315 of 520 PageID 951 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 employees “to work efficiently and effectively to the benefit of the employer, who may then take on more customers at a greater profit margin, and the employee, who reaps the benefits of increased flag hours regardless of the actual time worked.” Id. at 1256. Though each side contends Klinedinst supports its position, the Court finds Tucker's technicians are paid commissions. Tucker's compensation system is indistinguishable from that in Klinedinst in the most important respect: both are incentive-based. Because Tucker's technicians were paid a set amount per task, the length of time they took to complete jobs did not determine their compensation. It is also clear technicians had the opportunity to pick up additional jobs during the day by entering “available” on their PDAs, and the Parties do not dispute that technicians who complete many jobs during a given week can earn thousands of dollars, whereas technicians completing relatively few tasks in a week will earn considerably less. (Doc. 112 at ¶ 9). Additionally, in a recent case from the Northern District of Georgia, the court found that a compensation system almost identical to Tucker's constituted a commission- based system, declaring it “significantly similar” to the one at issue in Klinedinst. Moore v. Advanced Cable Contractors, Inc., 2013 WL 3991966 at *5 (N.D.Ga.). *11 The Plaintiffs argue technicians cannot earn more by working faster because Charter dictates the work, and there is a fixed amount of work. Even if this is true, technicians who have finished their assigned jobs will necessarily be able to get a greater share of the available work. The fact that jobs arise during the day and need to be assigned is not disputed. Further, the Court is unconvinced the pool of work is so “fixed” that Tucker would be unable to benefit from technicians being able to take on more jobs. The record shows Tucker competes with other cable installation companies for Charter's installation and repair needs, and the Plaintiffs have not disputed this. (Doc. 83–11 at 28:20–29:11). While, as noted above, the Parties disagree whether the amount of compensation technicians receive from Tucker generally represents a specific percentage of the amount Charter pays Tucker, this is not material. 16 The court in Moore found “[p]roportionality between an employees' wages and an employers' gains is an important part of a commission-based compensation system, but to say that any compensation system which does not pay an employee a direct percentage of their employers' gain is not commission-based is too narrow of a construction.” 2013 WL 3991966 at *5. 17 Indeed, Klinedinst focused on how the payment system incentivized employees to work more “efficiently and effectively,” making no mention of whether the amount paid to the employees was proportional to (let alone a direct percentage of) the amount charged to the customer. Thus, proportionality does not seem to be required for a payment plan to constitute commissions in the Eleventh Circuit. 16 Nor is it necessarily a fact since the Parties are simply interpreting the same underlying numerical data differently. 17 Nonetheless, the court ultimately concluded incentive-based compensation schemes, such as the one at issue in this case, are proportional to the amount received by the employer: The incentive of being paid a flat rate for work regardless of how long it takes presumably increases efficiency, which would increase the number of customers the employer can serve. This in turn increases the amount of work available to employees, so their prospective potential earnings are still proportional, although not as an exact percentage, to their employers' potential earnings. Moore, 2013 WL 3991966 at *5. The Plaintiffs place great weight on Tim Tucker's reference to technicians' compensation as “piece rate” throughout his deposition. Because the characterization of a particular payment method as commissions is an issue of law, the word Tim Tucker used to describe how Tucker's technicians are paid is irrelevant. Certainly the Plaintiffs would take issue if Tim Tucker said technicians were paid “commissions.” Further, allowing an employer to self-characterize its method of compensation in order to avoid paying overtime compensation would fly in the face of the purpose behind the FLSA. 18 18 In conjunction with their argument Tucker's business is properly characterized as construction, the Plaintiffs also contend several DOL press releases filed as exhibits show a unified DOL policy with respect to “numerous other installation companies that pay their employees piece rate.” (Docs. 136 at 8; 83–2 to 83–6). These press releases show certain companies have agreed to pay their employees back wages after DOL investigations (with one exception WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 316 of 520 PageID 952 Jones v. Tucker Communications, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 6072966, 164 Lab.Cas. P 36,180 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 where the DOL filed suit) but have only sparse details about the investigations themselves or the underlying facts. Further, two of the press releases involve misclassification of employees as independent contractors, which is a separate issue from an employer claiming the retail or service establishment exemption. Therefore, the Court finds they are not relevant to this case. Because the payment system at issue is similar to the ones in Klinedinst and Moore in that it incentivizes employees to work more efficiently and effectively to the benefit of both the employee and the employer, the Court finds the Defendants have shown this component of the retail or service establishment exemption is met. III. CONCLUSION The Court concludes the Defendants are exempt from paying overtime pursuant to 29 U.S.C. § 207(i). Therefore, it is unnecessary to determine the applicability of the outside sales exemption or whether Tim Tucker is an employer for purposes of the FLSA. Because there has been no violation of the FLSA overtime provisions, the Plaintiffs are not entitled to liquidated damages. *12 The Defendants' motion for summary judgment is GRANTED, and the Plaintiffs' motion for summary judgment is DENIED. Consequently, the Defendants' alternative motions for decertification and to dismiss 136 of the 146 opt-in plaintiffs are DENIED as moot. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 6072966, 164 Lab.Cas. P 36,180 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 317 of 520 PageID 953 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Disagreed With by Yi v. Sterling Collision Centers, Inc., 7th Cir.(Ill.), March 13, 2007 260 F.3d 1251 United States Court of Appeals, Eleventh Circuit. Tracy KLINEDINST, Plaintiff–Appellant, v. SWIFT INVESTMENTS, INC., a Florida corporation d.b.a. Fantastic Finishes of Palm Beach, Inc., Defendant–Appellee. No. 00–13092. | Aug. 6, 2001. Synopsis Former employee sued former employer for overtime pay under Fair Labor Standards Act (FLSA). Employer responded that employee's position of automobile painter was subject to exemption for commission workers. The United States District Court for the Southern District of Florida, No. 99-08913-CV-S H, Shelby Highsmith, J., entered summary judgment in favor of former employer. Former employee appealed. The Court of Appeals, Wilson, Circuit Judge, held that: (1) “flat rate” payments based upon “flag hours” derived from database utilized by auto repair shops and insurance adjusters, rather than upon actual hours required to complete a job, constituted “commissions,” and (2) District Court could not assume that painter never worked more hours than those for which he was paid under flat rate system. Vacated and remanded. Restani, Judge, concurred in part, dissented in part, and filed opinion. West Headnotes (8) [1] Labor and Employment Particular exemptions in general “Flat rate” payments to automobile painter employed by body shop, based upon “flag hours” derived from database utilized by auto repair shops and insurance adjusters rather than upon actual hours required to complete a job, constituted “commission” for purposes of FLSA exemption for commission workers. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i); 29 C.F.R. § 779.413(b). 20 Cases that cite this headnote [2] Labor and Employment Questions of Law or Fact Whether payments to employee constituted commissions for purposes of FLSA's commission exemption was issue of law. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). 19 Cases that cite this headnote [3] Labor and Employment Strict or liberal construction of exemptions Court of Appeals would undertake its duty to determine whether wage payment plans were in substantial compliance with FLSA by construing remedial statutory provisions both narrowly and sensibly. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). 7 Cases that cite this headnote [4] Labor and Employment Exemptions The employer bears the burden of proving the applicability of an FLSA exception by clear and affirmative evidence. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 53 Cases that cite this headnote [5] Administrative Law and Procedure Force of law An agency's internal directives to its employees are without the force of law. 1 Cases that cite this headnote Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 318 of 520 PageID 954 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 [6] Labor and Employment Exemptions Field operations handbook issued by Department of Labor was not entitled to Chevron deference in determining whether employee was subject to FLSA exemption. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 11 Cases that cite this headnote [7] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issues of material fact existed as to number of hours automobile painter actually worked in body shop, precluding summary judgment as to whether his regular rate of pay was in excess of one and one half times minimum wage, as required for application of commission exemption to FLSA's overtime requirements. Fair Labor Standards Act of 1938, § 7(i)(1), 29 U.S.C.A. § 207(i)(1); Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 53 Cases that cite this headnote [8] Labor and Employment Evidence In determining number of hours automobile painter actually worked in body shop, for purposes of determining whether his regular rate of pay was in excess of one and one half times minimum wage, as required for application of commission exemption to FLSA's overtime requirements, district court could not assume that painter never worked more hours than those for which he was paid under flat rate system, where painter and shop owner agreed that hours actually worked could have been greater or less than hours paid. Fair Labor Standards Act of 1938, § 7(i)(1), 29 U.S.C.A. § 207(i)(1); Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. 54 Cases that cite this headnote Attorneys and Law Firms *1252 Jennifer S. Carroll, Law Offices of Jennifer S. Carroll, P.A., West Palm Beach, FL, for Plaintiff– Appellant. Joseph L. Thillman, West Pam Beach, FL, for Defendant– Appellee. Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT and WILSON, Circuit Judges, and RESTANI * , Judge. * Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by designation. Opinion WILSON, Circuit Judge: Tracy Klinedinst appeals from the district court's grant of summary judgment in favor of his former employer, Swift Investments. *1253 Klinedinst sued Swift for failure to pay overtime in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et seq. The district court held that Klinedinst's position falls within an exemption to the Act for “commission” workers. Because the district court incorrectly determined that the exemption applies, we vacate its grant of summary judgment. I. BACKGROUND Swift operates an auto repair and body shop. Klinedinst was employed as an automobile painter for Swift. Klinedinst received a salary from Swift based on the number of “flag hours” worked in a forty-hour work week. 1 Klinedinst sued Swift for violating the Fair Labor Standards Act (FLSA). He alleges that between January 1, 1998 and December 31, 1998, he worked approximately two thousand overtime hours beyond his forty-hour work week and approximately one thousand additional overtime hours between January 1, 1999 and June 30, 1999. He contends that Swift did not compensate him for this overtime pursuant to the FLSA. Swift stipulated that Klinedinst was not paid overtime. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 319 of 520 PageID 955 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 1 Although the “Employee New Hire Sheet” (the equivalent to an employment contract) is not at issue in this dispute, it states that Swift intends for Klinedinst to work forty-hour weeks. For each repair job, Klinedinst was compensated according to a repair estimate. The labor portion of the estimate was calculated by multiplying the predetermined “flag hours” by the auto shop's hourly rate. The “flag hours” were derived from a database utilized by auto repair shops and insurance adjusters. Thus, they did not necessarily reflect the actual time spent completing a job. If more than or fewer than the predetermined number of flag hours were required to complete a job, Swift would nevertheless pay the painter for the predetermined number of hours even though he did not actually work that many hours. The hourly rate varied from $12 to $15 depending on the number of hours worked per week and the number of hours allotted to the paint labor component of the repair estimate. Klinedinst was compensated for each paint job he performed based on the following formula: the “flag hours” allotted to the paint labor component of the repair estimate was multiplied by his hourly rate. Swift did not maintain records of the actual hours that Klinedinst worked, and Klinedinst was paid for the maximum amount of flag hours, regardless of the actual hours worked. Both parties refer to this compensation method as a “flat rate” system. Klinedinst contends that although Swift applied this flat rate system, it deducted some of his predetermined flag hours and used them to compensate the detailers who worked on the cars after he painted them. Both parties filed motions for summary judgment. The district court granted Swift's motion for summary judgment and denied Klinedinst's motion. The district court concluded that the overtime exception applied because Klinedinst's compensation under the flat rate system constituted commissions on services which were exempt from the FLSA's requirement of overtime pay and because Klinedinst's rate never fell below twelve dollars per hour so he never earned less than one and a half times the minimum wage of five dollars and fifteen cents per hour. II. DISCUSSION Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment to Swift de novo. *1254 See Strickland v. Water Works & Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1203 (11th Cir.2001) (involving cross-motions for summary judgment). Generally, employers are required to pay employees overtime for hours worked in excess of forty hours per week. The FLSA provides in pertinent part: Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1). Swift contends that because Klinedinst worked on a commission basis and it met the overtime exemption requirements, it was not obligated to pay Klinedinst overtime. The district court agreed. We review to examine whether Swift met the statutory and regulatory requirements of the commission exemption. A. Did the payment system represent a commission? [1] [2] [3] The issue before us is whether the district court properly concluded that Swift met the commissioned work exemption to this provision. 2 Whether Klinedinst's payments constituted commissions is an issue of law. Yet, it is an issue that finds little illumination from the sparse case law and the vague references in statutes and regulations. Nonetheless, it is the duty of the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 320 of 520 PageID 956 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 courts to determine whether wage payment plans are in substantial compliance with FLSA. We undertake that duty by construing the remedial statutory provisions both narrowly and sensibly. See Walling v. A.H. Belo Corp., 316 U.S. 624, 634–35, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942); Brennan v. Valley Towing Co., Inc., 515 F.2d 100, 110 (9th Cir.1975); Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 805 (11th Cir.1992) (holding that FLSA provisions are interpreted liberally in the employee's favor and its exemptions construed narrowly against the employer). 2 The commissioned work exemption as written in 29 U.S.C. § 207(i) states: No employer shall be deemed to have violated [the overtime provisions of the Act] by employing any employee of a retail or service establishment for a workweek in excess of [40 hours], if (1) the regular rate of pay of such employee is in excess of one and one half times the minimum [wage], and (2) more than half of his compensation for a representative period (not less than one month) represents commissions on goods or services. [4] Swift, as the employer, bears the burden of proving the applicability of a FLSA exception by “ ‘clear and affirmative evidence.’ ” Birdwell, 970 F.2d at 805. Swift avers that the flat rate system it utilized is a form of commission, which is incentive-based and encourages efficiency and speed. Klinedinst was assigned an hourly rate (flag rate) for a particular task, but if it took longer than the allotted time, he would not be paid extra. If he completed the task sooner, however, he would keep the difference. For example, deposition testimony reveals that whether a technician took ten or thirty hours to complete a job, he would still be paid the same. Specifically, Swift determined Klinedinst's compensation per job by multiplying the predetermined flag hours by his hourly rate. He was to receive compensation under this formula regardless of whether he actually worked the predetermined flag hours. The flat rate of pay was not the hours of time it actually took the worker to complete a job. It is a method of providing *1255 employees with an incentive to “hustle” to finish their jobs in order to obtain a larger number of jobs for greater compensation. [5] To bolster the claim that the flat rate system constituted a commission, Swift cites to the Wage and Hour Division of the Department of Labor's Field Operations Handbook: Some auto service garages and car dealerships compensate mechanics and painters on the following basis: The painter or mechanic gets so much a “flat rate” hour for the work he or she performs. A “flat rate” hour is not an actual clock hour. The painter or mechanic may work only 7, 8 or 9 hours a day and still receive credit for 10, 11 or 12, etc., flat rate hours depending upon how much work he or she has done. Each job is assigned a certain number of hours for which the customer is charged, regardless of the actual time it takes to perform the job. The employee is given a certain proportion of that charge expressed in terms of so many dollars and cents per “flat rate” hour rather than in terms of a percentage of the charge to the customer. The dealer does not change the employee's share per flat rate hour if the charge to the customer is changed. In such situations Wage– Hour will not deny that such payments represent “commissions on goods or services” for purposes of Sec. 7(i) (see IB 778.117 and 779.413(b)). Such employment will qualify for exemption under Sec. 7(i) provided all the other tests of the exemption are met. Field Operations Handbook, Section 21h04(d). An agency's internal directives to its employees, however, are without the force of law. See Brennan v. Ace Hardware Corp., 495 F.2d 368, 376 (8th Cir.1974) (the Labor Department's Field Operations Handbook is without “the force and effect of law.”); Kirkland Masonry, Inc. v. C.I.R., 614 F.2d 532, 533 (5th Cir.1980) (“Although federal agencies are bound by their own regulations, a simple administrative directive to agency employees does not suffice to create a duty to the public”). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 321 of 520 PageID 957 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 [6] Although the Field Operations Handbook is not entitled to Chevron deference, 3 we find it persuasive. Further support for this interpretation of commission may be found in 29 C.F.R. § 779.413(b), which states: 3 See Chevron U.S.A., Inc. v. Natl. Resources Defense Council, Inc., 467 U.S. 837, 844–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron held that if a statute was ambiguous, the courts would defer to an agency's reasonable interpretation of that statute. Id.; Bank of America, N.A. v. FDIC, 244 F.3d 1309, 1314 (11th Cir.2001). Although typically in retail or service establishments commission payments are keyed to sales, the requirement of the exemption is that more than half the employee's compensation represent commissions “on goods or services,” which would include all types of commissions customarily based on the goods or services which the establishment sells, and not exclusively those measured by “sales” of these goods or services. See also Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1175 (7th Cir.1987) (“persons not engaged in the sale of goods—receivers, trustees, bailees, and others—are sometimes compensated in the form of what are commonly called commissions, and ... [may be considered] ‘commissions' within the meaning of 29 U.S.C. § 207(i) if the other requirements of the section are satisfied”); Black's Law Dictionary 264 (7th ed. 1999) (“Commission: ... 5. A fee paid to an agent or employee for a particular transaction, usu. As a percentage of the money received from the transaction”); Merriam–Webster's Collegiate Dictionary 231 (10th ed.1996) (same). *1256 The cumulative effect of these citations is persuasive because they support the basic conception of a commission without undermining the purpose or logic behind overtime. 4 The flat rate at issue (1) provides workers with an incentive to work quickly, while (2) paying them at a rate that exceeds minimum wage. The function of a commission exemption as embodied by section 7(i) is to ensure that workers who are paid on a commission basis are guaranteed to receive at least the legislated minimum wage without requiring them to work overtime for it. See 29 U.S.C. § 207(i). Payments of between $12 and $15 per flagged hour provide incentives for employees to work efficiently and effectively to the benefit of the employer, who may then take on more customers at a greater profit margin, and the employee, who reaps the benefits of increased flag hours regardless of the actual amount of hours worked. With this in mind, we conclude that Klinedinst's flat rate wages constitute a “commission” but are only exempt from overtime pay if Swift can establish that it has qualified for the overtime exemption provided in section 7(i). See Field Operations Handbook, Section 21h04(d). 4 The purpose of the FLSA-required overtime is two- fold: (1) to spread out employment by placing financial pressure on the employer to hire additional workers rather than employ the same number of workers for longer hours; and (2) to compensate employees who for a variety of reasons worked overtime. See H.R.Rep. No. 1452, 75th Cong., 1st Sess. (1937); S.Rep. No. 884, 75th Cong., 1st Sess. (1937); Donovan v. Brown Equipment and Service Tools, Inc., 666 F.2d 148, 152 (5th Cir.1982); Mechmet, 825 F.2d at 1175–76. Section 7(i) states: No employer shall be deemed to have violated [the overtime provisions of the Act] by employing any employee of a retail or service 5 establishment for a workweek in excess of [40 hours], if (1) the regular rate of pay of such employee is in excess of one and one half times the minimum [wage], and (2) more than half of his compensation for a representative period (not less than one month) represents commissions on goods or services. 5 Automobile repair shops have been explicitly recognized as retail establishments. See 29 C.F.R. § 779.320. 29 U.S.C. § 207(i). As it is undisputed that all of Klinedinst's wages were derived from the flat rate system and we have determined that the aforementioned system constitutes a commission, the second component of section 7(i) is fulfilled. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 322 of 520 PageID 958 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 B. What was the regular rate of pay? We next review whether Swift satisfied the first component of the exemption, which is the regular rate of pay. The “regular rate of pay” is the “hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed” and “by its very nature must reflect all payments which the parties had agreed shall be received regularly during the workweek, exclusive of overtime payments.” 29 C.F.R. § 779.419(b) (quoting Walling v. Youngerman–Reynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945)). The regular rate is determined by dividing the employer's total compensation during the workweek by the number of hours worked. See 29 C.F.R. § 779.419(b) (citing Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942)). [7] Swift states that Klinedinst's regular rate of pay was between $12 and $15 per hour. Assuming Klinedinst worked only forty hours per week, this represents at least double the then minimum wage of $5.15 per hour. See 29 U.S.C. § 206(a)(1). 6 *1257 However, both parties offer contradictory statements as to the number of hours Klinedinst actually worked and both at some point during the summary judgment proceedings admit that this disagreement forms the basis of an active factual dispute. Nonetheless, neither party kept records of the number of hours Klinedinst worked. Thus, neither we nor the district court can ascertain from the record developed to date Klinedinst's “regular rate” to compute his overtime compensation. Swift was obligated to “maintain and preserve” records of the “regular hourly rate of pay for any workweek in which overtime compensation is due under [§ 207(a) ].... ” 29 C.F.R. § 516.2(a)(6)(i). It was also obligated to maintain records of the “[h]ours worked each workday and total hours worked each workweek.” 29 C.F.R. § 516.2(a)(7). Swift failed to do so. The number of hours worked per week is a genuine issue of material fact for the factfinder. Cf. Valley Towing Co., 515 F.2d at 111– 112 (appellee failed to record applicable hourly rates or maintain records of both straight overtime hours worked and hours spent working on commission; on remand, the district judge was to order appellees to comply with the applicable record keeping requirements and determine overtime pay award since record was sufficient for this determination). As Klinedinst maintained that he worked at least 3000 hours more than the regular forty-hour week during his period of employment, this is still very much a live issue. 6 This reflects the minimum wage for the period of January 1998 to June 1999. [8] Therefore, the district court incorrectly concluded that Klinedinst's regular rate of pay never fell below twelve dollars per hour. In making this determination, the court improperly assumed that Klinedinst never worked more hours than the number of hours paid under the flat rate system. As both parties acknowledge, the number of hours Klinedinst actually worked did not necessarily equal the number of hours for which he was paid under the flat rate system and, in any given week, the number of hours actually worked could have been greater than or less than the number of flag rate hours for which Klinedinst was paid. See 29 C.F.R. § 778.117 (“Commissions (whether based on a percentage of total sales or of sales in excess of a specified amount, or on some other formula) are payments for hours worked and must be included in the regular rate. This is true regardless of whether the commission is the sole source of the employee's compensation or is paid in addition to a guaranteed salary or hourly rate, or on some other basis ...”). As a result, the assumption of a static forty-hour work week was error. Without knowing the regular rate of pay, we cannot determine whether it is greater than one and one half times the minimum wage. Hence, remaining factual inquiries preclude the legal determination of whether the section 207(i)(1) element of the overtime payment exception is satisfied. III. CONCLUSION Swift's flat rate system constitutes a form of commission payment. Klinedinst, however, is still entitled to overtime compensation pursuant to the FLSA unless Swift meets the exemption requirements of section 7(i) of the FLSA. Because there is not enough evidence in the record to determine whether Swift met the first component of the exemption requirement—the regular rate of pay—we find that the district court erred in granting summary judgment to Swift. Accordingly, the district court's order is VACATED and REMANDED for further proceedings consistent with this opinion. RESTANI, Judge, concurring in part, dissenting in part: WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 323 of 520 PageID 959 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 I concur in the majority's decision to vacate the district court's order and to *1258 remand for a determination of Klinedinst's regular rate of pay. I disagree, however, with the majority's conclusion that Swift's flat rate pay system results in “commissions” within the meaning of 29 U.S.C. § 207(i) (1994), so that the questions to be determined on remand are whether Klinedinst had any employment in excess of 40 hours per week and whether such work was compensated at one and one-half times the minimum wage. The majority acknowledges that the FLSA is a remedial statute which is to be construed against the employer, so that the employer must prove its entitlement to an FLSA exception by “clear and affirmative evidence.” Birdwell v. City of Gadsden, 970 F.2d 802, 805 (11th Cir.1992) (quoting Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir.1984)). The majority, however, applies an expansive definition of “commissions” in order to bring the method of pay at issue here within the exception set forth in § 207(i). It seems to accord any payment that is based on a percentage of the payment to the employer status as a “commission” payment. By any ordinary understanding of the meaning of commissions, the payments to Klinedinst are not commissions. Klinedinst does not generate sales or jobs for his employer. Rather, he is an ordinary wage-earning employee performing service work in an automobile garage. Not every method of payment which might encourage efficiency is a commission method. For example, piecework pay is not a commission. See 29 C.F.R. § 778.111(a) (2000) (overtime compensated at one and one- half piece rates). 1 Further, work in excess of forty hours per week is entitled to extra half-time pay if the worker is compensated by the day or by the job. 29 C.F.R. § 778.112. 1 A flat fee for cleaning used cars was found to be piece work. See Op. Ltr. FLSA–1042 (Dep't of Labor October 14, 1982). Although sales commissions are the most common form of commissions, there is no doubt that some other forms of payment representing a percentage of the value of goods or services are easily recognized as commissions. Indeed, in finding that banquet waiters earned “commissions” under § 207(i), the Seventh Circuit notes that some persons paid on a percentage basis, such as receivers, trustees, and bailees, are not engaged in generating sales and their compensation is commonly called “commissions.” Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1175 (7th Cir.1987). Nonetheless, because the meaning of “commissions” in § 207(i) is unclear and because it recognized that a simple dictionary definition could result in unintended loopholes, the Seventh Circuit carefully examined the purposes of the FLSA and the particular context of the banquet waiters' employment before recognizing an expansion of the usual categories of commission earners. Id. at 1175–77. An examination of the purposes of the FLSA indicates that Klinedinst's employment does not fit the exception. One purpose of the FLSA's time and a half provisions was to prevent workers from working abnormally long hours and thereby taking jobs away from workers who preferred more normal hours. Another purpose was to spread work to reduce unemployment. A third purpose was to protect workers from impairing their health or incurring more accidents from tiredness. See H.R.Rep. No. 75–1452, at 8–9 (1937); S.Rep. No. 75–884, at 3–5 (1937); Mechmet, 825 F.2d at 1175–76. Unlike the banquet workers in Mechmet, who worked irregular and nonhazardous jobs, where accidents due to tiredness *1259 may not be a large concern, automobile repair, including painting, can be hazardous, and there is nothing to suggest that this work does not result in regular employment. Further, banquets were found to be large ticket items, and the business was described as “feast or famine.” Mechmet, 825 F.2d at 1177. Reliable, long range estimation of the need for workers and the length of their hours was not possible. See id. This does not describe the case at hand. Swift has not shown that Klinedinst's type of employment is not exactly the type of employment that Congress intended be covered by the FLSA. Further, the majority, while recognizing that the Labor Department's Field Operations Handbook is not entitled to Chevron deference, nonetheless relies on it. The Labor Department appears somewhat at sea on the issue of commissions. 2 In an opinion letter regarding dancers who were compensated principally from a mandatory $5.00 charge per dance collected by the dancers for the club, the Labor Department stated that the charge was a flat fee not based on the value of the service and was therefore not a commission. 3 Op. Ltr. FLSA–1332 (Dep't of Labor Nov. 19, 1996). The Department also stated: 2 While 29 C.F.R. § 779.413(b), also relied upon by the majority, is entitled to deference, it does WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 324 of 520 PageID 960 Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (2001) 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 not define “commissions”; it merely recognizes that commissions may be based on either sales or services, as we acknowledge. 3 The letter is also entitled to deference only to the extent it has power to persuade. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). [29 U.S.C. § 207(i) ] is designed to exempt those employees who can increase their productivity, and hence, their earning, by applying their ingenuity, skill and experience to tasks which will vary in difficulty from job to job. These types of employees perform a service that has an identifiable monetary value to the customer, but the amount of time and effort required to complete the service and the complexity of the task performed may often vary from job to job. Id. Putting aside the fact that the dancers could actually generate profits for the employer by selling more dances, and consequently look more like commission earners than banquet waiters, there was no reliance in either the Field Operations Handbook or in this case on increase in productivity based on ingenuity, skill and experience. Labor's opinion letter seems to represent a narrow view of what constitutes a § 207(i) commission, perhaps based on its unwillingness to accord any value to the particular service at issue. On the other hand, the portions of Field Operations Handbook applicable to garage workers relied on by the majority presents an expansive view. Neither expression of Labor's position reflects persuasive reasoning. 4 4 See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) (“The weight of [an agency's] judgment will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all the factors which give it power to persuade, if lacking power to control.”). The FLSA accepts that the willingness of workers to contract for a particular method of payment is not controlling. Whatever one's view of the current efficacy of this 1937 remedial legislation, it is not our place or the Labor Department's to circumvent it by adopting a definition of commission not clearly intended by Congress. Because there is considerable doubt as to whether Congress intended a payment plan such as Swift's to qualify as a commission plan under § 207(i), I would *1260 hold that Swift has failed in its burden to demonstrate that it satisfies the exception to FLSA's time- and-a-half provisions. All Citations 260 F.3d 1251, 143 Lab.Cas. P 34,318, 7 Wage & Hour Cas.2d (BNA) 279, 14 Fla. L. Weekly Fed. C 1090 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 325 of 520 PageID 961 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Thomas v. Bob Mills Furniture Co, W.D.Tex., May 15, 2015 903 F.Supp.2d 1258 United States District Court, N.D. Alabama, Southern Division. Tom KUNTSMANN, on behalf of himself and all others similarly situated, Plaintiff, v. AARON RENTS, INC., Defendant. Case No. 2:08–CV01969–KOB. | Oct. 4, 2012. Synopsis Background: Retail employee brought collective action under Fair Labor Standards Act (FLSA) against employer, alleging failure to pay overtime wages. Employer moved for summary judgment. Holdings: The District Court, Karon Owen Bowdre, J., held that: [1] material fact issues existed regarding application of FLSA executive, administrative, and combination exceptions to employee's job duties; and [2] there was no evidence that employer's compensation scheme qualified as bona fide commission plan. Motion denied. West Headnotes (10) [1] Labor and Employment Managers, supervisors, etc An executive employee exempt from the FLSA overtime provisions must perform management duties, and those duties must be his primary duty. Fair Labor Standards Act of 1938, §§ 7(a)(1), 13(a)(1), 29 U.S.C.A. §§ 207(a) (1), 213(a)(1); 29 C.F.R. § 541.102. Cases that cite this headnote [2] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issues of material fact existed as to extent of employee's managerial duties, precluding summary judgment on issue of whether employee was executive employee exempt from FLSA overtime provisions in FLSA action against employer. Fair Labor Standards Act of 1938, §§ 7(a)(1), 13(a)(1), 29 U.S.C.A. §§ 207(a)(1), 213(a)(1); 29 C.F.R. § 541.102. Cases that cite this headnote [3] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issue of material fact existed as to extent of employee's independent judgment and discretion as a general manager, precluding summary judgment on issue of whether employee was administrative employee exempt from FLSA overtime provisions in FLSA action against employer. Fair Labor Standards Act of 1938, §§ 7(a)(1), 13(a)(1), 29 U.S.C.A. §§ 207(a)(1), 213(a)(1); 29 C.F.R. § 541.700. Cases that cite this headnote [4] Labor and Employment Definitions and tests of status in general An employee who meets some, but not all, of the elements of the executive and administrative exemptions to the FLSA overtime provisions still may qualify as exempt under the Department of Labor's (DOL) regulations; the combination exemption focuses solely on the employee's job duties. Fair Labor Standards Act of 1938, §§ 7(a)(1), 13(a)(1), 29 U.S.C.A. §§ 207(a)(1), 213(a)(1). Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 326 of 520 PageID 962 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 1 Cases that cite this headnote [5] Labor and Employment Definitions and tests of status in general The combination exemption to the FLSA overtime provisions provides a mechanism for cobbling together different exempt duties for purposes of meeting the primary-duty test. Fair Labor Standards Act of 1938, § 7(a)(1), 29 U.S.C.A. § 207(a)(1); 29 C.F.R. § 541.708. 1 Cases that cite this headnote [6] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issues of material fact existed as to whether employee's duties were managerial or administrative in nature, precluding summary judgment on issue of whether employee's duties qualified him as exempt from FLSA overtime provisions under combination exception in FLSA action against employer. Fair Labor Standards Act of 1938, § 7(a)(1), 29 U.S.C.A. § 207(a)(1); 29 C.F.R. § 541.708. Cases that cite this headnote [7] Labor and Employment Retail or service establishments Retail or service establishment exemption to FLSA overtime wage requirements was not affirmative defense that employer waived by not specifically pleading it in FLSA action by employee for overtime wages. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). Cases that cite this headnote [8] Labor and Employment Exemptions Labor and Employment Exemptions An employer bears the burden of proving the applicability of an FLSA exception by clear and affirmative evidence. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. Cases that cite this headnote [9] Labor and Employment Retail or service establishments In FLSA action against employer, retail employee's regular rate of pay exceeded one and one-half times minimum wage, as required to support application of retail or service establishment exemption to FLSA overtime wage requirements, where minimum wage during employee's time of employment was $5.85 per hour and employee was paid at rate of $17.63 per hour. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). 6 Cases that cite this headnote [10] Labor and Employment Retail or service establishments In general manager's FLSA action against retail employer, there was no evidence that employer's compensation scheme for general managers qualified as bona fide commission plan, as required to support application of retail or service establishment exemption to FLSA overtime wage requirements; manager's monthly salary was based on published rate and did not change based solely on his sales or store's sales alone. Fair Labor Standards Act of 1938, § 7(i), 29 U.S.C.A. § 207(i). Cases that cite this headnote Attorneys and Law Firms *1259 Gregory O. Wiggins, Kevin W. Jent, Russell W. Adams, Wiggins Childs Quinn & Pantazis, LLC, Birmingham, AL, for Plaintiff. Albert L. Vreeland, II, Lehr Middlebrooks & Vreeland PC, Birmingham, AL, Brett C. Bartlett, Robert C. Stevens, Seyfarth Shaw LLP, Atlanta, GA, for Defendant. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 327 of 520 PageID 963 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 MEMORANDUM OPINION KARON OWEN BOWDRE, District Judge. This FLSA collective action comes before the court on Defendant Aaron Rents' Motion for Summary Judgment as to *1260 Plaintiff Tom Kuntsmann individually, filed September 29, 2011. (Doc. 218). 1 Kuntsmann filed a complaint on October 22, 2008, alleging that Aaron willfully violated the Fair Labor Standards Act (“FLSA”) by misclassifying him and similarly situated employees as exempt from the FLSA's overtime requirements. (Doc. 1). Mr. Kuntsmann sought to represent a collective class of “opt-in” plaintiffs. Aaron asserts that it is entitled to Summary Judgment because the undisputed facts and applicable law establish that Aaron properly classified Kuntsmann as exempt from the FLSA's overtime provisions and compensated him in accordance with 29 U.S.C. § 207(i), which precludes Kuntsmann from proving Aaron violated the FLSA. Because genuine issues of material fact exist and because Aaron is not entitled to judgment as a matter of law, the court finds that Aaron's Motion for Summary Judgment is due to be DENIED. 1 After prolonged mediation efforts, this case was transferred to the undersigned judge on June 26, 2012. I. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. Factual History Aaron sells and leases residential furniture, consumer electronics, home appliances, and accessories for personal, family, and household purposes. Aaron hired Kuntsmann as a Regional Sales Manager in July 2005. He held that position until he was demoted to the General Manager (“GM”) position at the Anniston, Alabama store on November 1, 2007. Kuntsmann worked as GM at the Anniston store for five months, until April 2008, when Aaron terminated him for violating company policy. Kuntsmann reported to Regional Manager (“RM”) Paula Hooks throughout his tenure as GM of the Anniston store. The parties hotly dispute Kuntsmann's role and duties as GM of the Anniston store. Kuntsmann claims that his primary duties were non-managerial, such as unloading trucks, moving merchandise, cleaning the store, waiting on customers, and calling on customers to make collections. Kuntsmann also claims that he had little involvement in the supervision of his fellow employees; he claims that he did not train them, motivate them, set their goals, evaluate their job performance, allow them to work overtime, or set their work schedules. Kuntsmann alleges that the Regional Manager or “someone higher up in the Corporate chain of command” had control over managerial tasks in the store, such as hiring procedures, employee scheduling, and lease and collection procedures. (Doc. 221–24, at 3). Aaron claims that Kuntsmann was solely responsible for managing the store, overseeing his subordinate employees, maximizing the store's revenue and profitability, and determining and implementing business plans. Aaron claims Kuntsmann's duties included supervising store employees, reviewing their productivity, evaluating their performance, training them, reviewing their applications for employment, disciplining them, preparing their work schedules, and ensuring their safety and security. Additionally, Aaron claims that Kuntsmann was heavily involved with customers in negotiating lease agreements, addressing customer complaints, and overseeing collections of overdue lease payments. The deposition testimony and affidavits submitted by the parties support both of the parties' divergent characterizations of Kuntsmann's duties as a GM. Varying opinions, viewpoints, and recollections emerged in the many depositions and sworn statements taken in this case. Viewing all of the evidence in the light *1261 most favorable to the nonmovant reveals that some of Kuntsmann's duties were supervisory in nature, but he spent much of his time as GM engaged in non-managerial tasks, such as manual labor and customer relations. During his time as GM of that store, Kuntsmann was the highest ranking and only employee in the store whom Aaron classified as exempt from the FLSA's minimum wage and overtime requirements. Aaron's compensation scheme for GMs is based on the revenue and operating profits of each individual store. The GM of each store receives a monthly income that approximates the expected financial performance of the store in a month. This approximation, called the “draw,” is compared with the actual earnings of the store on a monthly basis. Then, Aaron adjusts salary upwards when the store performance exceeds the draw and sometimes downward when the store WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 328 of 520 PageID 964 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 performance does not meet the draw. GMs are also eligible for monthly bonuses based on set financial goals. Aaron reviews each store's performance twice a year and can increase or decrease the draw according to performance. Aaron also looks at the financial performance of the store at the end of each quarter and provides the GM a bonus if his total monthly commission is greater than the GM's quarterly draw. B. Procedural History Kuntsmann filed a Collective Action Complaint against Aaron on October 10, 2008 for equitable and injunctive relief and to remedy alleged violations of the wage provisions of the FLSA. Specifically, Kuntsmann and similarly situated “opt in” employees seek to recover unpaid overtime compensation, allegedly owed to them under the FLSA, 29 U.S.C. § 201 et seq. Kuntsmann asserts that he and other similarly situated GMs were paid a specified weekly salary, but were not paid any overtime wages despite the fact that they worked in excess of 40 hours a week. The basis of Aaron's Motion for Summary Judgment is that Kuntsmann, as a GM, is exempt from the overtime requirement under the executive, administrative, or combination exception under 29 U.S.C. § 213(a)(1) or, in the alternative, that Kuntsmann is still not entitled to overtime compensation because his actual compensation satisfied the requirements of 29 U.S.C. § 207(i), which applies to commissioned employees working in a retail or service establishment. II. STANDARD OF REVIEW Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. When a district court reviews a motion for summary judgment, it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56). The moving party can meet this burden by offering evidence showing no dispute of material fact or by showing that the non-moving party's evidence fails to prove an essential element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. Rule 56, however, does not require “that the moving party support its *1262 motion with affidavits or other similar materials negating the opponent's claim.” Id. Once the moving party meets its burden of showing the district court that no genuine issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Disagreement between the parties about facts is not significant unless the disagreement presents a “genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) In responding to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)) (emphasis added). In reviewing the evidence submitted, the court must “view the evidence presented through the prism of the substantive evidentiary burden,” to determine whether the nonmoving party presented sufficient evidence on which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254, 106 S.Ct. 2505; Cottle v. Storer Commc'n, Inc., 849 F.2d 570, 575 (11th Cir.1988). The court must refrain from weighing the evidence and making credibility determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir.2000); Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). Furthermore, all evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282. The nonmoving party “need not be given the benefit of every WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 329 of 520 PageID 965 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 inference but only of every reasonable inference.” Id. The evidence of the non-moving party “is to be believed and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After both parties have addressed the motion for summary judgment, the court must grant the motion if no genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. III. ANALYSIS The FLSA generally requires that employers pay their employees time and a half for any time an employee works in excess of 40 hours a week. 29 U.S.C. § 207(a)(1); Alvarez Perez v. Sanford– Orlando Kennel Club, Inc., 515 F.3d 1150, 1156 (11th Cir.2008). However, these overtime provisions do not apply to all employees; the FLSA exempts from its minimum wage and overtime requirements “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). Aaron argues that it properly classified Kuntsmann as exempt from the FLSA's overtime provisions pursuant to the executive exemption, administrative exemption, and the combination exemption. Alternatively, Aaron asserts that if it did misclassify Kuntsmann, he is still not entitled to overtime compensation because his actual compensation satisfied the requirements of 29 U.S.C. § 207(i), which applies to commissioned employees working in a retail or service establishment. *1263 A. The Executive Exemption Aaron first argues that it properly classified Kuntsmann as exempt as an executive. The executive exemption provides that the FLSA's overtime requirements “shall not apply with respect to ... any employee employed in a bona fide executive ... capacity.” 29 U.S.C. § 213(a)(1). Under the Department of Labor (“DOL”) regulations, to establish an employee as a bona fide executive, an employer must show: (1) the employee is “[c]ompensated on a salary basis at a rate of not less than $455 per week;” (2) the employee's “primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;” (3) the employee “customarily and regularly directs the work of two or more other employees;” and (4) the employee “has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.” 29 C.F.R. § 541.100(a) (2006); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1266 (11th Cir.2008). The parties agree that the first element—the amount of salary—is met. While Kuntsmann was employed as GM of the Anniston store, his monthly draw was $4,583 ($55,000 annually) and was never reduced. This amount equates to approximately $1,057.69 per week, easily satisfying the salary requirement for the executive exemption. The parties hotly dispute, however, the remaining three elements. The regulations state that “[t]he term ‘primary duty’ means the principal, main, major or most important duty that the employee performs.” 29 C.F.R. § 541.700(a) (2006). The regulations explain that the primary duty analysis “must be based on all the facts in a particular case,” but “with the major emphasis on the character of the employee's job as a whole.” Id. Furthermore, the regulations list five factors to be considered when conducting the primary duty inquiry: (1) “the relative importance of the exempt duties as compared with other types of duties;” (2) “the amount of time spent performing exempt work;” (3) “the employee's relative freedom from direct supervision;” and (4) “the relationship between the employee's salary and the wages paid to other employees for the kind of work performed by the employee.” Id.; see also Family Dollar, 551 F.3d at 1268. A particular point of contention in this case is the factor addressing the “amount of time spent performing exempt work.” The Eleventh Circuit presented the following analysis of this factor in Family Dollar: The new regulations state that this factor “can be a useful guide in determining whether exempt work is the primary duty of an employee” and that “employees who spend more than 50 percent of their time performing exempt work generally will satisfy the primary duty requirement.” 29 C.F.R. § 541.700(b) (2006). As in the old ones, the new regulations specify that “[t]ime alone, however, is not the sole test” and thus “[e]mployees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement if the other factors support such a conclusion.” Id. (2006). The new regulations also clarify that “[c]oncurrent performance of exempt and nonexempt work does not WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 330 of 520 PageID 966 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 disqualify an employee from the executive exemption if the requirements of § 541.100 are otherwise met.” Id. § 541.106(a) (2006). In other words, an employee's performance of nonexempt work does not preclude the exemption if the employee's *1264 primary duty remains management. Similarly, an employee whose primary duty is to perform nonexempt work does not become exempt merely because she has some responsibility for occasionally directing the work of nonexempt employees. “Whether an employee meets the requirements of § 541.100 when the employee performs concurrent duties is determined on a case-by- case basis” and based on the factors already set forth in § 541.700(a) as to the primary duty question. Id. (2006). 551 F.3d at 1268–69 (footnote omitted). [1] An exempt executive employee must perform management duties, and those duties must be his primary duty. The regulations provide a list of examples of management duties: interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the type of materials, supplies, machinery, equipment or tools to be used for merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures. 29 C.F.R. § 541.102. [2] Aaron asserts that Kuntsmann's primary duty was management, as he regularly performed many of the exemplary management duties provided in the regulations, including interviewing applicants and being responsible for the supervision, training, discipline, safety, and security of the store employees. He was also responsible for the store's sales, inventory, and selection and ordering of merchandise. Aaron argues that these management duties were substantially more important to the company that any other types of duties he performed. Finally, Aaron states that Kuntsmann spent sufficient time performing management duties because he performed them simultaneously with nonexempt tasks. Kuntsmann, however, asserts that he spent 80–90% of his time on non-management tasks, including manual labor involved with unloading freight, cleaning the floors and bathrooms, and replacing merchandise on the sales floor. He claims that in actuality, he performed very few true managerial duties. The parties also dispute the facts involved in evaluating the remaining two elements under the Executive Exemption—directing the work of other employees and the authority to hire and fire employees. On one hand, Aaron argues that Kuntsmann regularly supervised the work of other employees, and also states that he had the authority to hire employees. On the other hand, Kuntsmann argues that while he assisted other employees in setting their goals, he did not create goals for them, and he denies that he evaluated other employees' performance. Furthermore, Kuntsmann states that while he interviewed employees and could and did make recommendations to the RM, he did not have the authority to hire and fire employees. Because genuine, and hotly contested, issues of material fact exist as to the extent of Kuntsmann's managerial duties, when viewing the evidence in the light most favorable to the nonmovant, the court cannot grant summary judgment for Aaron under the Executive Exemption. *1265 B. The Administrative Exemption Aaron also claims Kuntsmann is not entitled to overtime pursuant to the administrative exemption. An exempt administrative employee is one WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 331 of 520 PageID 967 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 (1) Compensated on a salary or fee basis at a rate of not less than $455 per week ... (2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) Whose primary duty includes the exercise of discretion and independent judgment to matters of significance. 29 C.F.R. § 541.200. Furthermore, “[t]he phrase ‘directly related to the management or general business operations' refers to the type of work performed by the employee. To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from ... selling a product in a retail or service establishment.” 29 C.F.R. § 541.201(a). Such work includes, but is not limited to, quality control, purchasing, procurement, safety and health, personnel management, labor relations, public relations, and similar activities. Id. 541.201(b). “Some of these activities may be performed by employees who also would qualify for another exemption.” Id. [3] Again, the parties strongly contest the existence of the second and third elements. As the court previously stated, the parties dispute the amount of time Kuntsmann spent performing managerial versus non-managerial duties. In addition, Aaron asserts that GMs exercised a great level of independent authority and discretion over the day-to-day operations of the store as the highest ranking employee in the store. Kuntsmann, however, argues that he enjoyed little discretion because nearly all of his decisions, no matter how significant or trivial, were determined by the very detailed company manual or by the Regional Manager. Because genuine, and hotly contested, issues of material fact exist as to the extent of Kuntsmann's independent judgment and discretion as a GM when viewing the evidence in the light most favorable to the nonmovant, the court cannot grant summary judgment for Aaron under the Administrative Exemption. C. Combination Exemption [4] [5] Aaron also argues that Kuntsmann's duties then qualify him as exempt under the combination exception. An employee who meets some, but not all, of the elements of the executive and administrative exemptions still may qualify as exempt under the DOL's regulations. The combination exemption “focuses solely on the employee's job duties.” IntraComm, Inc. v. Bajaj, 492 F.3d 285, 293 (4th Cir.2007) (citing 29 C.F.R. § 541.708). The regulations provide: Employees who perform a combination of exempt duties as set forth in the regulations in this part for executive, administrative, professional, outside sales and computer employees may qualify for exemption. Thus, for example, an employee whose primary duty involves a combination of exempt administrative and executive work may qualify for an exemption. In other words, work that is exempt under one section of this part will not defeat the exemption under any other section. 29 C.F.R. § 541.708. The combination exemption “provides a mechanism for cobbling together different exempt duties for purposes of meeting the primary-duty test.” IntraComm, Inc., 492 F.3d at 294. [6] Whether Kuntsmann's duties were managerial or administrative in nature or something else entirely bears directly on *1266 the issue of whether he qualifies as exempt under the Combination Exception. Again, the parties dispute the nature and importance of the duties performed by Kuntsmann, including the amount of time he spent performing managerial versus non- managerial duties, precluding summary judgment under the Combination Exception. Simply stated, genuine issues of material fact exist regarding the application of the Executive, Administrative, and Combination Exceptions to Kuntsmann's job duties as a GM at Aaron. Considering the facts in favor of Kuntsmann as the non-movant, Aaron cannot meet its initial burden on summary judgment. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 332 of 520 PageID 968 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 2548 (the moving party bears the initial burden of proving the absence of a genuine issue of material fact). D. 29 U.S.C. § 207(i)—Retail or Service Establishment Exemption In the alternative, Aaron argues that if it did misclassify Kuntsmann as exempt, then the undisputed facts establish that it nevertheless paid him in accordance with the § 207(i) exception; the exemption relieves Aaron from the overtime pay requirements of the FLSA if Kuntsmann's regular rate of pay exceeded one and one-half of the required minimum wage and more than one-half of his compensation was earned under a bona fide commission plan. To establish the applicability of the § 207(i) exception, Aaron must show that (1) the Anniston store is a “retail or service establishment;” (2) the Plaintiff's regular rate of pay exceeds 1.5 times the minimum wage; and (3) more than half of the Plaintiff's compensation for a representative period (not less than one month) represents commissions on goods or services. 29 U.S.C. 207 § (i); Klinedinst v. Swift Investments, Inc., 260 F.3d 1251, 1254 (11th Cir.2001). 1. 29 U.S.C. § 207(i) as a Waivable Affirmative Defense First, however, the court will address Kuntsmann's procedural arguments against Aaron's invocation of § 207(i). Kuntsmann argues that Aaron has waived this particular defense because it is an affirmative defense, and Aaron did not specifically plead it in its initial Answer or in its Amended Answer. In support, Kuntsmann points to the definition of “affirmative defense”: “[a]n affirmative defense is any fact asserted by the respondent that vitiates the opposing party's claim ... A party must raise all affirmative defenses as affirmative defenses or they are waived.” STEVEN BAICKER–MCKEE, JOHN B. CORR, AND WILLIAM M. JANSSEN, FEDERAL CIVIL RULES HANDBOOK, 350 (2011). Kuntsmann asserts that defense counsel affirmatively disavowed invoking § 207(i) earlier in the litigation, and Aaron did not raise it until after discovery had been closed and it had obtained new counsel. In response, Aaron argues that § 207(i) is not an affirmative defense that can be waived, but is instead a manner in which employers can comply with the FLSA's pay requirements. The parties do not indicate, and this court is not aware, of any precedent from the Eleventh Circuit regarding whether § 207(i) is an affirmative defense. However, Aaron does direct the court to a relevant decision from the Seventh Circuit that held that, “[s]ection 7(i) is not an affirmative defense that should have been raised in the pleadings. It is a method of complying with the [FLSA], part of § 7 that states the Act's general rules, and the general denial of liability therefore put this (and all other methods of compliance) in play.” Walton v. United Consumers Club, 786 F.2d 303, 307 (7th Cir.1986). *1267 Aaron notes that § 207, entitled “Maximum Hours” sets forth the FLSA's overtime requirement, while § 213, entitled “Exemptions” contains many exemptions from § 207's overtime requirements. Aaron explains that wage-hour jurisprudence treats § 213 exemptions as affirmative defenses, but that the retail sales and service establishment exemption was moved from § 213 to § 207 decades ago. For this reason, argues Aaron, two courts have treated the subsections of § 207 as statutory requirements, not exemptions or affirmative defenses. See, e.g., Walton, 786 F.2d at 307; Brock v. City of Cincinnati, 236 F.3d 793, 810 (6th Cir.2001) (district court did not abuse discretion in entertaining city's § 207(k) argument, even though the defendant did not raise that issue until trial; applicability of § 207(k) “to a given case is a matter of law dictated by § 207(a) itself ... rather than an ‘exemption’ in the nature of those in § 213(a), which employers must plead and carry the burden of proving apply to particular employees”) (internal citations and quotations omitted). Finally, Aaron also argues that even if this court decides to treat § 207(i) as an affirmative defense, it did not waive the defense. Pointing to the analysis of the Seventh Circuit in Walton, 786 F.2d at 307, Aaron asserts that in its Fourteenth Affirmative Defense of its Amended Answer, Aaron denies that it violated the requirements of § 207. In other words, in its Answer Aaron asserted that it did in fact comply with § 207, which would include § 207(i). [7] Admittedly, very little case law addresses this issue, and none in this Circuit. However, Aaron has presented decisions from other courts that have held that § 207(i) is not an affirmative defense, while Kuntsmann has not presented any case law to the contrary, and the court found none. Therefore, this court finds that § 207(i) is not an affirmative defense that Aaron waived by not WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 333 of 520 PageID 969 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 specifically pleading it, and the court will now move on to address the merits of Aaron's § 207(i) argument. 2. Application of the 29 U.S.C. § 207(i) Exception [8] The parties do not dispute that the first element of § 207(i), the retail or service establishment requirement, is met. They disagree, however, about whether Aaron can show that Kuntsmann's regular rate of pay exceeds one and one-half times the minimum wage and whether Kuntsmann's compensation can fairly be deemed a “commission” to meet the requirements of the § 207(i) exception. In the Eleventh Circuit, the employer “bears the burden of proving the applicability of an FLSA exception by ‘clear and affirmative evidence.’ ” Klinedinst, 260 F.3d at 1254 (quoting Birdwell, 970 F.2d at 805). a. Regular Rate of Pay Exceeds One and One-half Times Minimum Wage Kuntsmann claims that Aaron has not provided the court with any evidence that GMs are paid more than one and one-half times the minimum hourly wage because it has not estimated how many hours per week he worked. Without the number of hours worked, Kuntsmann argues that Aaron cannot calculate an hourly wage and cannot calculate that the GMs are paid more than one and one- half times the minimum hourly rate. The Eleventh Circuit in Klinedinst ultimately remanded a § 207(i) case to district court because neither the employer nor the employee in the case kept a record of hours that the employee worked on a weekly basis. The court specifically stated that, “[t]he number of hours worked per week is a genuine issue of material fact for the factfinder.” Klinedinst, 260 F.3d at 1257 (citing *1268 Brennan v. Valley Towing Co., 515 F.2d 100, 111–112). Kuntsmann argues that because Aaron kept no records of his hours, then a question of fact exists as to whether the GMs meet the second requirement of the § 207(i) exception. [9] Here, neither Aaron nor Kuntsmann have produced a record of Kuntsmann's or any GM's weekly working hours. Kuntsmann argues that 29 C.F.R. § 779.420 requires any company who is claiming the § 207(i) exception to keep accurate records regarding each of the individuals for whom this defense is claimed, including a specific record of the hours worked by each employee. See 29 C.F.R.779.420, 516.16 (requiring “employers [to] maintain and preserve payroll and other records containing all the information and data required by 29 C.F.R. § 516.2(a)”). The only indication the court has of Kuntsmann's weekly working hours is based on his testimony that he worked “50–60” hours a week. (Doc. 222–21, at 77–79). Aaron correctly points out, however, that even accepting Kuntsmann's testimony that he worked sixty hours per week, his regular rate of pay would exceed one and one-half times the minimum wage. (Doc. 219, at 27). Kuntsmann's annual salary was $55,000, and he claims that he worked 50–60 hours per week. This converts to a weekly pay of $1,057.69. Kuntsmann's regular pay based on a sixty hour work week and his weekly compensation would be $17.63 per hour. The minimum wage during Kuntsmann's time of employment was $5.85 per hour, and one and one-half times that is $8.78, making $17.63 well above one and one-half times the required minimum wage. Thus, although Aaron has not produced a record of Kuntsmann's weekly working hours, Kuntsmann's own testimony about his working hours and Aaron's record of Kuntsmann's compensation proves that Kuntsmann's regular rate of pay exceeded one and one-half times the minimum wage. Aaron meets its “burden of proving” the second requirement of § 207(i) by “ ‘clear and affirmative evidence.’ ” Klinedinst, 260 F.3d at 1254 (quoting Birdwell, 970 F.2d at 805). b. One-half of Compensation Earned Under Bona Fide Commission Plan Kuntsmann denies that Aaron's compensation scheme can be considered a “bona fide commission plan.” Neither the FLSA nor the DOL's regulations provide a definition of “commission” in this context. The Eleventh Circuit has stated that Whether ... payments constituted commission is an issue of law. Yet, it is an issue that finds little illumination from the sparse case law and the vague references in statutes and regulations. Nonetheless, it is the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 334 of 520 PageID 970 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 duty of the courts to determine whether wage payment plans are in substantial compliance with FLSA. We undertake that duty by construing the remedial statutory provisions both narrowly and sensibly. Klinedinst, 260 F.3d at 1254 (citing Walling v. A.H. Belo Corp., 316 U.S. 624, 634–35, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942)); see also Brennan v. Valley Towing Co., 515 F.2d 100, 110 (9th Cir.1975); Birdwell v. City of Gadsden, 970 F.2d 802, 805 (11th Cir.1992) (“holding that FLSA provisions are interpreted liberally in the employee's favor and its exemptions construed narrowly against the employer.”) Aaron provides the following description of its compensation scheme: A General Manager's compensation plan is based on the revenue and operating profits of a store. A GM will receive a monthly level of income that approximates the anticipated financial performance of their store. This form of compensation is called a “draw.” The “draw” system provides a set monthly amount of pay according to a published scale. After the close of the P & L's for *1269 June and Dec. a review is conducted to compare the draw amount to the actual earned compensation based on the financial results of the store. Pay adjustments are made where warranted. If the store performance exceeds the monthly draw—a positive adjustment is made. If the financial performance “pays” less than the draw—management has the right to reduce the draw amount. The monthly “draw” is a benefit to a GM—not a guarantee. The “draw” forecasts what a store should financially produce at varying levels of revenue. Over a calendar quarter (3 months) the “draw” should approximate what the financial results of the store would produce in terms of compensation. Draws are increased when earned compensation based on financial performance consistently exceeds the draw. (“General Manager's Compensation and Performance Bonus Program,” Doc. 221–1, Ex. 4, at 90). In other words, a GM receives a pre-determined monthly “draw” based on the previous quarters' revenue of his store. In Kuntsmann's case, that monthly draw was $4,583.33, resulting in an annual salary of about $55,000. Aaron reviews the store's financial performance twice a year, and can either decrease or increase that monthly amount accordingly. In addition, after each quarter Aaron looks at the financial performance of each store, and will provide the GM a bonus if the GM's total monthly commission (calculated by adding together 2.5% of the store's net revenue and 16% of the store's net pretax profit) is greater than the GM's quarterly draw. GMs are also eligible for a monthly bonus of $200 and a quarterly bonus of $400 based on meeting certain financial goals. (Id. at 92). The following chart describes Kuntsmann's compensation during the first quarter of 2008, which was the only quarter he worked as a GM: 2.5% 16% Total Revenue Profit Monthly Monthly Commission Commission Commission Draw Difference Goal Bonus Month 1 $2,262 $2,299 $ 4,560 $ 4,583 ($23) Month 2 $2,493 $3,813 $ 6,303 $ 4,584 $1,719 $400 Month 3 $1,935 $ 884 $ 2,818 $ 4,583 ($1,765) WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 335 of 520 PageID 971 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 Total $6,689 $6,992 $13,692 $13,750 ($68) $400 (Doc. 221–18, at 3). Aaron explains that for this quarter, Kuntsmann did not receive a supplemental commission payment because his commission earnings (“Total Monthly Commission”) for the quarter did not exceed his draw. Had the “Difference” in the total column above been positive, he would have received a payment in that amount, because the quarterly commission payment is calculated by subtracting the quarterly draw from the earned commission. Aaron argues that a “draw” system like this one constitutes a bona fide commission plan. The DOL Regulations expressly recognize compensation plans like the one at issue as being “bona fide” plans under § 207(I)—i.e., plans involving “straight commission” with “advances,” “guarantees,” or “draws.” 29 C.F.R. § 779.413; see also Bowman v. Builder's Cabinet Supply Co., 2006 WL 2460817, at *7, 2006 U.S. Dist. LEXIS 62712, at *21 (E.D.Ky. Aug. 23, 2006). Some courts have held that some proportionality should exist between *1270 the compensation paid to the employees and the amount charged to the customer for the employee's compensation to be deemed “commission.” See Wilks v. Pep Boys, 278 Fed.Appx. 488, 489 (6th Cir.2008); Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173 (7th Cir.1987); McAninch v. Monro Muffler Brake Inc., 799 F.Supp.2d 807, 813 (S.D.Ohio 2011). Aaron argues that proportionality exists here because Kuntsmann's compensation as a GM derived from the sum of a percentage of his store's net revenue and a percentage of its profit. In contrast, Kuntsmann argues that Aaron's “draw system” of compensation is not a “bona fide commission” plan under § 207(i). Kuntsmann explains that the Aaron system provides a set monthly amount of pay according to a published scale, which results in a pre-determined specific regular salary. In the instant case, Kuntsmann received the same amount of compensation for each workweek. Kuntsmann argues that the regulations specifically state that such a compensation plan does not fall under § 207(i). See Lee v. Ethan Allen Retail, Inc., 651 F.Supp.2d 1361, 1366 (N.D.Ga.2009) (“The Code of Federal Regulations provides two examples of commission rates that are not bona fide plans. See 29 C.F.R. § 779.416(c). First, a commission rate is not bona fide where ‘the employee, in fact, always or most always earns the same fixed amount of compensation for each workweek (as would be the case where the computed commissions seldom or never equal or exceed the amount of the draw or guarantee).’ Id.”). While Kuntsmann acknowledges that adjustments may be made to a GM's compensation based on the relative financial success of the store, he asserts that such a scheme does not qualify as a bona fide commission. The two cases from this circuit that Aaron cites in support of its contention that its compensation scheme qualifies as a bona fide commission plan are Klinedinst v. Swift Investments, Inc., 260 F.3d 1251 (11th Cir.2001) and Lee v. Ethan Allen Retail, Inc., 651 F.Supp.2d 1361 (N.D.Ga.2009). The Eleventh Circuit described the compensation scheme at issue in Klinedinst as follows: Swift avers that the flat rate system it utilized is a form of commission, which is incentive- based and encourages efficiency and speed. Klinedinst was assigned an hourly rate (flag rate) for a particular task, but if it took longer than the allotted time, he would not be paid extra. If he completed the task sooner, however, he would keep the difference. For example, deposition testimony reveals that whether a technician took ten or thirty hours to complete a job, he would still be paid the same. Specifically, Swift determined Klinedinst's compensation per job by multiplying the predetermined flag hours by his hourly rate. He was to receive compensation under this formula regardless of whether he actually worked the predetermined flag hours. The flat rate of pay was not the hours of time it actually took the worker to complete a job. It is a method of providing employees with an incentive to “hustle” to finish their jobs in order to obtain WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 336 of 520 PageID 972 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 a larger number of jobs for greater compensation. 260 F.3d at 1254–55. The Court later described the “purpose or logic behind overtime” in explaining why it held that the payment plan at issue constituted a commission: The flat rate at issue (1) provides workers with an incentive to work quickly, while (2) paying them at a rate that exceeds minimum wage. The function of a commission exemption as embodied by section 7(i) is to ensure that workers who are paid on a commission basis are *1271 guaranteed to receive at least the legislated minimum wage without requiring them to work overtime for it. See 29 U.S.C. § 207(i). Payments of between $12 and $15 per flagged hour provide incentives for employees to work efficiently and effectively to the benefit of the employer, who may then take on more customers at a greater profit margin, and the employee, who reaps the benefits of increased flag hours regardless of the actual amount of hours worked. With this in mind, we conclude that Klinedinst's flag rate wages constitute a “commission”... Id. at 1256. The compensation scheme examined in Klinedinst is distinguishable from the one at issue in the present case. The Eleventh Circuit emphasized the importance of time as a factor in the Klinedinst compensation scheme; time does not play a role in the compensation of an Aaron's GM. In addition, inherent differences appear between how the auto mechanics in Klinedinst and the GMs at Aaron earn their compensation. The auto mechanics' compensation derived from each individual job that they performed that was assigned a particular number of “flag hours.” The connection between individual sales and the compensation of an Aaron GM is much more attenuated, however. At Aaron, GMs are neither paid on a “per job basis,” nor an hourly basis but a monthly compensation based on previous quarters' revenue that could possibly be increased or decreased based on the store's profits. The payment system in Klinedinst is different enough from the Aaron compensation scheme so that the opinion does not guide this court's analysis as to whether Aaron's payment scheme meets the final requirements of § 207(i) at the summary judgment stage—whether its compensation scheme qualifies as a bona fide commission plan. Aaron also cites Ethan Allen to support its contention that its compensation scheme qualifies as a bona fide commission plan, but the payment scheme in that case is also distinguishable from Aaron's plan. The district court in Ethan Allen described the compensation scheme at issue in that case as follows: Design Consultants, including Plaintiff, are paid on a commission basis. They are never paid a salary. After an initial two week training period, Plaintiff began making sales and earning commissions. Ethan Allen paid Plaintiff according to its written Design Consultant Compensation Plan (“Compensation Plan”). Pursuant to this Compensation Plan, Design Consultants earn a minimum of 7% commission on net written sales per fiscal month. The commission increases to 8% at $55,000 and 9% at $70,000. Design Consultants earn a commission on every dollar of their sales; there are no caps on the amount of commissions a Design Consultant can earn. 651 F.Supp.2d at 1363. The compensation scheme at issue in Ethan Allen is very different from that utilized by Aaron. The plaintiff in WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 337 of 520 PageID 973 Kuntsmann v. Aaron Rents, Inc., 903 F.Supp.2d 1258 (2012) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 Ethan Allen was only paid on a commission basis; the only money she received came from each individual sale she made, and she was “never paid a salary.” Ethan Allen, 651 F.Supp.2d at 1363. Again, the connection between individual sales and an Aaron GM's compensation is much more attenuated. [10] A great difference exists between simply adding up total sales attributed to a salesperson each month and then giving the salesperson a certain percentage of those sales in compensation, and awarding a store manager a “bonus” if his store's profits exceeded the company's predictions. As Kuntsmann argued, his monthly salary was based on a published rate and did not change based solely on his sales or *1272 the store's sales alone. The payment system in Ethan Allen diverges enough from the Aaron compensation scheme so that the opinion does not direct this court's analysis as to whether Aaron's scheme qualifies as a bona fide commission plan under § 207(i). Therefore, this court finds that Aaron has not demonstrated that its compensation scheme qualifies as a “bona fide commission plan.” 29 U.S.C. § 207(i). Although some circuits have doubted the validity of the “clear and affirmative evidence” standard, 2 the Eleventh Circuit has not retreated from this standard, and Aaron has not met it regarding the applicability of the § 207(i) exception. Moreover, regardless of how exacting Aaron's burden should be when proving the applicability of an FLSA exception, the Eleventh Circuit has also instructed this court to construe FLSA exceptions “narrowly and sensibly.” Klinedinst, 260 F.3d at 1254. After narrowly construing § 207(i), the court has serious doubts as to whether Aaron' compensation scheme qualifies under the statutory section. While recognizing that determining whether a compensation system qualifies as a bona fide commission plan is a question of law for the court, Aaron has not met its burden of proof at this stage. 2 See, e.g., Yi v. Sterling Collision Centers, Inc., 480 F.3d 505, 506–07 (7th Cir.2007). IV. CONCLUSION Because genuine issues of material fact exists in this case and because Aaron has not demonstrated that it properly classified Kuntsmann as exempt from the FLSA's overtime provisions or compensated him in accordance with 29 U.S.C. § 207(i), Aaron's Motion for Summary Judgment is DENIED. All Citations 903 F.Supp.2d 1258 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 338 of 520 PageID 974 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Tolentino v. Starwood Hotels & Resorts Worldwide Inc., Mo., August 19, 2014 2011 WL 666304 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Ewart LAWRENCE, individually and on behalf of all other persons similarly situated, Plaintiff, v. ADDERLEY INDUSTRIES, INC. and Cablevision Systems Corporation, Defendants. No. CV–09–2309 (SJF)(ETB). | Feb. 11, 2011. West KeySummary 1 Labor and Employment Joint or multiple employers Telecommunications company did not exercise sufficient formal control over technician employed by contractor to be deemed joint employer under the Fair Labor Standards Act (FLSA). There was no genuine dispute that telecommunications company did not have the power to hire and fire technician or contractor's other technicians, did not supervise and control work schedules or conditions of employment for technician or other technicians, determine rate and method of compensation of technician or other technicians, or maintain employment records on technician or other technicians. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.; Fair Labor Standards Act of 1938, § 1, 29 U.S.C.A. § 201 et seq. 11 Cases that cite this headnote Attorneys and Law Firms Bradley Ian Berger, Berger & Associates, New York, NY, Fran L. Rudich, Jeffrey A. Klafter, Seth R. Lesser, Klafte Olsen & Lesser LLP, Rye Brook, NY, for Plaintiff. Elizabeth R. Gorman, Milber Makris Plousadis & Seiden, LLP, Woodbury, NY, Manny A. Frade, Mastropietro & Associates LLC, Adam Samuel Wexler, Morgan Lewis & Bockius LLP, New York, NY, Michael J. Puma, Morgan, Lewis & Bockius, LLP, Philadelphia, PA, for Defendants. OPINION & ORDER FEUERSTEIN, District Judge. *1 On May 29, 2009, plaintiff Ewart Lawrence (“plaintiff”) commenced this putative collective and class action, individually and on behalf of all other persons similarly situated, against defendants Adderley Industries, Inc. (“Adderley”) and CSC Holdings LLC i/s/h Cablevision Systems Corporation (“Cablevision”) alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq, and the New York State Labor Law (“Labor Law”) §§ 2 and 651. Cablevision now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint against it. For the reasons stated herein, Cablevision's motion is granted. I. Background A. Factual Background 1 1 The factual allegations are derived from the parties' Rule 56.1 Statements and the affidavits and exhibits submitted in support of, and in opposition to, Cablevision's motion. The facts are not in dispute, unless otherwise indicated. 1. Cablevision's Relationship with Adderley Cablevision is a telecommunications, media and entertainment company that, inter alia, provides cable, internet and telephone services to customers in the New York area. (Def. 56.1 Stat., ¶ 1; Plf. 56.1 Stat., ¶ 1; Declaration of Thomas Monaghan [Monaghan Decl.], ¶ 2). Cablevision maintains that “[a] significant portion of the installation, service, repair and removal work for Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 339 of 520 PageID 975 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 [its] telecommunications services is not performed by [its] own employees; rather [it] contracts with vendors [“contractors”] * * * to perform most of th [o]se services. The Contractors, in turn, hire and maintain their own workforce of cable installers/technicians * * * [“technicians”] to assist them in completing the work.” (Def. 56.1 Stat., ¶ 4; Monaghan Decl., ¶ 5). Adderley is a wholly-owned subsidiary of Advanced Communications, Inc. (“ACI”), (Def 56.1 Stat., ¶ 13; Plf. 56.1 Stat., ¶ 13; Transcript of Deposition Testimony of Mike Lall [Lall Dep.], pp. 29–30), and is one (1) of six (6) contractors that perform installation, service, repair and removal work on Cablevision's cable, internet and telephone systems in the Bronx. (Def. 56.1 Stat., ¶ 7; Plf. 56.1 Stat., ¶ 7; Monaghan Decl., ¶ 8). Adderley is not a parent, subsidiary or affiliate of Cablevision, or of any of Cablevision's parents, subsidiaries or affiliates. (Def. 56.1 Stat., ¶ 8; Plf. 56.1 Stat., ¶ 8; Monaghan Decl., ¶ 9). Nor does Adderley have any ownership interest in Cablevision, or in any of Cablevision's parents, subsidiaries, or affiliates, or vice versa. (Def. 56.1 Stat., ¶ 9; Plf. 56.1 Stat., ¶ 9; Monaghan Decl., ¶ 10). Cablevision's “Standard Installation and Services Agreement (Single Family Residences, Multiple Dwelling Units and Commercial Buildings)” (“SIS Agreement”) with Adderley, dated December 1, 2006, as amended on January 15, 2007 and January 12, 2009, sets forth the terms under which Adderley provides technicians to install, service, repair and remove equipment for Cablevision's customers. (Def. 56.1 Stat., ¶¶ 10, 26; Plf. 56.1 Stat., ¶¶ 10, 26; Monaghan Decl., ¶¶ 11, 24; Lall Dep., pp. 141–2). Under the terms of the SIS Agreement, Adderley is required to perform work in accordance with Cablevision's procedures and specifications, (Monaghan Decl., ¶ 20; Lall Dep., pp. 186–7, 262–3, 277, 288), because a failure to complete work consistent with those specifications and procedures could create safety hazards for Adderley's technicians or Cablevision's customers, or lead to technical problems with Cablevision's equipment, (Def. 56.1 Stat., ¶ 22; Plf. 56.1 Stat., ¶ 22; Monaghan Decl., ¶ 20). Adderley is required to provide ongoing training to its technicians and to certify that all of its employees have been trained in accordance with Cablevision's specifications. (Lall Dep., pp. 223–7, 284; see Monaghan Decl., ¶ 38 (“Cablevision provides information to Adderley's management about Cablevision's systems and new updates to the systems or Cablevision products so that Adderley can perform under the [SIS] Agreement. But it is then entirely up to Adderley to decide how to communicate that information to its Technicians and to ensure that they are performing their duties appropriately.”)). According to Cablevision, it does not train Adderley's technicians and does not determine which materials Adderley should use to train its technicians or how the training should be conducted. (Monaghan Decl., ¶¶ 37–8). Although Cablevision has the right to audit Adderley's training curriculum, it has never done so. (Lall Dep., p. 228). *2 Section 12(b) of he SIS Agreement provides, in relevant part, that Adderley “understands and agrees that Cablevision shall not, for any purpose, be deemed to be the employer of any Employee of [Adderley] * * *. [Adderley] further agrees that, other than reserving the right to request that [Adderley] remove its Employees from a Cablevision Project * * *, Cablevision has no authority to affect the terms or conditions of the employment of any of [Adderley's] Employees.” (Def. 56.1 Stat., ¶ 34; Plf. 56.1 Stat., ¶ 34). However, Adderley is not permitted to hire any subcontractors. (Lall Dep., p. 262). Although the SIS Agreement does not prohibit Adderley from providing cable, telephone or internet installation, service, repair, removal or other work for companies other than Cablevision, Adderley's only client is Cablevision, (Def. 56.1 Stat., ¶ 11; Plf. 56.1 Stat., ¶ 11; Monaghan Decl., ¶ 12; Lall Dep., pp. 19–20, 60–1, 298–9, 307), and all of its revenue comes from Cablevision. (Lall Dep., pp. 261– 2). Nonetheless, ACI, Adderley's parent company, does perform services for entities other than Cablevision. (Def. 56.1 Stat., ¶ 13; Plf. 56.1 Stat., ¶ 13). Cablevision provides Adderley with work orders identifying the jobs to be completed and the “appointment windows” within which the work must be performed, but Adderley assigns particular technicians to the specific jobs and develops the routes for the technicians. (Lall Dep., pp. 121–2, 124, 151–2, 158; Monaghan Decl., ¶ 57). Cablevision requires Adderley's technicians to arrive at its customers' houses within the scheduled appointment window and prohibits Adderley from changing the appointment window. (Lall Dep., pp. 123, 159–60, 272). Nonetheless, Adderley is permitted to change which technician it assigns to perform the work within the scheduled appointment window. (Lall Dep., pp. 272–5; see Monaghan Decl., ¶ 56). Moreover, although Cablevision WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 340 of 520 PageID 976 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 requires Adderley to provide it with a weekly “Workforce Planner” identifying every technician who will perform work that week, Adderley determines the number of technicians it will assign to work. (Lall Dep., pp. 197–8, 296; see Monaghan Decl., ¶ 55). Cablevision's work orders also inform Adderley what equipment its technicians need for each job. (Lall Dep., p. 231). Cablevision expects Adderley to complete all of the jobs given it on a particular day and tracks the jobs assigned to Adderley via its cable data system that records each technician's route and is updated as each job is completed. (Lall Dep., pp. 153–7). According to Lall, ACI's director of operations over Adderley, Adderley cannot “close a job” and move a technician to another job without Cablevision's approval, (Lall Dep., pp. 71– 2, 167, 172–3), unless the job is a trouble call involving a problem with the customer's equipment, as opposed to a problem with Cablevision's service. (Lall Dep., p. 169). If an Adderley technician is unable to complete a job or to perform it properly, Adderley will “refer” the job to Cablevision for completion by one of its own technicians. (Id.) Upon completion of ajob, Adderley's technician must have the customer sign a Cablevision acceptance or acknowledgment form and collects payment from the customer for Cablevision, both of which the technician submits to Adderley for submission to Cablevision. (Lall Dep., pp. 238–9; Def. 56.1 Stat., ¶ 77; Plf. 56.1 Stat., ¶ 77; see Monaghan Decl., ¶ 58). *3 Although Adderley does not need Cablevision's approval in order to perform work for Cablevision's customers other than what is contained in the work order, its technicians cannot perform any additional work without first obtaining a rate code change from Cablevision. (Monaghan Decl., ¶ 16; Lall Dep., pp. 127– 8, 161, 286–8). For example, if a customer requests an additional cable box, modem or other equipment to be installed, Adderley's technician can perform that work without first obtaining Cablevision's approval, but the extra equipment would not be operable until the technician obtained a rate code from Cablevision. (Lall Dep., pp. 163–4, 175–6). Similarly, if a customer requests an upgrade in the services provided by Cablevision, i.e., the customer originally requested only cable services but decided once the technician was there that he or she also wanted internet services, Cablevision would have to be contacted in order to upgrade its work order “so that that rate code [could] be added so that extra piece of equipment would be recognized by the electronic equipment and then added and then turned on.” (Lall Dep., pp. 164–6, 174). Adderley does not need Cablevision's approval before hiring a technician, but it notifies Cablevision when it hires a technician so that Cablevision can issue the technician an identification badge identifying him or her as a Cablevision contractor. (Lall Dep., pp. 133, 149– 51, 193–4, 259–60; Def. 56.1 Stat., ¶ 58; Plf. 56.1 Stat., ¶ 58; Monaghan Decl., ¶ 42). A technician cannot work on a Cablevision job without an identification badge. (Lall Dep., pp. 193–4, 200). Cablevision also maintains a list of approved workers, i.e., individuals authorized to install its equipment, and any individual not on that list cannot install Cablevision equipment. (Lall Dep., p. 198). According to Lall, any individual hired and trained by Adderley as a technician, and approved as capable of doing the job, will be issued an identification badge by Cablevision and will be added to its list of approved workers. (Lall Dep., pp. 199–200). Cablevision can direct Adderley not to assign an individual who was previously employed by one of its other contractors and had been disciplined or fired for bad performance to a Cablevision project, (Lall Dep., pp. 202–4, 300–1, 307; see Monaghan Decl., ¶ 70), and has removed technicians from its list of approved workers, (Lall Dep., p. 240), but Adderley would be permitted to employ that technician in a different capacity. (Monaghan Decl., ¶ 70). Cablevision also requires Adderley to perform certain pre- hiring screenings, i.e. drug tests and criminal background checks, before hiring a technician, (Monaghan Decl, ¶¶ 32–3; Lall Dep., pp. 209–10), to protect the safety of Cablevision's customers, whose homes Adderley's technicians will be entering, and Cablevision's equipment, to which the technicians have access. (Def. 56.1 Stat., ¶ 42; Plf. 56.1 Stat., ¶ 42). *4 Cablevision monitors the quality of the work Adderley technicians provide to its customers, (Lall Dep., pp. 215–6), and performs quality control inspections of approximately five percent (5%) of the work performed by Adderley's technicians, (Def. 56.1 Stat., ¶ 23; Plf. 56.1 Stat., ¶ 23; Monaghan Decl., ¶¶ 19–21). Although Cablevision uses post-call surveys and “other metrics” to evaluate Adderley's performance of its obligations under the SIS Agreement and will contact Adderley regarding any complaints about Adderley's technicians from its customers, Cablevision cannot tell Adderley to fire a WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 341 of 520 PageID 977 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 particular technician. (Monaghan Decl., ¶¶ 17, 30; Lall Dep., pp. 98–9, 191–3). Moreover, Cablevision does not discuss an individual technician's performance directly with that technician and does not have the authority to increase or decrease a technician's compensation, approve vacation or sick leave, discipline a technician or direct the performance of a technician. (Lall Dep., pp. 266–70, 289, 294; Def. 56.1 Stat., ¶¶ 69, 84; Plf. 56.1 Stat., ¶¶ 69, 84; Monaghan Decl., ¶¶ 22, 34–5, 52, 62–3, 67). Nor does Cablevision provide any benefits to any of Adderley's technicians. (Def. 56.1 Stat., ¶ 45; Plf. 56.1 Stat., ¶ 45; Monaghan Decl., ¶ 36). Adderley's technicians are required to wear uniforms while working, but Cablevision does not provide those uniforms and is not required to approve those uniforms, except to ensure the uniform's quality, i.e., it is not ripped, etc. (Lall Dep., pp. 212–5; Def. 56.1 Stat., ¶ 65; Plf. 56.1 Stat., ¶ 65; Monaghan Decl., ¶ 48) Both the Cablevision and Adderley logos are on the uniform. (Lall Dep., pp. 213–4). The vehicles Adderley's technicians use are either provided by Adderley or owned by a particular technician, but have to comply with standards established by Cablevision and display a Cablevision sign along with Adderley's name and address. (Lall Dep., pp. 218–22, 290–2; Def. 56.1 Stat., ¶¶ 60–1, 63–4; Plf. 56.1 Stat., ¶¶ 60–1, 63– 4; Monaghan Decl., ¶¶ 44–6). In addition, although Adderley's technicians install and service Cablevision equipment, since Cablevision service will not work on another company's equipment, they use either their own tools or tools provided by Adderley to install that equipment. (Lall Dep., pp. 289–90; Def. 56.1 Stat., ¶¶ 66, 68; Plf. 56.1 Stat., ¶¶ 66, 68; Monaghan Decl., ¶¶ 49–51). 2. Plaintiff's Employment Plaintiff worked as a technician for Adderley for approximately ten (10) months, from May 2009 until March 2009, (Def. 56.1 Stat., ¶ 30; Plf. 56.1 Stat., ¶ 30; Plf. Dep., pp. 52, 77, 202–3), and received training at Adderley in order to perform his duties. (Def. 56.1 Stat., ¶ 33; Plf. 56.1 Stat., ¶ 33; Plf. Dep., p. 106). Each morning plaintiff reported to Adderley's office in the Bronx, which is at a different location than Cablevision's offices, to pick up his work orders and equipment. (Def. 56.1 Stat., ¶¶ 52–3; Plf. 56.1 Stat, ¶¶ 52–3; Plf. Dep., pp. 80, 107, 116–9). Cablevision did not provide plaintiff with any tools, uniform or van; rather plaintiff used his own vehicle and either his own or Adderley's tools, and wore a uniform provided by Adderley. (Plf.Dep ., pp. 213–5). At the end of each workday, plaintiff completed a “cover sheet,” indicating the quantity of jobs he performed and his “tech number,” and submitted it to an Adderley dispatcher at Adderley's office in the Bronx. (Plf.Dep., pp. 125–6). Plaintiff could only recall being on Cablevision's premises on two (2) occasions during his employment with Adderley for the purposes of attending a meeting at which the level of performance Cablevision expected from Adderley's technicians was discussed and obtaining his identification badge, respectively. (Def. 56.1 Stat., ¶¶ 54–6; Plf. 56.1 Stat., ¶¶ 54–6; Transcript of Deposition Testimony of Ewart Lawrence [Plf. Dep.], pp. 87, 90–2, 95–6). Plaintiff's paycheck said “Adderley” and he never received a paycheck from Cablevision. (Plf.Dep., pp. 207– 8). *5 According to plaintiff, if a customer asked for whom he worked, he was instructed to say that he was a “representative” of Cablevision. (Plf.Dep., pp. 119–20, 226, 228–9). Plaintiff denied ever being instructed to identify himself as working for “Adderley, a Cablevision contractor.” (Plf.Dep., pp. 119–20). Nonetheless, plaintiff was never instructed to say that he was employed by Cablevision either. (Plf.Dep., p. 229). According to Lall, Adderley's technicians are instructed to advise customers who ask that he or she is a contractor for Cablevision. (Lall Dep., pp. 133–4, 283). Plaintiff's supervisor was Colin Lovelace (“Lovelace”), an employee of Adderley or ACL (Def. 56.1 Stat., ¶ 81; Plf. 56.1 Stat ., ¶ 81; Plf. Dep., pp. 23–5, 170). Lovelace, in turn, reported to Lall, an employee of Adderley or ACI. (Def. 56.1 Stat., ¶ 82; Plf. 56.1 Stat., ¶ 82; Plf. Dep., p. 25). Plaintiff complained to Lall and Lovelace about working overtime without pay, but never complained to Cablevision. (Plf.Dep., pp. 211–3). Cablevision did not provide plaintiff any employee benefits. (Plf.Dep., p. 213). During his employment, plaintiff was repeatedly disciplined by Adderley without any knowledge or input by Cablevision. (Def. 56.1 Stat., ¶¶ 86, 94; Plf. 56.1 Stat., ¶¶ 86, 94; Plf. Dep., pp. 68–70, 102–3, 205; Monaghan Decl., ¶ 69). Adderley ultimately terminated plaintiff's employment without any participation or input by Cablevision. (Def. 56.1 Stat., ¶¶ 92–3; Plf. 56.1 Stat., ¶¶ 92–3; Plf. Dep., pp. 203–5; Monaghan Decl., ¶ 68). Subsequently, plaintiff obtained employment for Falcon, WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 342 of 520 PageID 978 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 another Cablevision contractor, and performed services for Cablevision. (Plf.Dep., pp. 205–7, 221). Plaintiff could not recall ever previously claiming on any employment application, loan application or other document that he was employed by Cablevision. (Def. 56.1 Stat., ¶ 36; Plf. 56.1 Stat., ¶ 36; Plf. Dep., pp. 39–46, 57–8, 64–6). B. Procedural History On May 29, 2009, plaintiff commenced this putative collective and class action, individually and on behalf of all other persons similarly situated, against Adderley and Cablevision alleging violations of the FLSA (first cause of action) and the New York State Labor Law (second cause of action). Cablevision now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint against it. II. Discussion A. Standard of Review Summary judgment should not be granted unless “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on a summary judgment motion, the district court must first “determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotations and citations omitted); see Ricci v. DeStefano, 557 U.S. 557, ––––, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (holding that “[o]n a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” (Emphasis added) (internal quotations and citation omitted)). “A fact is material if it ‘might affect the outcome of the suit under governing law.’ “ Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci, 129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). *6 If the district court determines that there is a genuine dispute as to a material fact, the court must then “resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment,” Spinelli, 579 F.3d at 166 (internal quotations and citation omitted); see also Aulicino v. New York City Dept. of Homeless Services, 580 F.3d 73, 79 (2d Cir.2009), to determine whether there is a genuine issue for trial. See Ricci, 129 S.Ct. at 2677. A genuine issue exists for summary judgment purposes “where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also United Transp. Union v. National R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). “The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact,” F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir.2010) (quotations and citation omitted), after which the burden shifts to the nonmoving party to “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.; see also Spinelli, 579 F.3d at 166. Thus, the nonmoving party can only defeat summary judgment “by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of” a factual question that must be resolved at trial. Spinelli, 579 F.3d at 166 (internal quotations and citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. “Joint Employer” The FLSA broadly defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.” 29 U.S.C. § 203(d). 2 “[F]ederal regulations and [Second Circuit] precedent recognize the possibility of joint employment for purposes of determining FLSA responsibilities.” Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 141 (2d Cir.2008) (citing 29 C.F.R. § 791.2(a); Zheng v. Liberty Apparel Co. (“Zheng I”), 355 F.3d 61, 66 (2d Cir.2003)). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 343 of 520 PageID 979 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 2 Similar tests are applied to determine whether a party may be liable as an “employer” under both federal and state law. See, e.g. Gortat v. Capala Brothers, Inc., 257 F.R.D. 353, 367 n. 13 (E.D.N.Y.2009); Velu v. Velocity Express, Inc., 666 F.Supp.2d 300, 306–7 (E.D.N.Y.2009) (“Although slightly different that the FLSA inquiry, the standard for determining a worker's status as an employee or independent contractor under New York State Labor Law is similar, and accounts for some of the same factors). Accordingly, the following analysis applies to both plaintiff's federal and state law claims. “[T]he determination of whether an employer-employee relationship exists for purposes of the FLSA should be grounded in ‘economic reality rather than technical concepts,’ Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961) (internal quotation marks omitted), determined by reference not to ‘isolated factors, but rather upon the circumstances of the whole activity’ * * *.” Barfield, 537 F.3d at 141 (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed.2d 1772 (1947)). “As a result, [the Second Circuit] has treated employment for FLSA purposes as a flexible concept to be determined on a case-by-case basis by review of the totality of the circumstances.” Id. at 141–2. *7 In assessing the “economic reality” of a particular employment situation, courts consider various factors “based on the factual challenges posed by particular cases.” Barfield, 537 F.3d at 142. Initially, courts must “examine the degree of formal control exercised over a worker” by considering “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Barfield, 537 F.3d at 142, 143 (quoting Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir.1984)). Those four (4) factors are “useful largely in cases involving claims of joint employment,” Zheng I, 355 F.3d at 67 (internal quotations and citation omitted), and “can be sufficient to establish employer status,” although they are not “necessary to establish an employment relationship.” Id. at 71 (emphasis in original). A finding that a putative joint employer does not exercise formal control over a worker does not end the inquiry however. See Zheng I, 355 F.3d at 69. Rather, the court must then “assess whether an entity that lacked formal control nevertheless exercised functional control over a worker” by considering “(1) whether [the putative employer]'s premises and equipment were used for the plaintiffs' work; (2) whether the Contractor Corporations had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which plaintiffs performed a discrete line-job that was integral to [the putative employer]'s process of production; (4) whether responsibility under the contracts could pass from one subcontractor to another without material changes; (5) the degree to which the [putative employer] or (its) agents supervised plaintiffs' work; and (6) whether plaintiffs worked exclusively or predominantly for [the putative employer].” Barfield, 537 F.3d at 143 (quoting Zheng I, 355 F.3d at 72) . 3 “The court is also free to consider any other factors it deems relevant to its assessment of the economic realities.” Zheng I, 355 F.3d at 71–2. In sum, there is “no rigid rule for the identification of an FLSA employer.” Barfield, 537 F.3d at 143. Rather, courts must consider “ ‘a nonexclusive and overlapping set of factors' to ensure that the economic realities test * * * is sufficiently comprehensive and flexible to give proper effect to the broad language of the FLSA.” Id. (quoting Zheng I, 355 F.3d at 75–6). 3 Still other cases “distinguish between independent contractors and employees” by considering “(1) the degree of control exercised by the employer over the workers, (2) the workers' opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer's business.” Barfield, 537 F.3d at 142, 143 (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1058– 9 (2d Cir.1988)). These Brock factors, however, “do not bear directly on whether workers who are already employed by a primary employer are also employed by a second employer. Instead, they help courts determine if particular workers are independent of all employers.” Zheng I, 355 F.3d at 67–8. Thus, under the circumstances of this case, where it is undisputed that plaintiff was employed by Adderley, a primary employer, the Brock factors are inapplicable. Generally, “the question whether a defendant is a plaintiff's joint employer is a mixed question of law and fact. Such questions involve the application of a WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 344 of 520 PageID 980 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 legal standard to a particular set of facts.” Zheng v. Liberty Apparel Co., Inc. (“Zheng II”), 617 F.3d 182, 185 (2d Cir.2010) (internal quotations, alterations and citation omitted). “Mixed questions of law and fact are especially well-suited for jury determination....” Id. at 185–6 (internal quotations, brackets and citations omitted). Nonetheless, summary judgment is appropriate where application of the relevant factors to the facts of the case, viewed in the light most favorable to the plaintiff, compels the legal conclusion that the plaintiff was not an employee of a putative joint employer. See Zheng I, 355 F.3d at 76–7 4 . 4 Following the remand ordered in Zheng I, the district court denied the defendants' motion for summary judgment finding genuine disputes of material fact with respect to three (3) of the factors identified by the Second Circuit in Zheng I and the case proceeded to trial and jury verdict. Zheng II involved the defendants' appeal following the jury verdict on the issue, inter alia, of whether the district court improperly allowed the jury to determine the “ultimate legal question” of whether they were the plaintiffs' joint employer. Thus, the procedural posture of Zheng II is distinguishable from this case. 1. Formal Control *8 Cablevision did not exercise sufficient formal control over plaintiff, or Adderley's other technicians, to be deemed their joint employer under the FLSA. Based upon the evidence in the record, there is no genuine dispute as to a material fact that Cablevision did not: (1) have the power to hire and fire plaintiff or Adderley's other technicians; (2) supervise and control plaintiff's, or the other technicians', work schedules or conditions of employment; (3) determine the rate and method of plaintiff's or the other technicians' compensation; or (4) maintain employment records on plaintiff or the other technicians. The requirement that Adderley's technicians meet Cablevision's installation specifications “is entirely consistent with the standard role of a contractor who is hired to perform highly technical duties. It is in the nature of a contract that the contractor [Adderley] promises to deliver the performance bargained for by the client [Cablevision]. * * * [R]equiring a contractor [Adderley] to meet the client's [Cablevision's] technical specifications is not the type of ‘control’ which bestows ‘employee’ status on the contractor [Adderley].” Herman v. Mid–Atlantic Installation Services, Inc., 164 F.Supp.2d 667, 672 (D.Md.2000), aff'd sub nom Chao v. Mid– Atlantic Installation Services, Inc., 16 Fed. Appx. 104 (4th Cir.2001). Nor does the requirement that Adderley's technicians wear uniforms and identification badges identifying themselves as being associated with Cablevision render them employees of Cablevision. See, e.g. Herman, 164 F.Supp.2d at 673. The requirement to wear such identifying materials “does not affect the economic reality of the relationship [between Adderley and Cablevision], * * * but merely allows consumers to be assured of [the technicians'] bona fides.” Id. Cablevision's drug testing and background-check policy also does not indicate an employee/employer relationship. Rather, “[i]t is only good business sense for [Cablevision] to attempt to insure that [the technicians sent to its customers' homes] are fit to [enter those homes].” Herman, 164 F.Supp.2d at 673. Moreover, Cablevision's assignments of specific “windows” within which its customers must be serviced “stem[s] from the nature of the business and the need to provide reliable service and convenience to the consumers, not [from] the nature of the relationship between [Adderley] and [Cablevision] * * * [and] [does not] dictate a conclusion that [Adderley's technicians] are [Cablevision's] employees.” Herman, 164 F.Supp.2d at 674. A similar case seeking overtime wage payments under the FLSA was filed by cable technicians against a cable television provider, Comcast Corporation (“Comcast”), in the United States District Court for the District of Maryland entitled Jacobson v. Comcast Corp., 740 F.Supp.2d 683, 2010 WL 3769120 (D.Md. Sept.28, 2010). The following facts in Jacobson are substantially similar to the facts in this case: Comcast contracts with other companies (“the contractors”) to hire technicians to perform installation of its equipment in a customer's home; the contractors perform all, or the vast majority of their work, for Comcast; the technicians are issued identification numbers and badges by Comcast; all of the equipment installed in the customers' homes belong to Comcast, but the contractors and their technicians own the tools and equipment needed to WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 345 of 520 PageID 981 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 install that equipment; Comcast requires all prospective technicians to pass criminal background checks and drug screening tests before working on behalf of Comcast; the contracts between Comcast and the contractors require performance in accordance with Comcast's specifications and procedures; Comcast directs technicians to specific work sites and details the time frames in which jobs must be completed; Comcast utilizes a program permitting it to exercise real time monitoring of a technician's work to determine where they are, how long they are on site and what equipment they are utilizing and retains records of technicians' arrival and departure times; Comcast has the authority to “deauthorize” a specific technician, i.e., to strip the technician of his or her status as an “authorized contractor,” thereby prohibiting that technician from performing any work on behalf of Comcast and effectively terminating that technician because the contractors only perform work for Comcast; and Comcast does not pay the technicians directly, instead it pays the contractors for each service completed by their technicians. Id. at * 1–2. Moreover, in Jacobsonj unlike the present case, Comcast was required to approve all prospective technicians prior to their hiring by the contractors and occasionally contacted technicians directly to assign them to particular jobs. Id., at * 1, * 2. To the contrary, Cablevision is not required to approve prospective technicians before Adderley hires them and there is no evidence in the record that Cablevision ever contacted plaintiff, or any other technician, directly in order to assign then to a particular job. *9 The District Court in Jacobson found, inter alia, that although Comcast “unquestionably plays a role in hiring and firing technicians [,] * * * [i]t is only in the context of quality control * * * that Comcast exercises power over the hiring or firing of technicians.” 740 F.Supp.2d 683, 2010 WL 3769120, at * 4. Specifically, the court found, in relevant part, that: “[Contractors] are free to hire anyone they choose to hire, provided that the applicants do not have a criminal record or fail a drug test. Likewise, a [ ] [Contractor] has full authority to maintain the employment of the technicians, provided that a technician meets Comcast's quality performance standards, and to fire any technician that it believes should be fired, even if the technician meets Comcast's quality control standards.” Id., at * 4. In addition, the Jacobson court found that although Comcast “maintains specific standards to which the [Contractors] and technicians must adhere, and regularly monitors the technicians to ensure that their performance satisfies Comcast's expectations [,] * * * Comcast is not responsible for the day-to-day management of the technicians.” 740 F.Supp.2d 683, 2010 WL 3769120, at * 5. Specifically, the court found that Comcast “has no role in developing the [Contractors] human resources policies and does not dictate the technicians' working conditions, or determine the conditions upon which the technicians would receive payment. Th[o]se determinations are made by the [Contractors].” Id. The court further found significant: “that the control Comcast does exercise is in part designed to protect Comcast customers. * * * Technicians enter the residences of Comcast customers to perform installations. * * * Comcast's quality control procedures ultimately stem from the nature of their business and the need to provide reliable service to their customers, not the nature of the relationship between the technicians and Comcast. While Comcast's supervision and control may appear substantial in degree, it is qualitatively different from the control exercised by employers over employees.” Id. at * 6. Similarly, the court found that Comcast's retention of records regarding, inter alia, the technicians' arrival and departure times, employment status and history, criminal background and drug testing results “is only an extension of Comcast's control procedures. * * WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 346 of 520 PageID 982 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 * The information reflected in th[o]se records is used to ensure that Comcast receives the services for which it is entitled, and that the individuals fulfilling them are authorized to do so.” Id. Furthermore, the Jacobson court rejected the plaintiffs' claim that Comcast had control over their wages because it payed the contractors on a per service basis and the contractors, in turn, paid their technicians on a per service basis. Id. at * 6. Instead, the court found that: “Comcast's involvement in the pay structure of the [Contractors] is typical of any client/independent contractor relationship. Comcast does not issue the technicians' pay checks, pay stubs, or W–2s, nor do the technicians submit pay records or timesheets to Comcast. * * * To find that th[e] arrangement [to pay contractors on a per service basis] places Comcast in control of [the technicians'] wages would dramatically expand the FLSA to subsume traditional independent contractor relationships. * * * The [ Contractors], not Comcast, determine whether to pay their employees on a per service or salary basis, and at what rate.” *10 Id. The facts of this case are virtually indistinguishable from those presented in Jacobson and I find the district court's reasoning in that case to be persuasive. Accordingly, there is no genuine issue for trial regarding Cablevision's lack of formal control over Adderley's technicians. 2. Functional Control Plaintiff and Adderley's other technicians do not work on Cablevision's premises and although they install and service Cablevision's equipment, they use their own or Adderley's tools to do so and do not “use,” i.e., avail themselves of, Cablevision's equipment to accomplish the installation and service. Moreover, although Cablevision performs quality control inspections and reviews of the work performed by Adderley's technicians, it does not exercise any significant degree of supervision over plaintiff's or any particular technician's work. In addition, Adderley controls plaintiff's and its other technicians' work assignments and work schedule; Cablevision does not provide plaintiff or Adderley's other technicians with a uniform that they must wear; Cablevision's identification badges and vehicle signage clearly indicate that the technicians were employed by Adderley, a contractor of Cablevision; and Cablevision does not provide plaintiff, or Adderley's other technicians, with any type of employee benefits. Furthermore, plaintiff and Adderley's other technicians only perform work for Cablevision pursuant to the SIS Agreement, i.e., to the extent Adderley (or another contractor with whom they are employed) is hired to do so, and Adderley's business could “shift as a unit” from Cablevision to another cable media provider. In addition, although plaintiff and Adderley's other technicians perform discrete jobs that are integral to Cablevision's services, the degree of skill required to perform those jobs weighs against a finding of employer status. See, e.g. Chao, 16 Fed. Appx. at 107 (finding that the degree of skill required to install and repair cable equipment weighed against a finding of employee status); Freund v. Hi–Tech Satellite, Inc., 185 Fed. Appx. 782, 784 (11th Cir.2006) (accord). The only relevant factor weighing in favor of a joint employment relationship is the fact that Adderley, although not its parent company ACI, works exclusively for Cablevision, albeit by its own choice. In determining that there was no triable issue of fact with respect to whether Comcast was a joint employer of the plaintiffs, the Jacobson court considered the following similar factors: (1) that Comcast does not provide technicians with uniforms, vehicles or tools, with the exception of a “star key” needed to unlock Comcast's boxes, and each contractor has its own premises out of which their technicians' work; (2) that although the contractors work primarily or exclusively for Comcast, “the absence of a single client base is not a proxy for joint employment because it is perfectly consistent with a legitimate subcontracting relationship,” Id. at * 7 (internal quotations and citation omitted); see also Zheng I, 355 F.3d at 72 (“Although * * * the absence of a broad client base is * * * [not] a perfect proxy for joint employment (because [it][is] * * * perfectly consistent with a legitimate subcontracting relationship), the factfinder can use th[is] readily verifiable fact [ ] as a starting point in uncovering the economic realities of a business relationship.”); and (3) that “the technicians only work for Comcast to the extent their (Contractor) is hired to do so,” Jacobson, 2010 WL 3769120, at * 7. *11 As noted above, the undisputed or uncontroverted facts of this case are virtually indistinguishable from the facts presented in Jacobson and I find the Jacobson court's well-reasoned findings and conclusions to be persuasive. Accordingly, I conclude that Cablevision is not the joint WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 347 of 520 PageID 983 Lawrence v. Adderley Industries, Inc., Not Reported in F.Supp.2d (2011) 2011 WL 666304 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 employer of plaintiff or Adderley's other technicians within the meaning of both the FLSA and the New York Labor Law. See also Santelices v. Cable Wiring, Inc., 147 F.Supp.2d 1313, 1326–8 (S.D.Fla.2001) (finding that the cable company was not a joint employer of a contractor's technician where it exercised only minimal oversight of the technician's performance to ensure quality control and there was no evidence, inter alia, that the cable company checked the technician's work on a daily basis, gave work commands or otherwise intervened in the performance of the technician's duties). Therefore, Cablevision's motion for summary judgment is granted and the complaint is dismissed in its entirety as against Cablevision. III. Conclusion For the reasons stated herein, Cablevision's motion for summary judgment is granted and the complaint is dismissed with prejudice as against Cablevision. The remaining parties are directed to appear with authority or with persons with authority to settle this matter in my courtroom located at 1010 Federal Plaza, Central Islip, New York, 11722, on March 4, 2011 at 11:00 a.m. for a pretrial conference. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2011 WL 666304 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 348 of 520 PageID 984 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Amponsah v. DirecTV, LLC, N.D.Ga., October 4, 2017 686 F.3d 1172 United States Court of Appeals, Eleventh Circuit. Leandre LAYTON, on behalf of himself and all those similarly situated, Plaintiff–Appellant, v. DHL EXPRESS (USA), INC., Defendant–Appellee, Sky Land Express, Inc., et al. Defendants. No. 11–12532. | July 9, 2012. Synopsis Background: Driver employed by contractor used by carrier to deliver packages filed collective action against carrier under Fair Labor Standards Act (FLSA), seeking unpaid overtime compensation. Collective action was conditionally certified. The United States District Court for the Northern District of Alabama, 2:08-cv-01542- WMA, William M. Acker, Jr., J., granted carrier summary judgment. Driver appealed. [Holding:] The Court of Appeals, Wilson, Circuit Judge, held that carrier was not joint employer of drivers. Affirmed. West Headnotes (6) [1] Labor and Employment Employment relationship Labor and Employment Suffering or permitting to work In order to determine whether entity “suffer[s] or permit[s]” an individual to work, and thus “employs” that individual under FLSA, court asks if, as a matter of economic reality, the individual is dependent on the entity. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). 13 Cases that cite this headnote [2] Labor and Employment Joint or multiple employers In determining whether there was joint employment relationship under FLSA, court would consider: (1) nature and degree of control of workers; (2) degree of supervision, direct or indirect, of work; (3) right, directly or indirectly, to hire, fire, or modify employment conditions of workers; (4) power to set pay rates or methods of payment; (5) preparation of payroll and payment of wages; (6) ownership of facilities where work occurred; (7) workers' performance of specialty job integral to the business; and (8) investment in equipment and facilities. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). 47 Cases that cite this headnote [3] Labor and Employment Joint or multiple employers Question in “joint employment” cases under FLSA is not whether worker is more economically dependent on the independent contractor or the alleged employer, with the winner avoiding responsibility as employer; focus of each inquiry must be on each employment relationship as it exists between worker and party asserted to be joint employer. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). 28 Cases that cite this headnote [4] Labor and Employment Joint or multiple employers Labor and Employment Persons in particular employments Carrier was not joint employer, under FLSA, of drivers employed by contractor used by carrier to deliver packages; business decisions by carrier that incidentally impacted length Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 349 of 520 PageID 985 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 of drivers' workdays did not evidence “overly active” role in oversight of drivers, scanners that collected information about package locations did not equate to employer-like supervision, carrier had minimal involvement with employment process, carrier had no power to set drivers' pay rates or payment methods, carrier was not involved with payment of drivers, contractor owned the delivery vans, drivers performed most of their work away from carrier's facilities and supervision, and both carrier and contractor made significant investments in facilities and equipment. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). 4 Cases that cite this headnote [5] Labor and Employment Joint or multiple employers Control arises, for purpose of determining whether joint employment relationship exists under FLSA, when purported joint employer goes beyond general instructions and begins to assign specific tasks, to assign specific workers, or to take overly active role in oversight of the work. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). 25 Cases that cite this headnote [6] Labor and Employment Joint or multiple employers Purported employer takes overly active role in oversight of work, as would support finding of joint employment relationship under FLSA, when it decides such things as (1) whom and how many employees to hire; (2) how to design employees' management structure; (3) when work begins each day; (4) when laborers shall start and stop their work throughout the day; and (5) whether laborer should be disciplined or retained. Fair Labor Standards Act of 1938, § 3(d), 29 U.S.C.A. § 203(d). 8 Cases that cite this headnote Attorneys and Law Firms *1173 Marc N. Garber, Alan Howard Garber, The Garber Law Firm, PC, Marietta, GA, Roderick T. Cooks, Lee David Winston, Winston Cooks, LLC, Birmingham, AL, for Plaintiff–Appellant. Devand Anthony Sukhdeo, TerRance Q. Woodard, Jackson Lewis, LLP, Miami, FL, Beverly P. Baker, Christopher W. Deering, James A. Patton, Jr., Ogletree, Deakins, Nash, Smoak & Stewart, PC, Veronica L. Merritt, Law Office of Veronica L. Merritt, Steven Michael Stastny, Jackson Lewis, LLP, Jonice M. Vanterpool, Hand Arendall, LLC, Birmingham, AL, for Defendant–Appellee. Appeal from the United States District Court for the Northern District of Alabama. Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges. Opinion WILSON, Circuit Judge: Leandre Layton, on behalf of himself and the similarly- situated members of his conditionally-certified class (collectively, “Drivers”), appeals the district court's grant of summary judgment in favor of DHL Express, Inc. (“DHL”) on his claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. After a thorough examination of the realities of the economic relationship between Drivers and DHL, we affirm on the grounds that DHL is not a joint employer of Drivers. I. DHL is a provider of shipping and logistic services. In some parts of the country, DHL hires third- party contractors who employ couriers to deliver DHL's packages. Between 2005 and 2009, DHL utilized Sky Land Express, Inc. (“Sky Land”) as such a contractor in Alabama. Sky Land worked out of three warehouse locations in the state: Birmingham, Jasper, and Tuscaloosa. The relationship between DHL and Sky Land was governed by a Cartage Agreement that stated that Sky Land was an independent contractor of DHL and specified Sky Land's contractual duties. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 350 of 520 PageID 986 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Drivers were employed by Sky Land and served mainly as delivery couriers, although some also acted as supervisors, dispatchers, and shuttle drivers. Sky Land owned the vehicles that Drivers used to deliver packages; DHL owned the warehouse facilities and all other equipment. Every morning, DHL had packages delivered to the Birmingham warehouse. Drivers could not begin work until a DHL employee informed them that those packages had been received and coded and were ready for pick- up. After receiving the go-ahead, Drivers sorted, scanned, and loaded the packages. Sky Land leased the necessary scanners from DHL. As Drivers *1174 loaded their vehicles at the warehouse, a DHL employee would often inspect Drivers' vehicles and uniforms to ensure that they conformed to the standards specified in the Cartage Agreement. The uniforms and the vehicles bore the names of both DHL and Sky Land. Drivers delivered some packages straight from the Birmingham warehouse to customers; the rest of the packages were shuttled to the Tuscaloosa and Jasper warehouses, retrieved by Drivers, and then delivered. Drivers spent the majority of their days making pick-ups and deliveries in their vehicles. Throughout the day, DHL sent information regarding customer complaints, requests for re-deliveries, and other non-routine matters to Drivers. As Drivers worked, they used the scanners to log the time at which each package was picked up or delivered. When Drivers had completed their delivery routes for the day, they unloaded any remaining packages at one of the warehouses and returned their scanners to be charged overnight. At that time, the information that the scanner had collected during the day about package locations was transmitted to a DHL data server. On August 27, 2008, Layton filed a collective action under the FLSA for unpaid overtime compensation, naming DHL, Sky Land, and Gary Littlefield, the owner and president of Sky Land, as his joint employers and defendants to the suit. On June 22, 2009, the district court granted Layton conditional collective-action certification pursuant to 29 U.S.C. § 216(b). The conditionally-certified class included forty-nine delivery drivers who had worked for Sky Land in Alabama; the class period was June 22, 2006 through June 22, 2009. 1 1 An additional twenty-five persons have since opted- in to join the action as members of the conditionally- certified class. On October 22, 2010, DHL moved for summary judgment on the ground that it was not an employer of Drivers. On November 5, 2010, Sky Land and Littlefield moved for summary judgment, claiming that (1) the FLSA's Motor Carrier Act Exemption (“MCE”) made Drivers ineligible for overtime compensation and (2) one member of the conditionally-certified class fell within the executive exemption to the FLSA. On November 16, 2010, DHL filed an untimely motion to join and adopt Sky Land and Littlefield's motion. On December 3, 2010, Layton, Sky Land, and Littlefield jointly moved to dismiss Sky Land and Littlefield as defendants. Three days later, the district court granted the motion, dismissed Sky Land and Littlefield and ordered their motion withdrawn, and denied DHL's motion to adopt. On January 12, 2011, the district court denied DHL's motion for summary judgment. Then, on February 15, 2011, the district court sua sponte vacated its order denying DHL's request to join Sky Land and Littlefield's motion to dismiss. Subsequently, on May 3, 2011, the district court granted summary judgment for DHL, finding that (1) the “dismissal of Sky Land effectively eliminated [Plaintiff class members'] claim against DHL” and (2) Plaintiff class members fell within the MCE and were thus not able to assert overtime pay claims. The district court later amended the order to add an additional reason for granting the motion: DHL did everything it could possibly do to relate to Sky Land only as an “independent contractor[.”] The contract with Sky Land allowed DHL to exercise only the minimal supervision necessary to monitor compliance with the contract. The undisputed facts lead to the conclusion that if plaintiffs were employed by anybody, they were employed by Sky *1175 Land, the entity that they ostentatiously dismissed as a defendant, for reasons this court can only guess at. DHL WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 351 of 520 PageID 987 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 was not an employer, much less a joint employer. Layton now appeals the district court's grant of summary judgment. II. We review de novo a district court's grant of summary judgment. Vector Prods., Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316, 1318 (11th Cir.2005) (per curiam). We can affirm a grant of summary judgment on grounds other than those relied upon by the district court. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1354 (11th Cir.2009). In reviewing a grant of summary judgment, we resolve all ambiguities and draw reasonable factual inferences from the evidence in the non-movant's favor. Rice–Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir.2000). Therefore, throughout this opinion we have presented all evidence in the light most favorable to Layton. III. [1] The FLSA defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). An entity “employs” a person under the FLSA if it “suffer[s] or permit[s]” the individual to work. Id. § 203(g). In order to determine whether an alleged employer “suffer[s] or permit[s]” an individual to work, we ask “if, as a matter of economic reality, the individual is dependent on the entity.” Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996) (quoting Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936–37, 6 L.Ed.2d 100 (1961)). An employee may have more than one employer, and “whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the act depends upon all the facts in the particular case.” 29 C.F.R. § 791.2(a). A joint- employment relationship will generally be found to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Id. § 791.2(b) (footnotes omitted). In this circuit, many joint-employment FLSA claims have arisen in cases also asserting a joint-employment relationship under the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. § 1801 et seq. Because the AWPA defines the term “employ” by reference to the FLSA and because the AWPA regulations provide more detailed guidance regarding the definition of joint employer, much of our caselaw expanding upon the definition of joint employment has relied upon the AWPA regulations. [2] For example, in Aimable v. Long & Scott Farms, a farm labor contractor recruited migrant farm workers to harvest crops for a property owner. 20 F.3d 434, 437 (11th Cir.1994). The farm workers then brought FLSA and AWPA claims against both the contractor and the property owner as joint employers. Id. at 437. The district court determined that the contractor was, in fact, an employer, and the only question on appeal was whether the *1176 property owner was also an employer. Id. In evaluating the existence of an employment relationship, we looked at eight factors. We drew the first five factors from regulations relating to the AWPA: [1] The nature and degree of control of the workers; [2] The degree of supervision, direct or indirect, of the work; [3] The power to determine the pay rates or the methods of payment of the workers; [4] The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; [5] Preparation of payroll and the payment of wages. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 352 of 520 PageID 988 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 See id. at 438 (quoting 29 C.F.R. § 500.20(h)(4)(ii)). 2 We derived factors six and seven from caselaw: (6) ownership of the facilities where work occurred, and (7) performance of a specialty job integral to the business. See id. at 439, 444 (drawing upon Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (“Rutherford”) and Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.1973)). A final factor —investment in equipment and facilities—we deemed irrelevant if one were comparing the investment by the workers versus the land owner. Id. at 443. However, we did find it worthwhile to evaluate the relative investments of the land owner and the contractor because such an analysis might shed light on whether the workers were economically dependent on the land owner. Id. When discussing Aimable in a subsequent case, we definitively stated that the investments of the purported employer and the contractor should be considered as the eighth factor of the joint-employment test. Antenor, 88 F.3d at 937. 2 Judge Easterbrook has described the AWPA regulations as “offer [ing] a way to think about the subject [of joint employment] and not an algorithm.” Reyes v. Remington Hybrid Seed Co., 495 F.3d 403, 408 (7th Cir.2007). In Aimable, we also found three factors to be irrelevant to our analysis: (1) the opportunity for profit and loss, (2) permanency and exclusivity of employment, and (3) the degree of skill required to perform the job. 20 F.3d at 443–44. We explained that these three factors only distinguished whether one was an employee or an independent contractor. See id. Because it had been determined that the farm workers were employees of the contractor, there was no need to evaluate whether hallmarks of an independent-contractor relationship existed. See id. In 1997, the Department of Labor amended the AWPA regulations to further clarify the definition of joint employment under the AWPA. Following the amendments, we were confronted with AWPA claims in Charles v. Burton, 169 F.3d 1322 (11th Cir.1999) (per curiam), and we adapted the eight-factor test laid out in Aimable to reflect the new guidance offered by the regulations. See, e.g., 169 F.3d at 1332 (“[T]he Aimable court found that an analysis of this factor fails to aid in this determination. We, however, choose to analyze this factor, since it is included in the AWPA's regulations.” (internal citations omitted)). Charles, incorporating the amendments to the AWPA regulations, set out a seven-factor test for evaluating whether an employment relationship exists: (1) whether the agricultural employer has the power, either alone or through the FLC [farm labor contractor], to direct, control or supervise the workers or the work performed (such control may be either direct or indirect, taking into account the nature of the work performed and a reasonable degree of contract performance oversight and coordination *1177 with third parties); (2) whether the agricultural employer has the power, either alone or in addition to another employer, directly or indirectly, to hire or fire, modify the employment conditions, or determine the pay rates or the methods of wage payment for the workers; (3) the degree of permanency and duration of the relationship of the parties, in the context of the agricultural activity at issue; (4) the extent to which the services that the workers rendered are repetitive, rote tasks requiring skills that are acquired with relatively little training; (5) whether the activities that the workers performed are an integral part of the overall business operation of the agricultural employer; (6) whether the work is performed on the agricultural employer's premises, rather than on premises that another business entity owns or controls; and (7) whether the agricultural employer undertakes responsibilities in relation to the workers that employers commonly perform, such as preparing and/or making payroll records, preparing and/or issuing pay checks, paying FICA taxes, providing workers' compensation WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 353 of 520 PageID 989 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 insurance, providing field sanitation facilities, housing or transportation, or providing tools and equipment or materials required for the job (taking into account the amount of the investment). 169 F.3d at 1329. In fashioning this test, some of the Aimable factors were combined and new factors were added. Layton urges us to consider all the factors stated in Charles, including those that were not laid out in Aimable. We decline that invitation. The court in Charles was considering only AWPA claims, not FLSA claims; therefore, Charles does not dictate the factors we must utilize in our evaluation of FLSA claims. 3 Although the AWPA defines joint employment by reference to the definition provided in the FLSA, that does not mean that the reverse holds true—that joint employment under the FLSA is invariably defined by AWPA regulations. Because Aimable crafted a definition of “joint employer” that applied to both AWPA and FLSA claims and that test has not been disrupted by a case involving FLSA claims or amendments to the FLSA, we must follow the eight- factor test of Aimable. 3 Although Charles's joint-employment test is not binding precedent here, we reference Charles and its progeny as persuasive authority to the extent that those cases help us apply the eight factors of Aimable. [3] In applying the eight-factor test, we are guided by a number of principles: First, the question in “joint employment” cases is not whether the worker is more economically dependent on the independent contractor or the [alleged employer], with the winner avoiding responsibility as an employer .... [T]he focus of each inquiry must be on each employment relationship as it exists between the worker and the party asserted to be a joint employer. Second, no one factor is determinative. As we explained in Aimable, the existence of a joint employment relationship depends on the economic reality of all the circumstances. Third, the factors are used because they are indicators of economic dependence. They are aids—tools to be used to gauge the degree of dependence of alleged employees on the business to which they are connected .... Thus, the weight of each factor depends on the light it sheds on the [ ]workers' economic dependence (or lack thereof) on the alleged employer, which in turn depends on the facts of the case. *1178 Fourth, a joint employment relationship is not determined by a mathematical formula .... The purpose of weighing the factors is not to place each in either the contractor or the [alleged employer's] column, but to view them qualitatively to assess the evidence of economic dependence, which may point to both. Fifth, in considering a joint-employment relationship, we must not allow common-law concepts of employment to distract our focus from economic dependency. Antenor, 88 F.3d at 932–33 (quotation marks and citations omitted). IV. A. [4] We now turn to examine the economic realities of the relationship between DHL and Drivers, using the eight factors of Aimable as a guide. 1. The nature and degree of DHL's control of Drivers [5] [6] “Control arises ... when the [purported joint employer] goes beyond general instructions ... and begins to assign specific tasks, to assign specific workers, or to take an overly active role in the oversight of the work.” Aimable, 20 F.3d at 441 (explaining that although an agricultural company's decisions about what to plant and how much land to use showed “abstract” control over farm workers, that type of control did not constitute control for FLSA purposes). A purported employer takes an overly active role in the oversight of work “when it decides such things as (1) for whom and how many employees to hire; (2) how to design the employees' management structure; (3) when work begins each day; (4) when the laborers shall start and WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 354 of 520 PageID 990 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 stop their work throughout the day; and (5) whether a laborer should be disciplined or retained.” Martinez– Mendoza v. Champion Int'l Corp., 340 F.3d 1200, 1209– 10 (11th Cir.2003) (quotation marks and citation omitted) (discussing “nature and degree of control” factor as set forth in Aimable). When assessing the nature and degree of control, our “focus is more properly limited to specific indicia of control.” Aimable, 20 F.3d at 440. Layton makes much of the fact that DHL made business decisions that directly impacted the length of Drivers' workdays, arguing that DHL de facto controlled Drivers' hours. For example, DHL dictated what time the packages were available for pick-up each morning, thereby limiting how early Drivers' workdays could begin. Additionally, DHL occasionally had erratic pick- up orders to which Drivers had to respond, resulting in Drivers working longer hours. However, we find this indirect type of control to be more akin to the “abstract” control present in Aimable than the type of control exercised by an employer. DHL may have incidentally impacted Drivers' working conditions, but we do not find that DHL's conduct evidenced an “overly active” role in the oversight of Drivers. DHL had certain objectives —having its packages delivered on time, serving its customers—that Sky Land, and therefore Drivers, were tasked with accomplishing. DHL did not involve itself with the specifics of how those goals would be reached—it did not apportion tasks to individuals, specify how many individuals should be assigned to each delivery route, or structure the chain of command among Drivers. Overall, this factor weighs against a finding of joint employment because DHL did not exert control as an employer would have. 2. DHL's degree of supervision, direct or indirect, of Drivers' work Supervision can be present regardless of whether orders are communicated directly to the alleged employee or indirectly *1179 through the contractor. Aimable, 20 F.3d at 441. “[I]nfrequent assertions of minimal oversight do not constitute the requisite degree of supervision.” Martinez–Mendoza, 340 F.3d at 1211 (discussing “degree of supervision” factor set forth in Aimable). Drivers spent the majority of their days by themselves in their trucks, away from DHL facilities and DHL employees. However, Layton contends that DHL still supervised them in a number of ways. First, Drivers were responsible for loading packages onto their trucks at DHL's warehouse, and DHL managers oversaw that process, at times criticizing Appellants' loading techniques. Second, DHL audited Drivers' vehicles and uniforms to ensure that they complied with the standards stated in the Cartage Agreement. Third, DHL communicated with Drivers via the scanners if a non- routine situation occurred and Drivers were needed to re- deliver a package or respond to a customer complaint submitted to DHL. We agree that these actions evidence a small amount of supervision. However, we disagree with Layton's contention that DHL “supervised” Drivers because the scanners collected information about package locations; we do not think that this type of data collection equates to employer-like supervision. The scanners did not stream information to DHL in a way that would simulate the real-time monitoring of an actual supervisor. Instead, the scanners sent aggregate information to DHL's data server at the close of the day. Furthermore, the scanners only provided data about package location. Although such information indirectly commented on Drivers' work—delivery speed is a metric that could be relevant to evaluating a delivery driver's performance —this type of monitoring is dissimilar from standard employer supervision and has little probative value for the purposes of determining joint employment. As we stated above, DHL engaged in a limited amount of monitoring at the warehouse, but Drivers were basically unsupervised while completing their most essential job function which took up the majority of the workday—making deliveries. Overall, this factor is not strongly probative of joint employment. 3. DHL's right, directly or indirectly, to hire, fire, or modify Drivers' employment conditions DHL's only involvement with Sky Land's hiring process was that DHL stipulated in the Cartage Agreement that all persons hired to deliver DHL packages had to pass a basic background check. DHL did not participate in the actual hiring or firing of any employees. Furthermore, the only way in which DHL modified Drivers' employment conditions was by making business decisions that impacted Drivers' hours, as discussed above. See Antenor, 88 F.3d at 935 (finding relevant the ability to dictate when the workday begins in examining whether one has the right to modify workers' hours). Because DHL had minimal involvement with the employment process, this factor weighs against a finding of joint employment. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 355 of 520 PageID 991 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 4. DHL's power to set Drivers' pay rates or payment methods Layton concedes that DHL had no power to set Drivers' pay rates or payment methods; Sky Land alone had this ability. Therefore, this factor weighs against a finding of joint employment. 5. DHL's preparation of payroll and payment of the Drivers' wages Layton admits that this factor also favors DHL because DHL was never involved with the payment of Drivers. Sky Land independently dealt with its payment obligations to Drivers. This factor weighs against a finding of joint employment. *1180 6. DHL's ownership of the facilities where the work occurred We stated in Antenor that ownership of the farm laborers' worksite was relevant to our inquiry because “without the land, the worker might not have work, and because a business that owns or controls the worksite will likely be able to prevent labor law violations, even if it delegates hiring and supervisory responsibilities to labor contractors.” 88 F.3d at 937. In the instant case, Drivers spent a small part of their days sorting, scanning, and loading packages in warehouses owned by DHL. However, Drivers worked the vast majority of the time in delivery vans owned by Sky Land. Layton argues that it is relevant to the “ownership” determination that DHL paid Sky Land a stipend of $38 per day to cover maintenance, fuel, and insurance costs of the vehicles. We must disagree under the facts of this case and in light of the purposes of this test. Ownership is relevant because a landowner is thought to have some knowledge of and control over what happens on his land. See id. It is not clear how paying Sky Land a stipend could enhance DHL's ability to prevent labor law violations. See id. Ownership is also relevant as an indicator of economic independence. See id. The fact that Sky Land owned the vans—regardless of whether fuel and maintenance costs were reimbursed—demonstrates that Sky Land, and thus Drivers, could have worked as couriers for other companies. Because Drivers were not dependent on DHL to provide vans so that they could accomplish their core duty—delivering packages— we find that this factor weighs against a finding of joint employment. 7. Drivers' performance of a specialty job integral to the business This factor is derived from Rutherford, in which the Supreme Court found that meat boners recruited by a labor contractor to work at a slaughterhouse were, under the FLSA, joint employees of the slaughterhouse. 331 U.S. at 729, 67 S.Ct. at 1476. Although the workers brought their own tools and were labeled as independent contractors, see id. at 724–25, 67 S.Ct. at 1474, the Court focused on the fact that the workers completed one process in the middle of a series of interdependent steps at the slaughterhouse. The facts led the Court to conclude that the workers “did a specialty job on the production line” that was “more like piecework than an enterprise that actually depended for success upon the initiative, judgment or foresight of the typical independent contractor.” Id. at 730, 67 S.Ct. at 1477. Because the workers were “part of the integrated unit of production” of the slaughterhouse, the Court found them to be employees of the establishment. Id. at 729, 67 S.Ct. at 1476. We explained in Antenor that “a worker who performs a routine task that is a normal and integral phase of the [alleged employer]'s production is likely to be dependent on the [alleged employer]'s overall production process.” 88 F.3d at 937. Here, Drivers certainly performed a crucial task for DHL. Yet we are hesitant to say that their role was “analogous to employees working at a particular position on a larger production line.” Id. (discussing similarities between meat boners in Rutherford and crop pickers participating in farm operations). Drivers performed most of their work away from DHL's facilities and supervision; they did not work side-by-side with other DHL employees. Drivers also operated vehicles not owned by DHL, and they were not contractually restricted from using those vehicles to serve other companies needing delivery services. On balance, we find that this factor does not strongly support a conclusion that a joint- employment relationship exists. *1181 8. DHL's and Sky Land's relative investment in equipment and facilities We consider this factor because workers are more likely to be economically dependent on the person who supplies WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 356 of 520 PageID 992 Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172 (2012) 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 the equipment or the facilities. Id. Here, Sky Land owned the delivery vans. DHL owned the warehouses where packages were received and stored, as well as all other equipment that Drivers used. Because both Sky Land and DHL made significant investments in facilities and equipment, this factor does not aid our joint- employment inquiry. See Aimable, 20 F.3d at 443 (stating that because alleged employer and labor contractor both made investments, this factor neither exonerated the purported employer nor demonstrated that employees were dependent on employment). B. We believe it worthwhile to reiterate that the eight factors of Aimable are only useful to us to the extent that they shed light on the existence of economic dependence. See Antenor, 88 F.3d at 929. Our undertaking is oriented by the desire to discover the economic reality of the total circumstances, and the eight-factor test is merely a template for reaching that goal—a template more useful in certain cases than in others. Here, DHL bore no financial or managerial responsibility for Drivers. For the most part, DHL simply tasked Sky Land, and thus Drivers, with macro-level goals—deliver the packages, respond to customer complaints—and provided little guidance regarding the manner by which to execute daily tasks. Sky Land alone held the power to hire, fire, and pay Drivers. Sky Land alone owned the vans that allowed Drivers to complete their essential job function, and because Sky Land's contract with DHL was not exclusive, Sky Land could have served other companies using those vehicles. We find that the totality of the economic circumstances indicates that Drivers were not economically dependent upon DHL, and we therefore affirm the district court on the grounds that DHL was not a joint employer of Drivers. AFFIRMED. All Citations 686 F.3d 1172, 162 Lab.Cas. P 36,035, 19 Wage & Hour Cas.2d (BNA) 513, 23 Fla. L. Weekly Fed. C 1277 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 357 of 520 PageID 993 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 25 F.Supp.3d 1352 United States District Court, N.D. Alabama, Southern Division. Darrius LIKES, Plaintiff, v. DHL EXPRESS, Defendant. Case No. 2:10–CV–2989–VEH. | Signed June 10, 2014. Synopsis Background: Employee of independent contractor for company that provided shipping services brought action against company alleging violations of Worker Adjustment and Retraining Notification Act (WARN) in connection with employee's termination in mass layoff when company decided to discontinue express domestic delivery. Company moved for summary judgment. [Holding:] The District Court, Virginia Emerson Hopkins, J., held that contractors could not be aggregated into “single site of employment” for purposes of WARN. Motion granted. West Headnotes (2) [1] Labor and Employment Multiple sites Employees who were hired and then laid off by separate delivery contractors that were geographically based out of the same facility provided by a shared secondary employer could not be aggregated into a “single site of employment” for purposes of Worker Adjustment and Retraining Notification Act (WARN); contractors had separate management, distinct workforces, and independent aspects of operations. Worker Adjustment and Retraining Notification Act, § 2(a)(3)(B), 29 U.S.C.A. § 2101(a)(3)(B); 20 C.F.R. § 639.3(i). 1 Cases that cite this headnote [2] Labor and Employment Multiple sites Under the “truly unusual organizational situation” exception to Worker Adjustment and Retraining Notification Act's (WARN) single site of employment definition, two or more apparently separate sites may be deemed a “single site” if other criteria set out by the Department of Labor (DOL) do not reasonably apply. Worker Adjustment and Retraining Notification Act, § 2(a)(3)(B), 29 U.S.C.A. § 2101(a)(3)(B); 20 C.F.R. § 639.3(i) (8). 1 Cases that cite this headnote Attorneys and Law Firms *1352 Courtney L. Calhoun, Lee David Winston, Roderick T. Cooks, Winston Cooks LLC, Birmingham, AL, for Plaintiff. *1353 Shannon L. Miller, Jackson Lewis P.C., Birmingham, AL, Devand A. Sukhdeo, Jackson Lewis P.C., Miami, FL, for Defendant. MEMORANDUM OPINION VIRGINIA EMERSON HOPKINS, District Judge. I. INTRODUCTION Plaintiff Darrius Likes (“Mr. Likes”) initiated this employment dispute arising under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101–2109 (“WARN”) against Defendant DHL Express (“DHL”) on November 5, 2010. (Doc. 1). On December 21, 2012, 288 F.R.D. 524 (N.D.Ala.2012), the court denied Mr. Likes's request to have his lawsuit certified as a class action with him serving as the class representative under Rule 23(b)(2) or (3) (Doc. 44) and, since then, the case has proceeded as an individual liability one only. 1 ... - - - --- Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 358 of 520 PageID 994 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Mr. Likes's complaint contains only one count. (Doc. 1 at 11–12 ¶¶ 50–59). More specifically, Mr. Likes contends that “DHL Express violated the WARN Act with respect to the plaintiff ... by failing to give 60 days advance notice as required prior to a mass lay-off or plant closing.” (Doc. 1 at 11 ¶ 51). Pending before the court is DHL's Motion for Summary Judgment (Doc. 56) (the “Motion”) filed on January 6, 2014. On January 6, 2014, DHL also filed several evidentiary materials in support of its Motion. (Docs. 57– 61). After obtaining multiple extensions of time, Mr. Likes filed his opposition (Docs. 66–68) to the Motion on March 11, 2014. On April 25, 2014 (and also after securing an extension), DHL followed with its reply. (Doc. 71). Finally, on April 25, 2014, Mr. Likes filed a corrected version of his opposition brief. (Doc. 72). Accordingly, the Motion is now under submission, and, for the reasons explained below, is due to be granted in part and otherwise termed as moot. II. FACTUAL BACKGROUND 2 DHL's Business Model And Operations DHL provides shipping services through a global network of gateways, hubs, warehouses, and terminals to administer customer needs. AF No. 1.1 3 Express delivery *1354 is one of DHL's many business lines. AF No. 1.2. Based on the demands within its express delivery business, DHL engages independent contractors to facilitate parcel pick-up and delivery in specifically defined geographic territories. Id. Those companies with whom DHL contracts have no corporate affiliation, no common owners, no common officers or directors, and no common decision-makers with DHL. AF No. 4. Up until roughly the first part of 2009, DHL offered express delivery services within the United States. As a result of economic losses totaling an estimated eleven billion dollars experienced over an approximate five-year span from 2003 to 2008 (Doc. 66–2 at 47 at 185), 4 DHL decided to cease its domestic express delivery services, which winding down process played out over the course of a number of months. AF No. 23. When domestic delivery was still a component of its express delivery business, DHL utilized independent contractors in over 86% of its delivery areas within the United States. AF No. 1.2; (see also Doc. 67–3 at 3 (DHL's substantive response to interrogatory No. 3)). 5 Separate but, for the most part, uniformly worded, cartage agreements (“CAs”) govern the commercial relationship between DHL and its contractors. Such contracts require that all contractors: (i) wear DHL branded clothing consistent with DHL's trademark guidelines; (ii) drive vehicles with DHL branded logos when delivering DHL packages; and (iii) refrain from making any non-DHL deliveries when wearing DHL branded clothing or driving DHL branded trucks. (Doc. 59–1 at 5 § 3.5.3; id. at 6 § 3.14). 6 Bill Talon (“Mr. Talon”), DHL's current head of Ground Operations for the Americas Division, recalled that, prior to ceasing its domestic express delivery operations, DHL only permitted two out of its three hundred contractors to make non-DHL deliveries. (Doc. 66–3 at 12 at 43–44). 7 In addition to the CAs, domestic contractors were asked to execute termination and transition agreements (“TTAs”) when DHL was winding down its express delivery services within the United States. (Doc. 57–1 at 2–8). 8 These TTAs subsumed the CAs as the governing document between DHL and its domestic contractors and included provisions for funding to the *1355 contractors for courier wages, returning DHL branded products, covering insurance payments, and protecting DHL's brand. Id. DHL's Birmingham Contractors and Mr. Likes's Employment Mr. Likes was employed as a delivery courier by Wood Air Freight, Inc. (“WAF”), one of DHL's domestic contractors that operated out of a facility located in Birmingham. AF No. 5. DHL contracted with two other independent companies—Sky Land Express, Inc. (“Sky Land”) and Territory Reps, Inc. (“Territory Reps”)—who operated out of the same Birmingham facility as WAF. AF No. 8.1. WAF began operations in 1981 and had its own set of employee policies and procedures in place for much of that time. AF No. 7.2. WAF's owner and president - -- - - - -- -- --- - -- - - - -- -- - --- - -- -- -- - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 359 of 520 PageID 995 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 was Thomas Wood (“Mr. Wood”) who, in addition to overseeing the company's day-to-day operations, was the person solely responsible for negotiating the terms of all contracts between WAF and DHL. AF No. 7.1. WAF first contracted to provide pick-up and delivery services for DHL in 2005, and their contractual relationship lasted until early 2009. AF No. 7.3. During this time period, 100% of WAF's revenues came from its relationship with DHL. (Doc. 61–1 at 13 at 47). 9 DHL never employed Mr. Likes and his limited base of knowledge concerning WAF's commercial dealings with DHL derives exclusively from his employment with WAF as a delivery courier. AF Nos. 6.1, 6.2. In his position, Mr. Likes spent 90% of his day alone in his delivery vehicle. AF No. 6.2. Further, Mr. Likes had no responsibility related to any contract negotiations between WAF and DHL, did not supervise other WAF employees, spent “limited time” interacting with other WAF employees, and expended “even less time” coming into contact with employees of other independent contractors. AF No. 6.3. DHL and WAF had a CA in place until that agreement (Doc. 59–2 at 1–24) 10 was subsumed by their TTA dated November 20, 2008. (Doc. 57–1 at 2–8).Through the CA, DHL and WAF expressly intended to and did enter an independent contractor relationship. AF No. 11.1. During its relationship with DHL, WAF's handling of its obligations under the CA was in WAF's sole discretion although the CA did contain detailed terms regarding compliance with certain contract performance measures applicable to the use of DHL branded uniforms and vehicles. AF No. 15; (see also Doc. 59–1 at 3 § 3.1 (referencing DHL requirements regarding contractor's provision of cartage services)). Under the CA, WAF was solely responsible for hiring its own workforce and for handling all other employment- related issues, including disciplining its employees and processing payroll checks. (See Doc. 61–1 at 4 at 12 (Mr. Wood's answering affirmatively that he chose who WAF hired, decided how many WAF hired, and determined how to assign any WAF hirees); id. at 5–6 at 16– 17 (Mr. Wood's confirming that he set the rates of compensation and ensured the processing of payroll for all WAF employees)). WAF also addressed any customer complaints. AF No. 19. However in contrast to the CA, under the TTA, DHL assisted in the attrition of *1356 employees, established a formula for payment of wages, and required proof of couriers' termination for contractors to collect their payments. (Doc. 57–1 at 4 ¶ 6.d; see also Doc. 66–2 at 65 at 256 (“As a result of that, we decided to think about some compensation model to allow them the opportunity to continue their business moving forward, as well as qualify a plan to help them attrit their staff, their couriers from the organization, their organization, as they saw fit.”)). As part of the TTA, WAF identified that its workforce included 20 full-time employees and 1 part-time employee. AF No. 25. One component of the TTA was the Contractor Employee Retention Program (“CERP”). AF No. 27.1. Through the CERP, DHL sought to protect its customer relationships and its brand name by ensuring that independent contractor companies did not lose focus on their DHL contracts during such a period of uncertainty. AF No. 27. The CERP resulted from negotiations with independent contractor companies who approached DHL to identify a mutually beneficial solution to concerns related to the restructuring of DHL's domestic express delivery services. AF No. 28. Based on information provided by WAF to DHL in March 2009, 11 WAF made CERP payments to a total of 19 employees, including Mr. Likes. AF No. 30; (Doc. 57–3 at 4). 12 Based upon the applicable CERP payment schedule, 1 of the 19 employees paid was a part-time worker, leaving 18 full-time compensated positions. (See Doc. 57–3 at 4 (reflecting 1 employee receiving $1,200 CERP payment signifying compensation for part-time labor)). While Mr. Likes lacks direct knowledge of how many employees were laid off by DHL's other Birmingham- based contractors during the domestic express delivery winding down process (see Doc. 66–1 at 3 ¶ 6 (“Including the drivers from the other contractors, and the DHL station agents, I estimate there were in excess of 50 persons working in the Birmingham terminal in the handling of packages exclusively for [DHL].”) (emphasis added)), 13 the CERP documentation applicable to Sky Land shows that 26 Birmingham-based full-time employees and 3 management employees were scheduled to receive wind- down payments. (Doc. 66–1 at 6, 8). Additionally, the documentation applicable to Territory Reps reflects that 17 Birmingham-based full-time employees and 5 management employees were eligible to receive CERP - - -- --- - -- --- --- -- -- - - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 360 of 520 PageID 996 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 compensation. (Doc. 66–1 at 7). Aggregating those anticipated full-time employees of other Birmingham- based contractors with those full-time ones actually laid off by WAF equals 69 (29 + 22 + 18 = 69). (See also Doc. 66–1 at 11–12 (substantiating DHL's “CARTAGE PAYABLES” for WAF, Sky Land, and Territory Reps)). 14 III. STANDARD Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment *1357 as a matter of law. Fed.R.Civ.P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to ‘come forward with specific facts showing that there is a genuine issue for trial.’ ” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir.2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Finally “[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense.” International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir.2003)). IV. ANALYSIS DHL's Motion presents three primary contentions: (i) Mr. Likes is precluded from pursuing his WARN claim against DHL because another district court has previously concluded that DHL was not his employer under the Fair Labor Standards Act (Doc. 56 at 17); 15 (ii) even if the res judicata and collateral estoppel doctrines do not apply, summary judgment still is appropriate because the evidence shows that DHL was not Mr. Likes's employer under 20 C.F.R. § 639.3(a)(2) (id. at 28); 16 and (iii) regardless of DHL's status as Mr. Likes's employer, Mr. Likes still cannot make a prima facie showing under WARN. (Id. at 44). For the reasons explained below, DHL's Motion is due to be granted as to its third ground and otherwise termed as moot. A. WARN Prima Facie Elements In International Union, United Mine Workers v. Jim Walter Resources, Inc., 6 F.3d 722 (11th Cir.1993), the Eleventh Circuit described the nature of a WARN claim as: WARN requires that an employer provide sixty days notice to workers before ordering a mass layoff. 29 U.S.C. § 2102(a). JWR argues that the layoff in question was not a mass layoff and, *1358 therefore WARN does not apply. WARN defines a mass layoff as a reduction in force that (B) results in an employment loss at the single site of employment during any 30–day period for- (i)(I) at least 33 percent of the employees (excluding any part-time employees); and (II) at least 50 employees (excluding any part-time employees); or (ii) at least 500 employees (excluding any part-time employees); ... 29 U.S.C. § 2101(a)(3)(B). The Union contends that JWR violated section 2101(a)(3)(B)(ii) because JWR laid off at least 500 employees from a single site of employment. The Union can satisfy the statutory requirement that at least 500 workers be laid off from a single site of employment only by aggregating the layoffs from three of the four mines. Jim Walter Resources, 6 F.3d at 724 (emphasis added). Thus, the crux of the summary judgment appeal in Jim Walter Resources turned upon the definition of the term “single site of employment” and its application in the context of mining operations. See id. at 727 (“The Union fails to demonstrate that any combination of three of the four mine sites should be considered together as a “single site of employment” under WARN.”). B. Mr. Likes Cannot Show That A Mass Layoff, Triggering WARN Notice Requirements, Occurred. --- --- - - - -- - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 361 of 520 PageID 997 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Assuming without deciding that neither res judicata, nor collateral estoppel, nor the absence of sufficient evidence to support DHL's status as Mr. Likes's employer under a single employer liability theory, 17 precludes Mr. Likes from pursuing his WARN claim, summary judgment in favor of DHL is still, nevertheless, appropriate. In particular, Mr. Likes lacks evidence from which a reasonable jury could conclude that 50 or more full-time employees were let go from a single site. Based solely upon the 18 full-time WAF employees that actually received CERP payments, Mr. Likes cannot satisfy WARN's mass layoff definition. See 29 U.S.C. § 2101(a)(3)(B)(i) (II) (defining mass layoff to mean an “employment loss” totaling “at least 50 employees (excluding any part-time employees)”). In an effort to overcome this statutory numerical obstacle, Mr. Likes urges this court to permit him to aggregate all the adversely affected employees working for DHL's Birmingham-based contractors as a WARN-covered “single site of employment.” WARN does not statutorily clarify what “single site of employment” means. DHL counters that, in the absence of a statutory definition for that term: [T]he DOL's interpretative regulations are informative as to what should and should not be considered a single site of employment. See 20 C.F.R. § 639.3(i). Specifically, the regulations provide that “[t]here may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within such a building. For example, an office building housing 50 different businesses will contain 50 single sites of employment. *1359 The offices of each employer will be its single site of employment.” 20 C.F.R. § 639.3(i)(2). This illustration—directly from the DOL regulations— applies here. Indeed, in interpreting this regulation, the Sixth Circuit confirmed that two plants only steps away from one another which were operated by the same employer did not constitute a single site of employment. See generally Salyer v. Universal Concrete Products, 940 F.2d 662 (6th Cir.1991). The Eleventh Circuit endorsed the reasoning in Salyer that “separate management, produc[tion of] different products, and [ ] separate workforces” is central to separate sites of employment. See Int'l Union, United Mine Workers v. Jim Walter Resources, Inc., 6 F.3d 722, 725 (11th Cir.1993). Applying the DOL illustration and case law to the present circumstance confirms that much more than operating out of the same facility is necessary to aggregate employees of different corporate entities into a single site of employment for purposes of WARN. Here, each of the three independent contractors had separate management, separate workforces, and serviced different delivery territories. See Likes Depo., 63:7–64:4.... Plaintiff can offer no evidence to dispute that each of the DHL independent contractors in Birmingham operated autonomously. Accordingly, there is little doubt that each independent contractor constituted its own “site of employment” under WARN, and not one large “single site” made up of all three independent contractors. (Doc. 56 at 47–49 (emphasis in original)). In Jim Walter Resources, the Eleventh Circuit affirmed the district court's decision on summary judgment that “none of JWR's four mine sites should be considered together as a ‘single site of employment under WARN.’ ” 6 F.3d at 726. As supporting evidence, the Eleventh Circuit pointed out: First, the mines are managed independently with a different Mine Manager, Assistant Mine Manager, Industrial Relations Supervisor, Safety Supervisor, and Strata Control Engineer at each mine. Second, the mines do not ordinarily share employees. While some exceptions exist, employees do not rotate among mine sites, nor do they work regularly at more than one mine. The hourly employees at the four mine sites are represented by four different union locals. Also, employees at one mine may not bid on a job vacancy at another mine; they may only bid on job vacancies at the mine in which they presently work. Third,.... Finally, each mine - - --- -- - - - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 362 of 520 PageID 998 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 has its own gate, parking lot, office building and bathhouse. Id. at 726 (footnote omitted). Additionally, in rejecting the Union's shared “operational purpose” contention, the Eleventh Circuit reasoned: While the phrase “operational purpose” is vague and undefined, it may imply that non-contiguous sites—at the very least—share some management and personnel. It clearly must mean more than “produce the same product.” The mines at issue all produce coal, but they do so independently of one another. Each mine's tonnage requirements are different, and the production of coal at one mine does not depend on the production of coal at another mine. Their “operational purposes,” beyond the production of coal, are not coextensive. Id. at 727; see also 20 C.F.R. § 939.3(i) (1992) (“For example, assembly plants which are located on opposite sides of a town and which are managed by a single *1360 employer are separate sites if they employ different workers.”)(emphasis added). [1] While admittedly Jim Walter Resources addresses the application of WARN to a solitary employer working within the mining industry as opposed to multiple employers operating the same type of service-related businesses and sharing a common commercial venue provided by their shared unified employer, such as is the situation here, the precedent still provides useful insight into those factors which the Eleventh Circuit found to be particularly illustrative when evaluating a single site of employment theory, i.e., separate management, distinct workforces, and independent aspects of operations. See also id. (“The undisputed facts confirm that the day-to-day management and employee structures at the four mines are fundamentally distinct.”)(emphasis added). Further, when considering all these categories, only one outcome is apparent—DHL's Birmingham-based independent contractors without any management or workforce overlap, 18 simply by virtue of entering into similarly worded contractual agreements designed to protect DHL and its brand and utilizing the same DHL package facility, do not constitute a single site of employment under WARN. [2] Therefore, consistent with DOL interpretative regulations that separate employers conducting activities within a common area should not constitute a single site of employment, 20 C.F.R. § 639.3(i)(2), 19 persuasively guided by the Eleventh Circuit's reasoning in Jim Walter Resources and, in the absence of any countervailing binding precedent suggesting that employees who were hired and then laid off by separate delivery contractors that are geographically based out of the same facility provided by a shared secondary employer is a single site of employment to trigger WARN notice-related liability for that common employer, 20 *1361 DHL's Motion is granted on prima facie grounds. V. Conclusion Accordingly, for the reasons explained above, the Motion is due to be granted on the basis that Mr. Likes is unable to prima facially establish his WARN claim. Further, the remainder of the Motion is due to be termed as moot. The court will enter a separate final judgment order dismissing Mr. Likes's complaint with prejudice. FINAL JUDGMENT ORDER Pending before the court is Defendant DHL Express's (“DHL”) Motion for Summary Judgment (Doc. 56) (the “Motion”) filed on January 6, 2014. Consistent with this court's accompanying memorandum opinion entered on this date, the Motion is GRANTED on prima facie grounds only and is otherwise TERMED as MOOT. Further, Plaintiff's complaint is HEREBY DISMISSED WITH PREJUDICE. All Citations 25 F.Supp.3d 1352, 164 Lab.Cas. P 10,698, 38 IER Cases 905 - -- - - - -- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 363 of 520 PageID 999 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 Footnotes 1 On February 27, 2013, the Eleventh Circuit denied Mr. Likes's Petition for Permission to appeal this court's Rule 23 decision. (Doc. 49). 2 Keeping in mind that when deciding a motion for summary judgment the court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion, the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir.2007) (observing that, in connection with summary judgment, a court must review all facts and inferences in a light most favorable to the non- moving party).This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d 1320, 1328 (11th Cir.2007). Instead, the court has provided this statement simply to place the court's legal analysis in the context of this particular case or controversy. 3 The designation “AF” stands for admitted fact and indicates a fact offered by DHL that Mr. Likes has admitted in his written submissions on summary judgment, in his deposition testimony, or by virtue of any other evidence offered in support of his case. Under appendix II of the court's uniform initial order (Doc. 5) entered on February 14, 2011, “[a]ll statements of fact must be supported by specific reference to evidentiary submissions.” (Id. at 16). For Mr. Likes, more specifically, this means that “[a]ny statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based.” (Id. at 17). Consequently, whenever Mr. Likes has inadequately asserted a dispute over a fact that DHL has otherwise substantiated with an evidentiary citation, the court has reviewed the cited evidence and, if it in fact fairly supports DHL's factual assertion, has accepted DHL's fact. On the other hand, whenever Mr. Likes has adequately disputed a fact offered by DHL, the court has reviewed the evidence cited by Mr. Likes and, if it in fact fairly supports Mr. Likes's factual assertion, has accepted Mr. Likes's version. The court's numbering of admitted facts (e.g., AF No. 1) corresponds to the numbering of DHL's statement of undisputed facts as set forth in Doc. 56 and responded to by Mr. Likes in Doc. 72. A number following a decimal point corresponds to the particular sentence within the numbered statement of facts. For example, (AF No. 1.2) would indicate the second sentence of paragraph 1 of the DHL's Statement of facts is the subject of the court's citation to the record. 4 The first page references to Doc. 66–2 correspond with the court's CM/ECF numbering system and the second page references correspond with the numbering of the deposition transcript. 5 All page references to Doc. 67–3 correspond with the court's CM/ECF numbering system. 6 All page references to Doc. 59–1 correspond with the court's CM/ECF numbering system. 7 The first page references to Doc. 66–3 correspond with the court's CM/ECF numbering system and the second page references correspond with the numbering of the deposition transcript. 8 All page references to Doc. 57–1 correspond with the court's CM/ECF numbering system. 9 The first page references to Doc. 61–1 correspond with the court's CM/ECF numbering system and the second page references correspond with the numbering of the deposition transcript. 10 All page references to Doc. 59–2 correspond with the court's CM/ECF numbering system. 11 The documentation provided by WAF as part of the TTA reflects that, as of November 20, 2008, WAF had 18 full-time employees, 2 management employees, and 1 part-time employee who were scheduled to receive CERP payments. (Doc. 66–1 at 9). 12 All page references to Doc. 57–3 correspond with the court's CM/ECF numbering system. 13 All page references to Doc. 66–1 correspond with the court's CM/ECF numbering system. 14 Unlike with WAF, the court does not see where actual CERP payments applicable to the employees of Sky Land and Territory Reps are substantiated in the record. 15 All page references to Doc. 56 correspond with the court's CM/ECF numbering system. 16 Regarding separate versus unified employing entities under WARN, 20 C.F.R. § 639.3(a)(2) provides: Under existing legal rules, independent contractors and subsidiaries which are wholly or partially owned by a parent company are treated as separate employers or as a part of the parent or contracting company depending upon the degree of their independence from the parent. Some of the factors to be considered in making this determination are (i) common ownership, (ii) common directors and/or officers, (iii) de facto exercise of control, (iv) unity of personnel policies emanating from a common source, and (v) the dependency of operations. Id. At least one court of appeals has concluded that the presence of corporate parental or other shared ownership is not essential for § 639.3(a)(2) to apply. See Pearson v. Component Tech. Corp., 247 F.3d 471, 494–95 (3d Cir.2001) (“[T]he DOL factors are an appropriate method of determining lender liability as well as parental liability, and therefore [we] hold - - --- - - -- -- - ---- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 364 of 520 PageID 1000 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 that, regardless of whether GECC took on the status of ‘parent’ in addition to its status of ‘lender’ when it foreclosed on the stock, its involvement with CompTech will be tested by reference to those factors.”). 17 For the purposes of this Motion only, the court, as indicated above, has assumed that Mr. Likes is able to benefit from the unified employer approach pursuant 20 C.F.R. § 639.3(a)(2) and, therefore can meet WARN's requirement that a covered employer employ 100 employees by combining WAF's workforce with that of DHL. See 29 U.S.C. § 2101(a) (1) (defining “employer” to mean “any business enterprise that employs—(A) 100 or more employees, excluding part- time employees[.]”). 18 Cf., e.g., Davis v. Signal Int'l Texas GP, L.L.C., 728 F.3d 482, 487 (5th Cir.2013) (finding single site of employment when “sharing of staff between the yard and annex was not merely occasional but in fact regular, with certain employees maintaining offices at both buildings, regular visits by personnel from one facility to the other, and use of the same security, payroll, and other staff”). 19 While § 639.3(i)(6) makes it clear that the “home base” for all of WAF's couriers is appropriately classified as a “single site of employment,” none of the DOL interpretative guidelines provides that employees who work exclusively for separate primary employers, but who also report to a common work-related location that is furnished by the same unified employer are collectively considered to be a “single site of employment.” 20 The court acknowledges that the DOL interpretative guidelines do provide for a “truly unusual organizational situation” as another way to meet the single site of employment definition, 20 C.F.R. § 639.3(i)(8), but finds that extending that particular provision to allow for the aggregation of employees with different primary employers to meet WARN's notice threshold is beyond the reach of what Congress intended with WARN. As the Eighth Circuit Court of Appeals has explained: Under this exception, two or more apparently separate sites may be deemed a “single site” if other criteria set out by the DOL do not reasonably apply. The case which best defines this exception is Carpenters Dist. Council v. Dillard Dep't Stores, 15 F.3d 1275, 1290 (5th Cir.1994), cert. denied, 513 U.S. 1126, 115 S.Ct. 933, 130 L.Ed.2d 879 (1995). In Carpenter's Dist. Council, the court held that two separate locations were a “single site” when employees, housed together, were split off into a different building due to space considerations yet continued to perform the same functions. In the situation at hand, there is nothing unusual about the organization of the St. Louis and St. Charles County sites. Any connection between the two sites is nothing more than that present in most large corporate organizations. Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1281 (8th Cir.1996). There is no intra-company space-driven workforce splitting issue involved here or anything else “truly unusual” from an organizational standpoint to warrant coverage under § 639.3(i)(8). End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. -- Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 365 of 520 PageID 1001 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Muro v. Target Corp., 7th Cir.(Ill.), August 31, 2009 340 F.3d 1200 United States Court of Appeals, Eleventh Circuit. Apolinar MARTINEZ–MENDOZA, Eliseo Morales–Caballero, et al., Plaintiffs–Appellants, Francisco Perez–Delgado, Delfino Camacho–Luna, et al., Plaintiffs, v. CHAMPION INTERNATIONAL CORPORATION, Defendant–Appellee, F & K Enterprises, Eller & Sons, et al., Third–Party Defendants. No. 02–12171. | Aug. 5, 2003. Synopsis Migrant employees of farm labor contractor brought action against paper manufacturer who had hired contractor to plant seedlings in manufacturer's forests, seeking monetary relief for themselves and on behalf of other migrant workers under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA). On cross-motions for summary judgment, the United States District Court for the Northern District of Florida, No. 00-00034- CV-4-RV-SMN, Roger Vinson, Chief Judge, granted manufacturer's motion and entered final judgment for manufacturer. Workers appealed. The Court of Appeals, Tjoflat, Circuit Judge, held that: (1) manufacturer was not a “joint employer” of migrant workers; (2) Court had jurisdiction over appeal even though District Court failed to address class certification issue; and (3) remand was required for District Court to determine whether a case or controversy exists. Affirmed in part, and vacated and remanded in part. West Headnotes (16) [1] Federal Courts Summary judgment Federal Courts Summary judgment In reviewing a district court's grant of summary judgment, Court of Appeals considers the evidence in the light most favorable to the party against whom judgment has been granted and, doing so, determines whether any material facts remain to be litigated. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1 Cases that cite this headnote [2] Labor and Employment Suffering or permitting to work An entity suffers or permits an individual to work and, thus, “employs” individual within meaning of the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) if, as a matter of economic reality, the individual is dependent on the entity. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5). 3 Cases that cite this headnote [3] Administrative Law and Procedure Deference to agency in general Court of Appeals accords significant weight to the statutory interpretation of the executive agency charged with implementing the statute being construed, particularly where that interpretation is incorporated in a formally published regulation. 2 Cases that cite this headnote [4] Labor and Employment Joint or multiple employers Labor and Employment Joint employers If, as a matter of economic reality, a laborer is dependent upon both the farm labor Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 366 of 520 PageID 1002 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 contractor and the agricultural employer, then a joint employment relationship exists, and the laborer will be considered an employee of both entities under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA). Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5); 29 C.F.R. § 500.20(h)(5). 10 Cases that cite this headnote [5] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Determination of whether a laborer furnished by a farm labor contractor was economically dependent on, and consequently jointly employed by, an agricultural employer, for purposes of claims under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), depends upon all the facts and circumstances in the particular case; the focus of each inquiry must be on each employment relationship as it exists between the worker and the party asserted to be a joint employer. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5). 3 Cases that cite this headnote [6] Labor and Employment Evidence Because the laborer has the burden of proof in bringing claims under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), to prevail he must establish the joint-employment inference by a preponderance of the evidence. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5); 29 C.F.R. § 500.20(h)(5) (iv)(A–G). 3 Cases that cite this headnote [7] Labor and Employment Joint or multiple employers Labor and Employment Proceedings In reviewing the district court's findings of fact with respect to the factors it examines in determining whether a laborer furnished by a farm labor contractor was economically dependent on, and consequently jointly employed by, an agricultural employer, for purposes of laborer's claims under Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), Court of Appeals gives the district court the benefit of the clearly erroneous rule; whether those findings, the circumstantial facts, support the ultimate fact the district court finds is a question of law, which the Court of Appeals reviews de novo. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5); 29 C.F.R. § 500.20(h)(5) (iv)(A–G). 7 Cases that cite this headnote [8] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Paper manufacturer was not a “joint employer” of migrant workers supplied by farm labor contractor to plant seedlings in manufacturer's forest, and thus, manufacturer was not liable for minimum wages and overtime compensation under the Fair Labor Standards Act (FLSA) or damages under the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA); although planting required minimal training and occurred on manufacturer's land, the Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 367 of 520 PageID 1003 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 manufacturer did not supervise laborers, it had no control over their working conditions, laborers generally did not know that manufacturer was the recipient of their efforts, manufacturer had other ways to regenerate forests, and manufacturer did not undertake responsibilities commonly handled by employers. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5). 4 Cases that cite this headnote [9] Labor and Employment Joint or multiple employers Labor and Employment Joint employers Factors to consider in determining whether laborer furnished by farm labor contractor is economically dependent on, and therefore jointly employed by agricultural employer, for purposes of Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), include whether alleged employer takes an overly active role in the oversight of work when it decides such things as for whom and how many employees to hire, how to design the employees' management structure, when work begins each day, when the laborers shall start and stop their work throughout the day, and whether a laborer should be disciplined or retained. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5). 9 Cases that cite this headnote [10] Labor and Employment Employers Included Labor and Employment Employers For purposes of determining employment status under Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), the necessary supervision is present whether the alleged employer's orders are communicated directly to the laborer or indirectly through the farm labor contractor; however, infrequent assertions of minimal oversight do not constitute the requisite degree of supervision. Fair Labor Standards Act of 1938, § 3(g), 29 U.S.C.A. § 203(g); Migrant and Seasonal Agricultural Worker Protection Act, § 3(5), 29 U.S.C.A. § 1802(5). 9 Cases that cite this headnote [11] Federal Courts Particular Issues Where a district court deliberately reserves ruling on class certification pending an appeal of its order granting summary judgment, there is no final judgment and the Court of Appeals lacks jurisdiction to hear the appeal. 28 U.S.C.A. § 1291. 8 Cases that cite this headnote [12] Federal Courts What constitutes final judgment Where a district court retains nothing for later decision, the court's judgment is final, and the appeal may go forward. Cases that cite this headnote [13] Federal Courts Particular Issues Even though district court failed to address class certification issue, court's entry of “final” judgment concomitant with its order granting summary judgment clearly indicated that it contemplated no further proceedings in the case, and therefore, Court of Appeals had jurisdiction over appeal. 28 U.S.C.A. § 1291. 5 Cases that cite this headnote [14] Federal Civil Procedure Representation of class; typicality; standing in general Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 368 of 520 PageID 1004 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Plaintiff's capacity to act as representative of the class is not ipso facto terminated when he loses his case on the merits. 5 Cases that cite this headnote [15] Federal Courts Class actions Court of Appeals is unable to review class certification decisions before they are made. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. Cases that cite this headnote [16] Federal Courts Need for further evidence, findings, or conclusions Where district court failed to address class certification issue when it entered final judgment for defendant on defendant's motion for summary judgment, remand was required for district court to determine whether a case or controversy exists, and if so, whether the case would be appropriate for class certification; court must then go on to decide whether any named plaintiffs would be qualified to serve as class representative, and if not, whether a member of the class would be willing and qualified. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. 35 Cases that cite this headnote Attorneys and Law Firms *1203 James M. Knoepp, Virginia Justice Center for Farm and Immigrant Workers, Falls Church, VA, Mary Catherine Bauer, Virginia Justice Center for Farm and Immigrant Workers, Charlottesville, VA, Gregory S. Schell, Migrant Farmworker Justice Project, Lake Worth, FL, for Plaintiffs–Appellants. Charles Franklin Beall, Jr., Moore, Hill & Westmoreland, P.A., Thomas Larry Hill, Moore, Hill, Westmoreland, Hook & Bolton, Pensacola, FL, for Defendant–Appellee. Ilene V. O'Malley, Oregon Law Center, Portland, OR, D. Michael Dale, Cornelius, OR, for Amicus Curiae. Appeal from the United States District Court for the Northern District of Florida. Before TJOFLAT and BLACK, Circuit Judges, and NANGLE * , District Judge. * Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri, sitting by designation. Opinion TJOFLAT, Circuit Judge: In this case, six migrant employees of a farm labor contractor, suing on behalf of themselves and other migrant workers under the Fair Labor Standards Act, 29 U.S.C. §§ 201–21, 1 and the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801–72, 2 seek the monetary relief granted by the provisions of those acts from a manufacturer of paper products who hired the contractor to plant *1204 tree seedlings in the manufacturer's forests. According to these employees, 3 the manufacturer and the farm labor contractor were “joint employers” and therefore liable for such relief. On cross-motions for summary judgment, the district court held that the manufacturer was not a joint employer. Then, without determining whether the case could proceed as a class action, the court entered a final judgment for the manufacturer. Plaintiffs now appeal. In addition to contending that the district court should have granted their motion for summary judgment on the joint employer issue, they ask that the case be remanded with the instruction that the district court consider whether the case should proceed as a class action on behalf of the class plaintiffs. We affirm the district court's determination that the manufacturer was not plaintiffs' joint employer. Concluding, however, that the court erred in refusing to address the class action issues the case presented, we remand the case for further consideration of those issues. 1 The relevant part of the Fair Labor Standards Act, 29 U.S.C. § 216(b), provides that “[a]n action to recover [unpaid minimum wages or overtime compensation] may be maintained against any employer ... by any Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 369 of 520 PageID 1005 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 2 The relevant part of the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1854, in subsection (a), authorizes “[a]ny person aggrieved by a violation of” the act to file suit in a United States district court. Subsection (c) authorizes the court to award “damages up to and including an amount equal to the amount of actual damages, or statutory damages of up to $500 per plaintiff per violation, or other equitable relief.” If the court certifies the suit as a class action, the court “shall award no more than the lesser of up to $500 per plaintiff per violation, or up to $500,000 or other equitable relief.” 3 For ease of discussion, we refer to the six migrant employees as “named plaintiffs” or “plaintiffs.” I. A. The manufacturer in this case is Champion International Corporation (“Champion”), formerly a leading producer of paper products in the United States. 4 As part of its operations, Champion maintained approximately five million acres of forest land. 5 After harvesting, it regenerated its forests through a combination of machine and hand planting. 6 Farm labor contractors (“FLCs”), who were registered with the United States Department of Labor, provided Champion with the laborers for the hand planting. 7 Between 1996 and 1999—the time period during which the six named plaintiffs and their class members allegedly worked for Champion—Champion contracted with forty-eight FLCs to plant tree seedlings by hand. 8 One of the FLCs was F & K Enterprises, the employer of the named plaintiffs. 9 F & K, which was headquartered in Hermitage, Arkansas, was a “leading” forestry FLC. With *1205 thirty-five to forty crews at its disposal, it provided laborers for dozens of customers in the forestry industry—large corporations, federal and state governments, and private land owners. F & K's crews had an average of eight to fourteen laborers and one foreman, who served as F & K's on-site representative. The foreman reported to one of six area supervisors, who, in turn, reported to F & K's president in Hermitage. 4 Champion merged into International Paper Corporation in 2000. 5 While the record is not clear, we assume that Champion either owned or leased such acreage. We refer to such acreage as if Champion owned it. 6 Champion also naturally regenerated parts of its harvested forests. 7 An FLC is “any person, other than an agricultural employer, an agricultural association, or an employee of an agricultural association, who, for any money or other valuable consideration paid or promised to be paid [recruits, solicits, hires, employs, furnishes, or transports] any migrant or seasonal agricultural worker.” 29 U.S.C. § 1802(6), (7). Among its many obligations, an FLC must obtain a certificate from the Secretary of Labor authorizing it to perform its duties. 29 U.S.C. § 1811(a). 8 Champion would enter into a contract after soliciting bids from the FLCs it deemed qualified to do the work. Before submitting their bids, the FLCs would review Champion's planting specifications and inspect the tract of land to be planted to determine the condition of the soil. In some locations, Champion chose not to solicit bids; instead, it negotiated a contract. This was never the case with F & K; it obtained contracts with Champion through the bidding process. 9 Although the record is not clear, F & K apparently employed other members of the plaintiff class. F & K employed hundreds of laborers during the planting seasons, recruiting most of them from Mexico. F & K would anticipate the number of laborers it would need to recruit by projecting its customers' requirements. 10 Once it obtained a planting contract, F & K would allocate from its pool of laborers the number needed to meet its contractual obligations. In the same way, F & K would anticipate the number of vehicles it would need to transport its laborers to and from the job site and the number of planting tools and seedling bags necessary to do the work. 10 F & K never recruited any workers specifically to work on Champion's property. The six named plaintiffs are migrant agricultural workers. 11 They contend that at various times between 1996 and 1999, they were employed by F & K to plant WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 370 of 520 PageID 1006 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 tree seedlings on land owned by Champion. 12 All six came from Mexico to the United States through the H– 2B temporary visa program. 13 F & K picked them up at the Mexican–American border and transported them to Arkansas, where they received training on handling and planting the seedlings. After that, F & K sent them to a work site. 14 At the end of the planting season, which usually lasted four months, from November/December to February/March, F & K took them back to the Mexican– American border. 11 Congress defines “migrant agricultural worker” as “an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence.” 29 U.S.C. § 1802(8)(a). 12 In addition to planting tree seedlings, its contracts with Champion may have required F & K to engage in “brush clearing and pre-commercial thinning.” The only relevant activity in this case, and for purposes of this appeal, is the planting of tree seedlings; hence, this opinion makes no further reference to these other activities. 13 The term “H–2B” is derived from the section of the Immigration and Nationality Act that authorizes the admission of aliens to perform unskilled work of a temporary nature. 8 U.S.C. § 1101(a)(H)(ii)(b). 14 During the planting season, the named plaintiffs usually worked at several sites on land owned or managed by different foresters. In most cases, they did not know the identity of the forester. All they knew was that they were responsible to the F & K foreman supervising their work. They relied on him for their instructions and for their transportation to and from the job site. During the time they worked for F & K, the named plaintiffs worked in forests owned by various F & K customers in several states. Some were forests owned by Champion in Alabama, Tennessee, and Florida. This work was governed by six contracts that Champion and F & K entered into between 1996 and 1999. Given that the contracts with Champion amounted to a mere ten percent of F & K's business, however, plaintiffs spent only a small part of their time laboring on Champion land. 15 Moreover, their limited time there was unmemorable. Only three of *1206 plaintiffs are certain they were ever on Champion's land, and they say this only because they recall seeing Champion logos on trucks, boxes, or apparel. The three remaining plaintiffs are sure that they planted seedlings in Champion forests solely to the extent that they recall working in Alabama, Tennessee, or Florida. 16 None of the named plaintiffs ever spoke with Champion personnel. 17 15 As detailed below, plaintiffs spent the vast majority of their time planting seedlings for the other landowners with whom F & K had contracts: (1) Apolinar Martinez–Mendoza worked for F & K for six consecutive planting seasons in the latter half of the 1990's. He planted seedlings in several states for many forest owners with whom F & K had contracted. During the 1996–97 planting season, he worked nearly two months on Champion land. The next season he worked eight days on Champion land. In 1998–99 he spent three or four days on Champion land. The remaining three seasons he did not work on Champion land at all. (2) Eliseo Morales–Caballero worked for F & K for three seasons, likewise planting seedlings in several states and for many landowners. He performed no work on Champion land during the first and last of those seasons. In the second season, 1996–97, he worked on Champion land in Florida for a few weeks, at most. (3) Francisco Javier Miranda–Esquivel worked for F & K two seasons, similarly planting seedlings in several states for other landowners. He only performed work for Champion in his second season, 1996–97, and only for several weeks of that planting season. (4) Paulo Morales–Martinez worked for F & K for two seasons, similarly planting seedlings in several states for other landowners. He only performed work for Champion in his second season, 1997–98, and only for two months, at most, of that planting season. (5) Rogelio Morales–Martinez worked for F & K for six consecutive planting seasons in the latter half of the 1990's. He planted seedlings in several states for many forest owners, but only worked on Champion land for parts of two seasons—1996–97 and 1997–98. (6) Francisco Perez–Delgado worked for F & K for two seasons. He planted seedlings in several states and for other landowners, working on Champion land for eleven days during the 1997–98 planting season, and several weeks of the 1998–99 planting season. 16 The three plaintiffs who “knew” they were on Champion land only guessed at the time that Champion owned the land. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 371 of 520 PageID 1007 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 17 As discussed infra, note 30, the only communication between plaintiffs and Champion occurred on one occasion when a Champion employee instructed a group of laborers (including at least one plaintiff) on the proper handling of plant seedlings. B. As noted, plaintiffs and the members of their class seek the recovery of the minimum wages and overtime compensation provided by the Fair Labor Standards Act (“FLSA”) and the damages provided by the Migrant and Seasonal Agricultural Worker Protection Act (“MSAWPA”). 18 After extended discovery, parties filed cross-motions for summary judgment as to whether Champion was plaintiffs' joint employer under either statute. The district court deferred its consideration of the class action certification issues pending its disposition of the cross-motions for summary judgment. 18 Champion brought third-party actions for indemnification against F & K and the other farm labor contractors who employed plaintiffs and their class members. These third-party claims are not before us; hence, we do not discuss them. In presenting their motion, plaintiffs relied heavily upon the provisions contained in the six contracts mentioned above—specifically the planting specifications. They argued that the precision with which they had been drafted showed that Champion ultimately controlled every facet of their work, such as to render it their joint employer. 19 Champion's position, on the *1207 other hand, emphasized that there was no interaction between Champion and plaintiffs, and that the evidence clearly indicated that F & K was their sole employer. As for plaintiffs' point about the specifications, Champion contended that the contracts with F & K were the products of arms' length negotiations, and that the planting specifications represented industry standards. 20 19 While each of the six contracts were distinct, they shared many of the same provisions. For instance, the contracts specified the general time of year in which the planting was to be done, the method of calculating payment to F & K (which depended on proper planting), and the general requirements for planting seedlings, such as (1) the handling of the seedlings, (2) the spacing of the seedlings, (3) the methods for planting the seedlings, and (4) the types of tools to be used. As Champion correctly observes, the contractual specifications for planting seedlings were similar to the specifications utilized by other forestry companies, the United States Department of Agriculture, state agencies, and various industry associations. 20 Moreover, Champion asserted, the contracts clearly indicated that F & K was plaintiffs' sole employer. In every contract, F & K alone agreed to furnish the labor, supervision, equipment, and transportation necessary to fulfill the planting requirements. Most contracts also stated that Champion had no role in selecting F & K's laborers, and that these laborers were not “subject to any orders, directions or control of Champion.” The district court granted Champion's motion for summary judgment (and simultaneously denied plaintiffs' motion). The court thereafter gave Champion final judgment. It did so without ruling on the class certification issues the parties had raised. [1] Plaintiffs now appeal, contending that the court should have granted it summary judgment on the ground that Champion was a joint employer as a matter of law. 21 They also contend that the court should have addressed the class certification issues. We address their contentions in turn. 21 In reviewing a district court's grant of summary judgment, we consider the evidence in the light most favorable to the party against whom judgment has been granted and, doing so, determine whether any material facts remain to be litigated. See Squish La Fish, Inc. v. Thomco Specialty Prods., Inc., 149 F.3d 1288, 1290 (11th Cir.1998). In this case, both parties filed motions for summary judgment, thus representing to the district court that the material facts are not disputed. We agree with their representations. Our task therefore, as we explain in part III, is to determine whether the circumstantial facts support the district court's ultimate finding that Champion was not the named plaintiffs' employer as alleged in the complaint. II. In 1983, Congress enacted the Migrant and Seasonal Agricultural Worker Protection Act “to remove the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 372 of 520 PageID 1008 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 restraints on commerce caused by activities detrimental to migrant and seasonal agricultural workers ... and to assure necessary protections for migrants and seasonal agricultural workers....” 29 U.S.C. § 1801. The MSAWPA requires agricultural employers to register with the government, maintain employment records for workers, and comply with various compensation, housing, and transportation provisions. 22 See 29 U.S.C. §§ 1811–44. Anyone aggrieved as a result of an employer's failure to discharge these responsibilities may bring a private right of action in a United States district court, for both legal and equitable relief. 29 U.S.C. § 1854(a), (c). 23 22 The MSAWPA defines “agricultural employer” as “any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.” 29 U.S.C. § 1802(2). 23 See supra notes 1 & 2. [2] [3] Champion's liability under the MSAWPA, and the FLSA as well, depends on whether Champion “employed” plaintiffs. The definition of “employ” is the same under both statutes: an entity “employs” a person if it “suffers or permits” the individual to work. 24 See *1208 29 U.S.C. § 203(g); 29 U.S.C. § 1802(5). “An entity ‘suffers or permits' an individual to work if, as a matter of economic reality, the individual is dependent on the entity.” Charles v. Burton, 169 F.3d 1322, 1328 (11th Cir.1999) (citation omitted). Since joint employment relationships—where a single individual stands in the relation of an employee to two or more persons at the same time—are common in agriculture, see 29 C.F.R. § 500.20(h)(5), 25 both statutes deliberately make “it clear that a worker can be economically dependent on, and thus jointly employed by, more than one entity at the same time.” 26 Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). 24 In a case brought under both statutes, as here, we held that in enacting the statutes, Congress expressly rejected the common-law definition of employment. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). 25 In 1997, the Department of Labor amended its regulation in an attempt to clarify the “joint employment” definition. See 62 Fed.Reg. 11734 (1997) (codified at 29 C.F.R. § 500.20 (1997)). This court, as required by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.E.2d 694 (1984), accords significant weight to the statutory interpretation of the executive agency charged with implementing the statute being construed, particularly where, as here, that interpretation is incorporated in a formally published regulation. Caro–Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1507 (11th Cir.1993). 26 The federal regulation states that the joint employer doctrine is a “central foundation” of the MSAWPA because it is “the best means” to fulfill the purpose of the act, which is “to reverse the historical pattern of abuse and exploitation of migrant and seasonal farm workers.” 29 C.F.R. § 500.20(h)(5). The joint employer doctrine effects this purpose by protecting “all those hired by middlemen to toil in our nation's fields, vineyards, and orchards.” Caro–Galvan, 993 F.2d at 1505 (citation and internal quotation mark omitted). [4] Moreover, “even if a farm labor contractor is found to be a bona fide independent contractor, this status does not as a matter of law negate the possibility that an agricultural employer may be a joint employer of the [laborers] together with the farm labor contractor.” 29 C.F.R. § 500.20(h)(5)(ii) (internal quotation mark omitted). If, as a matter of economic reality, a laborer is dependent upon both the FLC and the agricultural employer, then a joint employment relationship exists, and the laborer will be considered an employee of both entities. See Antenor, 88 F.3d at 930. On the other hand, if the two entities are commonly disassociated with respect to the employment of a particular employee, a joint employment situation does not exist. See 29 C.F.R. § 500.20(h)(5). [5] Ultimately, the determination of whether a laborer furnished by a FLC was economically dependent on, and consequently jointly employed by, an agricultural employer depends upon all the facts and circumstances in the particular case. See Antenor, 88 F.3d at 932. Thus, “the focus of each inquiry must be on each employment relationship as it exists between the worker and the party asserted to be a joint employer.” Id. (citation and quotation marks omitted). The drafters of the MSAWPA regulations, and this court in Charles, considered several factors in making such a determination: WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 373 of 520 PageID 1009 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 (1) whether the agricultural employer has the power, either alone or through the FLC, to direct, control, or supervise the worker or the work performed (such control may be either direct or indirect, taking into account the nature of the work performed and a reasonable degree of contract performance oversight and coordination with third parties); (2) whether the agricultural employer has the power, either alone or in addition to another employer, directly or indirectly, to hire or fire, modify the employment conditions, or determine *1209 the pay rates or the methods of wage payment for the worker; (3) the degree of permanency and duration of the relationship of the parties, in the context of the agricultural activity at issue; (4) the extent to which the services rendered by the worker are repetitive, rote tasks requiring skills which are acquired with relatively little training; (5) whether the activities performed by the worker are an integral part of the overall business operation of the agricultural employer; (6) whether the work is performed on the agricultural employer's premises, rather than on premises owned or controlled by another business entity; and (7) whether the agricultural employer undertakes responsibilities in relation to the worker which are commonly performed by employers, such as preparing and/or making payroll records, preparing and/or issuing pay checks, paying FICA taxes, providing workers' compensation insurance, providing field sanitation facilities, housing or transportation, or providing tools and equipment or materials required for the job (taking into account the amount of the investment). See 29 C.F.R. § 500.20(h)(5)(iv)(A)-(G); Charles, 169 F.3d at 1328–29. [6] [7] These factors guide our analysis of the economic reality in the case at hand, with the caveat that no one factor is dispositive. In entertaining and assessing the evidence relevant to the inquiry called for by a given factor, the question the district court must ask itself is whether such evidence, considered as a whole, supports (or fails to support) the laborer's claim that he is economically dependent on the putative employer, in this case Champion. 27 The facts the court finds at the end of each inquiry become pieces of circumstantial evidence which, together, yield inferentially one of two ultimate facts: joint employment exists or it does not. 28 Because the laborer has the burden of proof, to prevail he must establish the joint-employment inference by a preponderance of the evidence. In reviewing the district court's findings of fact with respect to the factors it examines, we give the court the benefit of the clearly erroneous rule. Whether those findings—the circumstantial facts—support the ultimate fact the court finds is a question of law, which we review de novo. Aimable v. Long and Scott Farms, 20 F.3d 434, 440 (11th Cir.1994). 27 In entertaining and assessing the evidence with respect to a factor, the court is, in effect, conducting a miniature bench trial. 28 Because the laborer, as the plaintiff, has the burden of proof, the court may, given the circumstantial evidence, refrain from finding the ultimate fact. In other words, the court may simply conclude that the laborer has failed to satisfy his burden of proof. A. [8] 1. Whether Champion had the power, either alone or through F & K, to direct, control, or supervise the laborers. [9] We have traditionally divided this factor into two concepts: first, the nature and degree of control of the laborers, and second, the degree of supervision over their work. See, e.g., Charles, 169 F.3d at 1329–31; Antenor, 88 F.3d at 933–35; Aimable, 20 F.3d at 440–42. As for the first concept, we have observed that control arises when the alleged employer “goes beyond general instructions, such as how many acres to pick in a given day, and begins to assign specific tasks, to assign specific workers, or to take an overly active role in the oversight of the work.” Aimable, 20 F.3d at 441. An alleged employer *1210 takes an “overly active” role when it decides such things as (1) for whom and how many employees to hire; (2) how to design the employees' management structure; (3) when work begins each day; (4) when the laborers shall start and stop their work throughout the day; and (5) whether WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 374 of 520 PageID 1010 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 a laborer should be disciplined or retained. Charles, 169 F.3d at 1329. “Agricultural decisions—decisions which only indirectly affect [ ] the number of workers necessary to harvest the land—cannot be likened to ‘control’ in the FLSA/MSAWPA sense.” Aimable, 20 F.3d at 441. In this case, it is undisputed that none of these indicia of control are present. Champion did not—and could not— assign laborers or tasks, dictate hiring decisions, design the laborers' management structure, govern the laborers' work schedule, or implement laborer discipline. 29 Despite this, plaintiffs repeat the argument they addressed to the district court: Champion's “exceptionally precise” planting specifications provided the roots for a “pervasive regime of control.” In plaintiffs' view, these specifications —in covering (1) the handling of the seedlings, (2) the spacing of the seedlings, (3) the methods for planting the seedlings, and (4) the types of tools to be used in planting—left “virtually nothing” to F & K's discretion. In short, Champion totally controlled the manner in which the laborers' did their work. 30 We are unpersuaded for several reasons. 29 Plaintiffs do dispute one indicia. They contend that Champion's contractual right to stop the seedling planting when soil conditions were poor— due, for example, to “adverse” weather—shows that Champion had the power to direct the starting and stopping of the laborers' work throughout the day. We disagree. The power to halt planting based on poor soil conditions is a general agricultural decision, which is quite distinct from the non-agricultural situation in Antenor—where a grower suspended work to verify that all the workers were in compliance with immigration laws—that plaintiffs rely on for support. 30 In further support of their claim that Champion had a “pervasive regime of control,” plaintiffs cite to one instance in which a Champion employee instructed a group of laborers on how not to bend the plants while handling and planting them. While observing the obvious—that one instance does not constitute a regime, much less a pervasive one—we note that proper planting and handling techniques are agricultural decisions that do not amount to control under the FLSA or MSAWPA. First, the facts clearly refute the claim that Champion controlled plaintiffs' work. Plaintiffs concede that they neither saw nor relied on the planting specifications contained in F & K's contracts with Champion in any way. In fact, they were completely unaware of the specifications. Each plaintiff was trained solely by F & K according to F & K's planting methods, which met or exceeded Champion's specifications. 31 F & K's high planting standards allowed plaintiffs to be transferred from forest to forest without the need for retraining. Indeed, other than occasional differences in spacing requirements, plaintiffs planted the same way regardless of whose land they were planting. Champion's specifications can therefore hardly be said to have controlled their behavior. 32 31 Champion's planting specifications were largely a matter of common sense to F & K and the other FLCs with whom Champion dealt. The specifications were industry standard and quite similar to the planting specifications made part of virtually all of F & K's other hand-planting contracts. It is therefore not surprising that F & K, which focused its work on the forestry industry, would have its own planting specifications that at least matched Champion's. 32 Plaintiffs advance a fallback control argument, that Champion's planting specifications slowed their work and thereby lowered their wages. The evidence unequivocally establishes, however, that F & K's contracts with Champion were the products of arms' length negotiations. F & K was aware of the planting specifications each time it chose to bid on a Champion proposal. Thus, before formulating its price, F & K assessed the possible negative effects the specifications might have on the laborers' pay and therefore its profits. Plaintiffs are accordingly incorrect in their assertion that Champion controlled their wages. *1211 Second, the drafting of planting specifications is unquestionably an agricultural decision which does not constitute the type of “control” that the FLSA and MSAWPA address. Third, plaintiffs' argument runs directly counter to the comments the Department of Labor made in promulgating its regulations: It should be noted that indirect control sufficient to indicate the existence of an employment relationship between a grower and an a FLC's crewmembers would not be established solely by WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 375 of 520 PageID 1011 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 contractual terms through which the grower's ultimate standards or requirements for the FLC's performance are defined (e.g., the grower's specification of the size or ripeness of the produce to be harvested, or of the date for the FLC's completion of the job). Such stated performance standards or objectives—which are common in contracts for services in the agricultural industry and in other contexts—would not, in themselves, constitute indirect control of the work by the person for whose benefit the services are to be performed (e.g., the grower). Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed.Reg. 11,734, 11,739–40 (March 12, 1997). Here, contrary to the position the Department takes in its regulations, plaintiffs attempt to establish control solely on the basis of the contract specifications that set F & K's performance standards. We agree with the district court; the specifications fail as an exclusive element of control. [10] As for the second concept, the degree of supervision over the laborers, “it is well settled that supervision is present whether orders are communicated directly to the laborer or indirectly through the contractor.” Charles, 169 F.3d at 1330 (citation omitted). On the other hand, infrequent assertions of minimal oversight do not constitute the requisite degree of supervision. Id. The record in this case reveals that Champion engaged in very little, if any, supervision. On deposition, plaintiffs themselves described Champion's supervision as very rare and infrequent, and admitted that they relied exclusively upon the F & K foremen for supervision and direction. While it is uncontested that Champion personnel were present on the job sites, they did not supervise the laborers; they were there simply to ensure that F & K complied with the contract specifications. Such oversight is specifically permitted by the regulations: The agricultural employer/ association may certainly take action during or after the conclusion of the work to confirm satisfaction of the contract's ultimate performance standards (including appearing in the field and communicating with the FLC about general observations concerning performance of the contract standards, such as ripeness or size of the produce harvested) without this action alone being considered an indicium of joint employment.... [A] reasonable degree of contract performance oversight ... is permissible. Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed.Reg. at 11,740. In sum, Champion's supervision was at most de minimis, and did not rise to the level of supervision necessary to satisfy this factor. We also conclude that the record contains no evidence that Champion controlled plaintiffs' employment. The first factor, therefore, weighs against a finding of joint employment. 2. Whether Champion had the direct or indirect power to (1) hire or fire, (2) modify *1212 the employment conditions, or (3) determine the pay rates or the methods of wage payment for the laborers. The second indicator of joint employment required the district court to consider whether Champion had the power to hire or fire the laborers, modify their employment conditions, or determine the rate of pay they should receive and how they should be paid. Plaintiffs do not contend that Champion had the power to hire or fire them, or set their pay. Instead, plaintiffs half-heartedly assert that Champion possessed the power to modify their employment conditions because it could determine when planting started, where it took place, and how long it lasted. They base their assertion solely on Champion's contractual right to stop planting due to adverse weather or poor soil conditions. Putting aside the fact that determining whether planting should continue in adverse weather or poor soil conditions is quintessentially an agricultural decision, the right to halt planting under those conditions could hardly amount to WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 376 of 520 PageID 1012 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 circumstantial evidence—whether considered in isolation or in combination with the other evidence in the case— that Champion was plaintiffs' employer. The evidence is unmistakable: Champion had no control over the laborers working conditions. F & K's foremen determined when they began working in the morning, when they took lunch or rest breaks, and when they quit for the day. Likewise, F & K could shift a laborer from one task to another, punish him if necessary, or alter his pay. See Aimable, 20 F.3d at 442. Contrast Antenor, 88 F.3d at 935 (finding economic dependence when grower dictated the workers' hours by deciding when work began each day, by halting picking when prices were low, and by hiring other workers). This factor, like the first factor, weighs against a finding of joint employment. 3. The degree of permanency and duration of the relationship of the parties. The third regulatory factor indicates the degree of permanency and duration of the relationship between the laborer and the alleged employer. Where an FLC and its workers are engaged for the duration of the operation and are obligated to work exclusively for the employer at its discretion, this factor would suggest economic dependence. See Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed.Reg. at 11,740. Plaintiffs concede, however, that they did not have a “particularly permanent relationship” with Champion and that this factor “suggests a lack of economic dependence.” Indeed, plaintiffs only worked scattered weeks, at most, on Champion property, never spoke with Champion personnel, and generally never even knew that Champion was the recipient of their efforts. We find that this factor weighs against a determination that plaintiffs were jointly employed by Champion. 4. The extent to which the services rendered by the laborers are repetitive, rote tasks requiring skills which are acquired with little training. The fourth regulatory factor focuses on the extent to which the services rendered by the laborers are repetitive, rote tasks that required little training to learn. The lower the worker's skill level, the lower the value and marketability of his services, and the greater the likelihood of his economic dependence on the person utilizing those services. 33 See *1213 Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed.Reg. at 11,740–41. While on the surface planting seedlings appears to be a rote task easily learned, the evidence in the record paints a less clear picture. For example, tree planters must learn to (1) cull defective seedlings, (2) determine the proper depth to plant the seedlings, (3) place the seedlings in the ground at the correct angle, (4) plant the seedlings with straight roots, (5) pack the seedlings tightly, and (6) measure appropriate spacing between the trees. Several plaintiffs, including the ones with several years of planting experience, acknowledged that it is difficult to master these skills. Even so, most laborers were able to effectively, albeit imperfectly, learn their job with relatively little training. 33 In Aimable, 20 F.3d at 444, we concluded that this factor is irrelevant to a determination of joint employment. The Department of Labor disagreed with our conclusion, and we defer to its judgment. Even so, we have difficulty discerning the probative value of this factor in resolving, one way or the other, the issue of joint employment. See id. Overall, we think this factor cuts slightly in favor of economic dependence. Although the planting of seedlings certainly requires more skill and is less rote than picking snap beans, see Charles, 169 F.3d at 1332, the amount of training required to perform the task is minimal, and most anyone could pick up the requisite skill. 5. Whether the activities performed by the laborers are an integral part of Champion's overall business. The next regulatory factor assesses whether the activities performed by the laborers were an integral part of Champion's overall business operation. “This factor is probative of joint employment because a worker who performs a routine task that is a normal and integral phase of the grower's production is likely to be dependent on the grower's overall production process.” Antenor, 88 F.3d at 937. A task or activity is considered “integral” to an employer's business when that employer “would be virtually certain to assure that the function is performed, and would obtain the services of whatever workers are needed for this function. [Accordingly, t]he workers so engaged can reasonably anticipate that the work will be available for so long as the function in question must be performed.” Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed.Reg. at 11,741. In other words, to demonstrate economic dependency on Champion, plaintiffs had to show that their role as hand-planters WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 377 of 520 PageID 1013 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 of tree seedlings was “indispensable” to Champion's business. See Antenor, 88 F.3d at 937. The district court determined that the laborers had failed to make this showing, and we agree. The record simply does not support the contention that Champion depended upon hand-planting of tree seedlings to run its business. Champion's forestry operations constituted a small portion of its overall business. Moreover, the timber provided by Champion's forestry operations comprised only a fraction of the timber Champion needed to supply its paper mills. Champion purchased the majority of its timber on the open market. It is clear, therefore, that Champion's overall business did not rely on its forestry operations. Even if we were to assume, however, that Champion's forestry operations were integral to its overall business, the evidence demonstrates that hand-planting of seedlings was not indispensable to its forestry operations. Forests will regenerate naturally over time, and a large portion of Champion's land holdings from 1996–99 were regenerated without the planting of seedlings. Furthermore, in those areas that Champion did decide to plant seedlings, hand- planting was unnecessary. Instead, most seedlings could have been—and in fact many were—planted by machine. In short, Champion did not need to plant tree seedlings by hand in order to maintain its forests or operate its overall business. The fifth factor weighs against a finding of joint employment. 6. Whether the work was performed on Champion's premises. *1214 The sixth factor examines whether the laborers worked on Champion's or someone else's land. “This factor is probative of joint employment because without the land, the worker might not have work, and because a business that owns or controls the worksite will likely be able to prevent labor law violations, even if it delegates hiring and supervisory responsibilities to labor contractors.” Charles, 169 F.3d at 1333 (internal quotation marks and citation omitted). There is no dispute here that plaintiffs worked on Champion's forest lands. This factor would accordingly appear at first blush to weigh unequivocally in plaintiffs' favor. A closer look indicates that the weight of plaintiffs having worked on Champion's lands might be that of a feather. Plaintiffs worked the vast majority of their time on land not owned by Champion. More significantly, they never took a job with F & K premised upon the knowledge that they would be planting on Champion land. Nor did it matter to them. They transferred from forest to forest, generally unaware of and unconcerned about who possessed the land. Plaintiffs who did “know” they were on Champion land knew so only cryptically— based on the Champion logos they happened to observe. Champion could have been a contractor hired to manage the landowner's forests, rather than the landowner itself, and plaintiffs would have been blissfully ignorant. Given plaintiffs' lack of knowledge and concern regarding whether Champion was the owner of the land on which they were working, it cannot be said they relied upon or anticipated Champion's business for a source of their income. See Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed.Reg. at 11,741 (“The workers' reliance upon a source or place of work (and, consequently, a source of income in the form of wages for services) [should] appropriately be considered in the determination of an employment relationship.”) In light of this, the fact that plaintiffs performed their hand-planting services on Champion land possesses little probity on the issue of whether they were economically dependent on Champion. We therefore conclude that while the sixth factor may cut in favor of joint employment, it does so only slightly. 7. Whether Champion undertook responsibilities in relation to the laborers that employers commonly perform. The final factor examines whether Champion undertook responsibilities for workers often undertaken by employers, such as (1) preparing and/or making payroll records, (2) preparing and/or issuing pay checks, (3) paying FICA taxes, (4) providing workers' compensation insurance, (5) providing field sanitation facilities, housing or transportation, or (6) providing tools and equipment or materials required for the job. The provision of such services “is both an objective manifestation of employer status and strong evidence of the workers' economic dependence upon [it].” Migrant and Seasonal Agricultural Worker Protection Act, 62 Fed.Reg. at 11,741–2. It is undisputed that Champion provided none of these services; F & K alone prepared the laborer's payroll records and checks, paid their FICA taxes, provided their housing, transportation, tools, etc. Accordingly, the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 378 of 520 PageID 1014 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 seventh factor weighs strongly against a finding that Champion was plaintiffs' joint employer. B. As should be apparent from our discussion, the foregoing factors yield pieces of circumstantial evidence. Our task is to determine whether these pieces, considered together, yield the inference that Champion was plaintiffs' employer as they alleged in their complaint. Two factors *1215 generated circumstantial evidence which points toward a finding that Champion was plaintiffs' employer jointly with F & K. Five factors, however, generate circumstantial evidence which points in the opposite direction, against a finding of such employment. This evidence more than outweighs the evidence generated by the other two factors. In sum, the record conclusively establishes that plaintiffs were solely employed by, and economically dependent upon, F & K—a large, legitimate business with a broad client base, numerous full-time employees, and substantial amount of equipment. We therefore affirm the district court's decision granting Champion summary judgment. III. [11] [12] [13] Plaintiffs brought this case as a class action, as authorized by the FLSA and the MSAWPA. See supra note 1. Rule 23(c)(1) of the Federal Rules of Civil Procedure requires that the district court determine “as soon as practicable” after the lawsuit is filed whether the class action is to be so maintained. 34 The lawsuit was filed on January 26, 2000; on May 4, 2000, the district court entered a scheduling order which, among other things, postponed consideration of class certification until after it decided whether Champion was plaintiffs' employer. The order gave the parties until May 11, 2001, to file pleadings that would require the court to address that question. The court subsequently extended this deadline to June 29, 2001. On that date, both plaintiffs and Champion filed motions for summary judgment. On March 18, 2002, the court ruled, granting Champion's motion. A final judgment in favor of Champion was entered the same day. As we observed at the outset, the court entered final judgment without addressing the class certification issue. 35 34 Rule 23(c)(1) provides: As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. 35 A district court's failure to determine prior to the entry of final judgment whether the case should proceed as a class action may deprive its judgment of the requisite finality for appealability under 28 U.S.C. § 1291 (and thereby deprive us of our jurisdiction over the appeal). Our research fails to disclose an Eleventh Circuit case, such as the one before us, in which the district court failed to rule on class certification. The Seventh Circuit, however, has faced the issue on several occasions. Its jurisprudence guides our analysis. Where a district court deliberately reserves ruling on class certification pending an appeal of its order granting summary judgment, there is no final judgment and the court of appeals lacks jurisdiction to hear the appeal. Glidden v. Chromalloy Am. Corp., 808 F.2d 621, 623 (7th Cir.1986). On the other hand, where a district court retains nothing for later decision—i.e., treats the litigation as having ended— the court's judgment is final, and the appeal may go forward. See Hickey v. Duffy, 827 F.2d 234, 238 (7th Cir.1987). In this case, it is apparent that the district court believed the litigation was over. Its entry of “final” judgment concomitant with its order granting summary judgment clearly indicated that it contemplated no further proceedings in the case. We accordingly conclude that we have jurisdiction over this appeal. [14] The district court erred in failing to address the issue. The court apparently thought that its decision granting Champion summary judgment on the employer issue automatically disposed of the class certification issue. That is, having lost their cases on the merits, the named plaintiffs would be unable as a matter of law to represent the class. The court was incorrect. The law of this circuit is to the contrary: a plaintiff's capacity to act as representative of the class is not ipso facto terminated when he loses his case on the *1216 merits. See Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir. Jan.1981) (en banc); 36 Armour v. City of Anniston, 654 F.2d 382 (5th Cir. Unit B Aug.1981) (per curiam); see also Armstrong v. Martin Marietta Corp., 138 F.3d WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 379 of 520 PageID 1015 Martinez-Mendoza v. Champion Intern. Corp., 340 F.3d 1200 (2003) 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 15 1374, 1383 n. 16 (11th Cir.1998) (en banc) (noting that in some cases the named plaintiff may appeal a denial of class certification even if she ceases individually to have a controversy with the defendant). Consequently, even after finding against plaintiffs on the merits, the court should have determined whether the class action could be maintained, and whether the plaintiffs could represent that class. 37 36 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 37 Under Rule 23(c)(1) “[t]he trial court has an independent obligation to decide whether an action was properly brought as a class action, even where[, as here,] neither party moves for a ruling on class certification.” McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. Unit A Oct.1981); accord Phillips v. Joint Legislative Comm. on Performance & Expenditure Review of Miss., 637 F.2d 1014, 1022 n. 9 (5th Cir. Feb.1981). The complaint in this case was brought as a class action. The district court accordingly was obligated to address class certification, regardless of whether the parties moved for resolution of the issue. [15] [16] As an appellate court, we are unable to review class certification decisions before they are made. Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir.1997). We must therefore remand the case to the district court for further proceedings. As we instructed the district court in Satterwhite, the court's first task will be to determine whether a case or controversy exists, as required by Article III, Section 3, of the United States Constitution. If a live controversy exists, the court must then determine whether the case is appropriate for class certification. 38 If it is, the court must go on to decide whether any of the named plaintiffs are qualified to serve as class representative and, if not qualified, whether a member of the class is willing and qualified to serve as class representative. 38 We are aware of Local Rule 23.1(b) for the Northern District of Florida, which imposes on class action plaintiffs a duty to move for class certification within ninety days of filing their complaint. Our opinion should not be read to limit the district court's application of the local rules or the court's ability to sanction plaintiffs for noncompliance with the rules. IV. For the foregoing reasons, we AFFIRM the district court's decision granting Champion summary judgment. We VACATE the court's final judgment, however, and REMAND the case for further proceedings not inconsistent with what we have said in part III. SO ORDERED. All Citations 340 F.3d 1200, 148 Lab.Cas. P 34,732, 56 Fed.R.Serv.3d 817, 8 Wage & Hour Cas.2d (BNA) 1617, 16 Fla. L. Weekly Fed. C 945 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 380 of 520 PageID 1016 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 381 of 520 PageID 1017 ... ... 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Roe v. Keady, 329 F.3d 1188, 1194 (10th Cir.2003). All of the proffered emails share distinctive and common characteristics in terms of the names, email addresses, discussion of identifiable content, logos and titles. “The distinctive characteristics of the emails suggest that they are what they purport to be and thus are sufficiently authenticated for consideration at summary judgment.” Rowe v. DPI Specialty Foods, Inc., 2015 WL 3533844, at n. 28 (D.Utah. Jun. 4, 2015). As for the defendant’s hearsay objections, it would appear that Miller as operations manager for DirecTV sent these emails to contractors on a matter within the scope of his employment and while he was employed. Fed. R. Evid. 801(d)(2). The defendant has not shown that these emails meet the definition of hearsay. 2 DirecTV points to the uncontroverted facts that Kari Matrai’s assigned tech number was never used on any work orders and that DirecTV has no record of her completing any work orders. DirecTV contends Kari’s failure to use the employer’s system for tracking her work precludes her FLSA claim. The plaintiffs' response to the defendant’s motion fails to address this legal argument, so it stands as uncontested. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 396 of 520 PageID 1032 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 397 of 520 PageID 1033 - WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 398 of 520 PageID 1034 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 399 of 520 PageID 1035 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 400 of 520 PageID 1036 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 401 of 520 PageID 1037 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 402 of 520 PageID 1038 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 403 of 520 PageID 1039 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 404 of 520 PageID 1040 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 405 of 520 PageID 1041 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 406 of 520 PageID 1042 WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 407 of 520 PageID 1043 Footnotes 1 This Report and Recommendation was adopted by the District Judge in Keyes v. Car–X Auto Service, No. C–1–07–503, 158 Lab.Cas. (CCH) P35, 668, 2009 WL 4136586, 2009 U.S. Dist. LEXIS 108980 (S.D.Ohio Nov. 20, 2009). 2 In affirming Wilks I, the Sixth Circuit stated: [W]e conclude that the district court's comprehensive and well-reasoned opinion supports its legal conclusion and the denial of Defendant's motion for partial summary judgment. Because the issuance of a detailed written opinion by this Court would be repetitious, the judgment rendered by the Honorable Aleta A. Trauger is affirmed on the basis of the reasoning set forth in the September 26, 2006 opinion and order. Wilks II, 278 Fed.Appx. at 489–90. 3 The Sixth Circuit has reiterated the Supreme Court's position that “an opinion of the Administrator of the Wage and Hour Division of the Department of Labor has persuasive value if the position of the Administrator is well-considered and well- reasoned.” Fazekas, 204 F.3d at 677 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)) End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 408 of 520 PageID 1044 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 420 F.Supp.2d 1276 United States District Court, M.D. Florida, Orlando Division. Jorge MOLINA, Gonzalo Gutierrez, Raphael H. Mendez, Leonardo T. Gutierrez, Carlos A. Preciado, Adriana Arango, Julian Preciado & Nhora Patricia Vargas and all others similarly situated, Plaintiffs, v. SOUTH FLORIDA EXPRESS BANKSERV, INC., Defendant. No. 6:05CV742ORL31DAB. | March 8, 2006. Synopsis Background: Workers brought action against purported employer, seeking to recover unpaid wages and overtime pay under the Fair Labor Standards Act (FLSA). Purported employer moved for summary judgment. [Holding:] The District Court, Presnell, J., held that genuine issues of material fact precluded summary judgment on issue of whether workers were employees or independent contractors, for FLSA purposes. Motion denied. West Headnotes (13) [1] Federal Civil Procedure Materiality and genuineness of fact issue Which facts are material, for summary judgment purposes, depends on the substantive law applicable to the case. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. Cases that cite this headnote [2] Federal Civil Procedure Weight and sufficiency The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. Cases that cite this headnote [3] Labor and Employment Fair Labor Standards Act A purpose of the FLSA is to eliminate low wages and long hours for employees, and to free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well- being of workers. Fair Labor Standards Act of 1938, §§ 6, 7, 29 U.S.C.A. §§ 206, 207. Cases that cite this headnote [4] Labor and Employment Questions of Law or Fact The first question in considering an FLSA claim for unpaid wages and overtime pay is whether a person is considered an employee entitled to protection under the FLSA, which is a question of law. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). Cases that cite this headnote [5] Labor and Employment Employment relationship The label the parties put on the relationship is not determinative of whether a person is an employee under the FLSA, nor is it relevant whether the parties intended to create an employment relationship. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 1 Cases that cite this headnote [6] Labor and Employment Employment relationship To determine employee status under the FLSA, courts focus on whether the alleged employee, as a matter of economic reality, is Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 409 of 520 PageID 1045 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 economically dependent upon the business to which he or she renders his or her services. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 3 Cases that cite this headnote [7] Labor and Employment Employment relationship The economic reality or economic dependence inquiry, for purpose of determining whether a person is an employee under the FLSA, involves a number of factors, including the degree of control exercised by the alleged employer, the extent of the relative investments of the worker and the alleged employer, the degree to which the worker's opportunity for profit and loss is determined by the alleged employer, the skill and initiative required in performing the job, and the permanency of the relationship. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 8 Cases that cite this headnote [8] Labor and Employment Employment relationship In analyzing whether a worker is an employee under the FLSA, the final and determinative question must be whether the total of the testing establishes the worker is so dependent upon the business with which he is connected that he comes within the protection of the FLSA, or is sufficiently independent to lie outside of its ambit. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). Cases that cite this headnote [9] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issues of material fact as to the degree of control purported employer exercised over workers, the relative investments made by purported employer and workers, the parties' opportunities for profit and loss, and the skill and initiative required in performance of the job duties, precluded summary judgment on question of whether workers were employees or independent contractors, in workers' FLSA action to recover unpaid wages and overtime pay. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 4 Cases that cite this headnote [10] Labor and Employment Employment relationship Control is only significant, for purpose of determining employment status under the FLSA, when it shows an individual exerts such a control over a meaningful part of the business that she stands as a separate economic entity. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 2 Cases that cite this headnote [11] Labor and Employment Independent Contractors A lack of specialization indicates that an individual is an employee, not an independent contractor, under the FLSA. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 11 Cases that cite this headnote [12] Labor and Employment Independent Contractors Routine work which requires industry and efficiency is not indicative of independence and nonemployee status, in analyzing whether a worker is an employee or independent contractor for FLSA purposes. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 9 Cases that cite this headnote [13] Labor and Employment Independent Contractors Even if an individual has specialized skills, that is not indicative of independent Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 410 of 520 PageID 1046 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 contractor status, for FLSA purposes, where the individual does not use those skills in an independent fashion. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 12 Cases that cite this headnote Attorneys and Law Firms *1277 N. James Turner, Orlando, FL, for Plaintiffs. Peter W. Zinober, Jay P. Lechner, Zinober & McCrea, P.A., Tampa, FL, Averill G. Marcus, Miami, FL, for Defendant. ORDER PRESNELL, District Judge. The Plaintiffs in this case have sued the Defendant, South Florida Express Bankserv, Inc. (“SFEBI”) claiming that they are owed unpaid minimum wages as well as unpaid overtime wages under the Fair *1278 Labor Standards Act, 29 U.S.C. § 201, et seq. (the “FLSA”) for work performed while in the Defendant's employ. 1 This matter is presently before the Court on SFEBI's Motion for Summary Judgment (Doc. 37), and the Plaintiffs' Response thereto (Doc. 63). 1 The Plaintiffs no longer perform work for SFEBI. (Doc. 38 at 2; Doc. 40, Att. 1 at 2; Doc. 41 at 2; Doc. 42 at 2; Doc. 47, Att. 1 at 3; Doc. 48, Att. 1 at 4; Doc. 49 at 2). I. Background A. The Parties SFEBI operates a courier service, and provides to its customers drivers who make scheduled pick-ups and deliveries. SFEBI's headquarters are located in Miami, and it maintains operational hubs around the state of Florida. These hubs are not “offices,” but are simply locations for drivers to drop off and distribute mail. SFEBI does not maintain an office in Orlando. Instead, SFEBI employs a supervisor who works at a customer location as a liaison with the customer, and monitors the drivers' work to ensure that it matches the schedules set by the customer. SFEBI operates on a “scheduled route basis,” and provides round-the-clock service every day of the week. B. Facts The primary nature of the work in which the Plaintiffs were involved was “proof work,” wherein the Plaintiffs would pick up checks that had been deposited with SFEBI's bank customers and deliver those checks to the customer's main branch. (Doc. 49 at 3). The Plaintiffs also delivered other documents such as loan documents, deposit slips, non-negotiable securities, and inter-office mail between the customers' respective branch offices. (Id. at 4; Doc. 51, Att. 1 at 1–2). SFEBI originally classified its drivers as employees. These employee drivers used SFEBI's vehicles to perform their work, and SFEBI paid for their fuel, insurance, and all related expenses. Employee drivers were paid based on an hourly rate. In the mid–1990's, SFEBI reclassified drivers as independent contractors. The Plaintiffs thus entered into an “Independent Contractor Agreement,” which specifically stated that the relationship between SFEBI and the Plaintiffs was that of an independent contractor, and further stated that the Plaintiffs would “in no way and for no purpose ... be considered an agent, servant, employee, partner or co-venturer” of SFEBI. (Doc. 39, Att. 2 at 3–4). 2 That agreement also included language noting that SFEBI acknowledged that it had no right to direct or control the means by which the Plaintiffs performed their services, and that SFEBI was only concerned with the results accomplished by the Plaintiffs. (Id. at 4). The agreement did not prohibit the Plaintiffs from performing work for other businesses during those times that the Plaintiffs were not supposed to be working for SFEBI. (Id. at 10; see also Doc. 38, Att. 17; Doc. 40, Att. 1 at 14–15; Doc. 41, Att. 1 at 11; Doc. 42 at 8). Either party could terminate the Agreement at any time by giving the other party written notice twenty-four hours in advance. (Doc. 39, Att. 2 at 11). 2 The Plaintiffs agree that they were told that the nature of their relationship with SFEBI was that of an independent contractor. (Doc. 40, Att. 1 at 8; Doc. 41, Att. 1 at 2–3; Doc. 47, Att. 1 at 11; Doc. 48, Att. 1 at 2; Doc. 49 at 9). The Plaintiffs were paid based on the type of route to which they were assigned, generally based on the number WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 411 of 520 PageID 1047 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 of stops. 3 (Doc. 38 at 12–13; Doc. 39, Att. 2 at 5; *1279 Doc. 40, Att. 1 at 11; Doc. 43 at 13–14; Doc. 48, Att. 1 at 2). SFEBI determines the value of the various routes. 4 (Doc. 40, Att. 1 at 12). Generally, if the route change, thus requiring a driver to work more, that driver is able to earn more money. (Doc. 41, Att. 1 at 4; Doc. 42 at 7–8; Doc. 48, Att. 1 at 7, 8; Doc. 49 at 5). In addition, if a driver is assigned to a route in addition to that driver's regular route, that driver earns extra compensation. 5 (Doc. 38 at 13; Doc. 40, Att. 1 at 13; Doc. 41, Att. 1 at 8, 9; Doc. 42 at 7; Doc. 46 at 5; Doc. 47, Att. 1 at 7; Doc. 49 at 11). Drivers could increase their compensation by reducing their individual expenses. (Doc. 42 at 8; Doc. 48, Att. 1 at 8; Doc. 49 at 15–16). 3 Drivers are paid a “commission” for their routes, based on the rate assigned by SFEBI to that route multiplied by the number of times a driver covers a particular route. (Doc. 38, Att. 2 at 5; Doc. 43 at 13–14). The amount SFEBI charges its customers for particular routes is set by a contract between SFEBI and its customers. (Doc. 43 at 16; Doc. 51, Att. 2 at 3). SFEBI then determines how much drivers will be compensated for covering those routes. (Doc. 46 at 13). 4 There is a dispute as to whether the Plaintiffs were able to negotiate how much they would be paid for the various routes. The Plaintiffs assert that they were not able to negotiate the amount they were compensated, (see Doc. 42 at 14; Doc. 47, Att. 1 at 14; Doc. 49 at 5, 11), whereas SFEBI asserts that the compensation for routes was sometimes negotiable, (Doc. 43 at 14; Doc. 46 at 5). The Plaintiffs assert that, particularly when they were given additional routes, they were simply given an assignment without knowing how much they would be paid, and only upon receiving their paycheck some time later could they determine how much they had been compensated for that additional route. (Doc. 47, Att. 1 at 14; Doc. 49 at 5, 11). It appears clear, however, that at least the initial compensation for a route is set by SFEBI. (Doc. 46 at 13). SFEBI asserts that the drivers are aware in advance of the compensation for additional work. (Id. at 5). 5 Conversely, if a driver is unable to cover part or all of a particular route, that driver's compensation is reduced accordingly. (Doc. 42 at 7; Doc. 48, Att. 1 at 8). When a driver is assigned to a route, the driver is told when to be at each stop along that route, and which roads to take when performing that route. 6 (Doc. 39 at 19–20; Doc. 40, Att. 1 at 15 (noting that drivers had no discretion to use different roads); Doc. 42 at 13; Doc. 47, Att. 1 at 12; Doc. 48, Att. 1 at 9; Doc. 49 at 18). Drivers are given “route sheets” or “manifests,” which list the name of each stop and the time the driver is required to be there, 7 (Doc. 40, Att. 1 at 3, 15; Doc. 41, Att. 1 at 5; Doc. 45 at 10), and thus drivers are scheduled to be at certain places at certain times each day of the week. 8 (Doc. 40, Att. 1 at 11; Doc. 45 at 19; Doc. 46 at 4). Drivers are also told where to enter certain buildings, where to go, and which people to speak with. (Doc. 40, Att. 1 at 15; Doc. 47, Att. 1 at 12). While the Plaintiffs were out on their routes, they were contacted frequently via radio by their supervisor, *1280 who would ask them questions such as where they were, how long it would take them to get somewhere else, or would tell them to change routes to do things such as make additional pick-ups. 9 (Doc. 39 at 18, 20; Doc. 40, Att. 1 at 3; Doc. 45 at 8–9; Doc. 49 at 18). The supervisors would also urge the Plaintiffs to complete their routes faster. (Doc. 49 at 6, 19). 6 Drivers were trained on their routes by the person who had covered that route before them. (Doc. 38 at 7; Doc. 40, Att. 1 at 15; Doc. 41, Att. 1 at 4). SFEBI's “Manual of Operations” states that it is the responsibility of the driver to learn the route, that SFEBI will not compensate the drivers for the time they spend in training, and that at the customer's request SFEBI will provide a representative for up to two days to oversee the driver's performance and answer any questions. (Doc. 39, Att. 2 at 29). 7 These route sheets or manifests create tight schedules for the drivers to follow. (Doc. 45 at 10). SFEBI asserts that the drivers agree in advance to follow these manifests, and are told of the compensation for the route, as well as the nature of the route and the required times in advance. (Doc. 43 at 9). 8 SFEBI agrees that drivers are required to be at certain places at certain times, but asserts that the manifests are “contracts of time” that SFEBI has with its customers, and thus that the customers mandate these schedules, not SFEBI, because the drivers are delivering time-sensitive documents and thus have to precisely follow the manifests. (Doc. 38 at 18; Doc. 43 at 9–10, 16). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 412 of 520 PageID 1048 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 9 SFEBI denies that supervisors constantly call drivers to check up on them, and asserts that the only usual contact between supervisors and drivers is when drivers call in because they are unable to meet the prescribed schedule. (Doc. 43 at 8). The Plaintiffs assert that they were unable to choose the route to which they were assigned, nor were they able to request new routes; 10 instead, SFEBI assigned them to certain routes. 11 (Doc. 40, Att. 1 at 13; Doc. 42 at 14; Doc. 45 at 19; Doc. 49 at 17). The Plaintiffs also assert that they did not have the ability to reject assignments given to them in addition to their normal routes, and that if they attempted to reject this new or additional work, they would get fired. 12 (Doc. 38 at 13; Doc. 40, Att. 1 at 13; Doc. 47, Att. 1 at 14; Doc. 48, Att. 1 at 7; Doc. 49 at 17). The Plaintiffs were unable to pick which days of the week to work, 13 and were unable to take days off, particularly when there was no one available to cover their routes. (Doc. 40, Att. 1 at 16; Doc. 42 at 14; Doc. 47, Att. 1 at 14; Doc. 49 at 17, 21). 10 SFEBI asserts that if there is more than one route available, the driver can pick which route to perform, but if there is only one available route, the driver can choose to accept or decline that route. (Doc. 43 at 11). 11 The Plaintiffs also assert that they were occasionally required to cover routes for other drivers, for which they were not compensated. (Doc. 47, Att. I at 15; Doc. 49 at 10–11, 19). 12 SFEBI disputes this assertion, and states that not only were the Plaintiffs not ordered to take additional assignments, but the Plaintiffs had the ability to decline new routes or additional work, and that they would not be fired if they did so. (Doc. 43 at 11, 14; Doc. 46 at 5). 13 SFEBI asserts that drivers can accept routes for only certain days of the week. (Doc. 43 at 19). The Plaintiffs also assert that if they were unable to perform their own route, they could not pick a person to replace them. (Doc. 38 at 15; Doc. 45 at 38–39; Doc. 48, Att. 1 at 9; Doc. 49 at 18). Further, although the language of the Independent Contractor Agreement states that drivers can hire other drivers to work for them, 14 the actual practice at SFEBI forbids this procedure. 15 (Doc. 38 at 16; Doc. 40, Att. 1 at 10; Doc. 47, Att. 1 at 14–15; Doc. 49 at 18). 14 The Independent Contractor Agreement contains a section entitled “Replacement Operator,” which provides, in relevant part: If someone other than [the Plaintiff] operates the vehicle when [the Plaintiff] is supposed to be performing services for [SFEBI], [the Plaintiff] must notify [SFEBI] in advance of who such replacement operator will be and any such individual operator must be an employee, agent, or servant of [the Plaintiff]. Such notification to [SFEBI] is required to enable [SFEBI] to notify its customers of any such change. Doc. 39, Att. 2 at 6. The Agreement also states that SFEBI was not responsible for the direction and control of persons hired by the drivers. (Id. at 4). 15 SFEBI disputes this assertion, and states that drivers are permitted to hire other drivers to cover their routes and, in fact, at least one driver did so. (Doc. 46 at 10). SFEBI also states that drivers do not need approval from SFEBI to hire other drivers to cover their routes. (Id. at 11). Often, if SFEBI needed an extra driver, supervisors would call the Plaintiffs' family *1281 and friends to cover a route. (Doc. 49 at 11). SFEBI would then pay that person directly, instead of paying the Plaintiff and having the Plaintiff compensate that person appropriately for covering the Plaintiff's route. 16 (Doc. 39 at 14; Doc. 42 at 9–10, 12; Doc. 47, Att. 1 at 6; Doc. 49 at 12). 16 SFEBI asserts that if a driver has someone cover their route, SFEBI pays the original driver, and then that driver compensates the person who covered their route. (Doc. 41, Att. 1 at 14). The Plaintiffs were responsible for a variety of expenses, including: leasing a cellular phone from SFEBI, (Doc. 41, Att. 1 at 4; Doc. 45 at 11; Doc. 46 at 4); paying for automobile and cargo insurance, (Doc. 41, Att. 1 at 4; Doc. 42 at 5; Doc. 47, Att. 1 at 10; Doc. 49 at 5); buying uniform shirts, (Doc. 41, Att. 1 at 4; Doc. 42 at 5; Doc. 46 at 4); and paying for tolls, gas, vehicle repairs and maintenance. (Doc. 39, Att. 2 at 9; Doc. 40, Att. 1 at 9; Doc. 41, Att. 1 at 12; Doc. 42 at 5, 7; Doc. 46 at 3; Doc. 47, Att. 1 at 11–12; Doc. 48, Att. 1 at 6; Doc. 49 at 14). 17 SFEBI did not provide the Plaintiffs with annual leave, vacation, or a health care plan, and did not fund Workers Compensation or unemployment compensation benefits. (Doc. 39, Att. 2 at 6; Doc. 40, Att. 1 at 10, 13; Doc. 41, Att. 1 at 11; Doc. 46 at 6; Doc. 48, Att. 1 at 6, 9; Doc. 49 at WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 413 of 520 PageID 1049 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 14–15). SFEBI did not withhold taxes from the Plaintiffs' paychecks, because the Plaintiffs were paid as independent contractors. (Doc. 38 at 10–11, 15; Doc. 39, Att. 2 at 6; Doc. 41, Att. 1 at 11). Prior to starting work with SFEBI, the Plaintiffs obtained and paid for driving history reports and criminal background checks. (Doc. 42 at 5; Doc. 47, Att. 1 at 11). 17 The Plaintiffs used their own vehicles when working for SFEBI. (Doc. 39, Att. 2 at 6–7; Doc. 46 at 3). There is a dispute over the amount of discretion and independence the Plaintiffs were able to exercise. The Plaintiffs assert that they had no independence, and that they simply had to follow orders. (Doc. 49 at 20). SFEBI asserts that any strict requirements are instituted not by SFEBI, but by SFEBI's customers, who dictate certain requirements via contracts between SFEBI and the customer. 18 (Doc. 43 at 16). These contractual requirements include specified routes with a specific order of stops to be made according to a specific schedule, and that drivers wear uniforms and badges. The prices paid for routes and stops are also governed by the contracts. (Id.; see also Doc. 41, Att. 1 at 13). SFEBI also notes that drivers are not told where to buy gas, get their vehicles repaired or where to park their vehicles when not in use. (Doc. 42 at 8). In addition, drivers are not required to display SFEBI's name on their vehicle, do not attend regular meetings, and do not receive annual reviews. (Doc. 40, Att. 1 at 16; Doc. 41, Att. 1 at 13; Doc. 42 at 9). 18 These requirements include, for example, that drivers wear uniforms and badges, and that drivers be present at certain locations at particular times. (Doc. 43 at 16). Various Plaintiffs have indicated that they are not familiar with the requirements SFEBI's customers imposed on SFEBI, and do not know whether any daily changes to their routes were made at the behest of SFEBI's customers. (Doc. 48, Att. 1 at 9; Doc. 49 at 6–7, 20–21). C. Claims and Arguments The Plaintiffs assert two claims against SFEBI, for violations of the minimum wage requirements (Count I) and the overtime wage requirements (Count II) of the FLSA. SFEBI argues that the Plaintiffs were independent contractors, not employees, and therefore not subject to the provisions of the FLSA. *1282 II. Standard of Review [1] A party is entitled to summary judgment when the party can show that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir.1994). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Watson v. Adecco Employment Services, Inc., 252 F.Supp.2d 1347, 1352 (M.D.Fla.2003). [2] When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the non-moving party bears the burden of proof at trial, the non-moving party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations and citation omitted). Thereafter, summary judgment is mandated against the non-moving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324–25, 106 S.Ct. 2548; Watson, 252 F.Supp.2d at 1352. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) (“conclusory allegations without specific supporting facts have no probative value”); Broadway v. City of Montgomery, Ala., 530 F.2d 657, 660 (5th Cir.1976). 19 19 All decisions of the Fifth Circuit issued prior to October 1, 1981, are binding precedent on courts within the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). The Court must consider all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolve all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The Court is not, however, required to accept all of the nonmovant's factual characterizations and legal arguments. Beal, 20 F.3d at 458–59. If material issues of fact exist, the Court must not decide them, but rather, WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 414 of 520 PageID 1050 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 must deny the motion and proceed to trial. Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). III. Legal Analysis A. The Fair Labor Standards Act [3] [4] The FLSA was enacted to eliminate low wages and long hours, and to “free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well- being of workers.” Usery v. Pilgrim Equip. Co., Inc., 527 F.2d 1308, 1310 (5th Cir.1976) (internal citation and quotation omitted). The Act thus imposes a minimum wage requirement for covered employees, and “prohibits employers from employing any worker for a workweek longer than forty hours unless the employee receives compensation for the excess hours at a rate not less than one and one half times the regular rate at which the worker is employed.” Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1318 (S.D.Fla.2001) (citing 29 U.S.C. §§ 206, 207(a)(1)). The first question is thus whether a person is considered an “employee” entitled to protection under the FLSA, which is a question of law. Id. The FLSA does not specifically define the limits of the employee-employer relationship, and instead only offers a vague *1283 definition of the term “employee.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); Santelices, 147 F.Supp.2d at 1318. Under the Act, an “employee” is one who is “employed,” and “employ” is defined as “to suffer or permit to work.” Usery, 527 F.2d at 1311 (citing 29 U.S.C. §§ 203(e), (g)). Because the FLSA is a remedial statute, courts apply an expansive definition of “employee.” Rutherford Food, 331 U.S. at 728, 67 S.Ct. 1473; Usery, 527 F.2d at 1311; see also Harrell v. Diamond A Entm't, Inc., 992 F.Supp. 1343, 1348 (M.D.Fla.1997) (noting that “employment is defined with striking breadth,” and that the “suffer or permit to work standard ... has been called the broadest definition [of employee] that has ever been included in one act.”) (internal citations and quotations omitted). [5] [6] This case calls for the Court to distinguish between an “employee” and an “independent contractor.” 20 The courts have rejected the common law concepts of those terms as determinants of who is protected under the FLSA. Usery, 527 F.2d at 1311. Further, the label the parties put on the relationship is not determinative, nor is it relevant whether the parties intended to create an employment relationship. Rutherford Food, 331 U.S. at 729, 67 S.Ct. 1473; Donovan v. Tehco, Inc., 642 F.2d 141, 143 (5th Cir.1981); Santelices, 147 F.Supp.2d at 1319. Instead, to determine employee status under the FLSA, courts 20 One court has differentiated between employees and independent contractors as follows: “Employees” work for wages or salaries under direct supervision. “Independent contractors” undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, materials, and labor and what they receive for the end result, that is, upon profits. N.L.R.B. v. Assoc'd Diamond Cabs, Inc., 702 F.2d 912, 919 (11th Cir.1983). See also McGuiggan v. C.P.C. Int'l, Inc., 84 F.Supp.2d 470, 479–80 (S.D.N.Y.2000) (“In short, if the Plaintiffs were in business for themselves, they were not employees; If they were economically dependent on and within the direct control of CPC, they were employees.”). focus on whether the alleged employee, as a matter of economic reality, is economically dependent upon the business to which he or she renders his or her services. In other words, [the courts'] task is to determine whether the individual is, as a matter of economic reality, in business for himself or herself. Herman v. Express Sixty–Minutes Delivery Serv., Inc., 161 F.3d 299, 303 (5th Cir.1998); see also Donovan, 642 F.2d at 143 (“The focal inquiry in the characterization process is thus whether the individual is or is not, as a matter of economic fact, in business for himself.”); Harrell, 992 F.Supp. at 1348. 21 21 See Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1318 (S.D.Fla.2001) (“The touchstone of ‘economic reality’ in analyzing a possible employee/ employer relationship for purposes of the FLSA is dependency. The courts look at all of the surrounding circumstances of the ‘whole activity’ to determine whether the putative employee is economically dependent upon the alleged employer.”). [7] [8] This “economic reality” or “economic dependence” inquiry involves a number of factors, including WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 415 of 520 PageID 1051 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 the degree of control exercised by the alleged employer; the extent of the relative investments of the worker and the alleged employer; the degree to which the worker's opportunity for profit and loss is determined by the alleged employer; the skill and initiative required in performing the job; and the permanency of the relationship. *1284 Herman, 161 F.3d at 303; see also Donovan, 642 F.2d at 143; Usery, 527 F.2d at 1312. 22 No one isolated factor is determinative; instead, courts look to the “circumstances of the whole activity.” Rutherford Food, 331 U.S. at 730, 67 S.Ct. 1473; Herman, 161 F.3d at 303. These factors are used to gauge the degree to which the alleged employee is dependent upon the business with which he or she is connected, because dependence is the primary indicator of employee status. 23 Usery, 527 F.2d at 1311. Ultimately, 22 Some courts add a sixth factor, that of “the degree to which the alleged employee's tasks are integral to the employer's business.” Harrell, 992 F.Supp. at 1348; see also Santelices, 147 F.Supp.2d at 1319. 23 See Harrell, 992 F.Supp. at 1348 (“These factors are used because they are indicators of economic dependence.... The weight of each factor depends on the light it sheds on the alleged employee's dependence (or lack thereof) on the alleged employer, which in turn depends on the facts of the case.”) (internal citation, quotation and punctuation omitted). the final and determinative question must be whether the total of the testing establishes the personnel are so dependent upon the business with which they are connected that they come within the protection of FLSA (sic) or are sufficiently independent to lie outside of its ambit. Id. at 1311–12. This “dependency” question may be broken down into two factors: “(1) how specialized the nature of the work is, and (2) whether the individual is in business for himself.” Halferty v. Pulse Drug Co., Inc., 821 F.2d 261, 265 n. 3 (5th Cir.1987) (internal citation and quotation omitted); see also Mednick v. Albert Enters., Inc., 508 F.2d 297, 302 (5th Cir.1975) (“The concept has also been put in terms of whether the individual is in business for himself.”) (internal citation and quotation omitted). B. Analysis 1) Degree of control by SFEBI [9] SFEBI makes a number of arguments that it alleges support its position that the Plaintiffs were independent contractors, including that: (1) it had minimal control over the Plaintiffs, and that under the Independent Contractor Agreement, SFEBI had no right to exercise control over the manner in which the Plaintiffs worked; (2) any monitoring it did was done at the behest of its customers, who require strict compliance with the terms of the contracts between SFEBI and its customers; 24 (3) the Plaintiffs could choose how much and when to work, and could accept or reject additional routes; (4) the Plaintiffs could hire their own employees, and the Plaintiffs' work was sometimes performed by their relatives or friends, who the Plaintiffs then paid out of their own compensation; and (5) requirements such as the wearing of uniforms and/or identification badges are imposed by the customer, not by SFEBI. 25 24 The Defendant's reasoning is circular. Any employer's business is, in essence, directed by the needs of its customers. 25 SFEBI thus makes a number arguments about what the Plaintiffs could have done. The fact that the Plaintiffs could do certain things, however, is not determinative, as “it is only what activity that [the individuals] actually engaged in that is of any consideration.” Halferty, 821 F.2d at 266; see also Usery, 527 F.2d at 1312 (“It is not significant how one could have acted under the contract terms. The controlling economic realities are reflected by the way one actually acts.”) (internal quotation omitted). [10] The Plaintiffs, on the other hand, have offered evidence showing that: (1) they were assigned to particular routes, which they were unable to choose, negotiate *1285 or reject; (2) they were given detailed instructions concerning these routes, including what roads to take and what times to be at certain locations; (3) they were frequently monitored via radio and were urged to complete their routes faster; (4) they could not request or decline additional work; (5) they could not pick their WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 416 of 520 PageID 1052 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 own replacements; (6) they were unable to hire drivers to work for them; and (7) that they simply followed orders. “Control is only significant when it shows an individual exerts such a control over a meaningful part of the business that she stands as a separate economic entity.” Usery, 527 F.2d at 1312–13. The Plaintiffs have offered sufficient evidence to create an issue of fact as to whether they actually were able to exert control over a meaningful part of their work, and thus the Court is unable to make a final determination on this issue. 26 26 The fact that the contracts identified the Plaintiffs as independent contractors, and that their taxes were handled as if they were independent contractors has little relevance. Baker v. Barnard Constr. Co., Inc., 860 F.Supp. 766, 772 (D.N.M.1994) (“An employee is not permitted to waive employee status.”). This is particularly true in this case, where the Plaintiffs did not have the ability to negotiate whether they would be treated as independent contractors, and were identified as independent contractors on their tax forms as a result of SFEBI's non-negotiable policy. Id. at 772–73; see also Rutherford Food, 331 U.S. at 729, 67 S.Ct. 1473 (label the parties put on the relationship is not determinative); Mednick, 508 F.2d at 302–303 (“It is clear beyond peradventure that the parties' attempt to fasten a name of ‘independent contractor’ or ‘employment’ to their relationship by their own agreement—or, worse, where one party imposes a name on the other—will avail them little in ascertaining what the relationship is for purposes of the F.L.S.A. or similar legislation.... An employer cannot saddle a worker with the status of independent contractor, thereby relieving itself of its duties under the F.L.S.A., by granting him some legal powers where the economic reality is that the worker is not and never has been independently in the business which the employer would have him operate.”). 2) Relative investments SFEBI argues that: (1) the Plaintiffs were solely responsible for the capital investment in their vehicles and equipment; (2) Plaintiffs were responsible for their own expenses; (3) Plaintiffs were responsible for their own taxes; and (4) SFEBI has a relatively small investment in the central Florida area in that it had no offices, only one employee, and did not own the vehicles the Plaintiffs used. The Plaintiffs point out that a car is an essential vehicle in most households, and the Court notes a lack of evidence suggesting that the Plaintiffs purchased their cars for the primary purpose of their work for SFEBI. See Herman, 161 F.3d at 304 (noting that investment in a vehicle is “somewhat diluted when one considers that the vehicle is also used by most drivers for personal purposes”). Neither side has offered evidence demonstrating the relative investments made by either party in relation to the business at hand. 27 Accordingly, because the Court cannot make accurate comparisons of the investments made by the parties, the Court is unable to make a determination on this factor. 27 Julian Preciado estimates that he spent approximately $820 per month on gas, insurance and vehicle repairs, and $30 per month for his radio/phone. (Doc. 38 at 9; Doc. 39 at 11). Nhora Vargas estimates that she spent $650 per month on gas and insurance. (Doc. 40, Att. 1 at 9). Presumably, these amounts approximate the expenditures by each Plaintiff, but the depositions do not make this clear. 3) Opportunity for profit and loss SFEBI asserts that (1) the Plaintiffs were paid on a commission basis; (2) the amount the Plaintiffs earned was determined by their ability to accept or reject *1286 additional work, and by their skill and ability in performing their tasks; and (3) the Plaintiffs assumed the risk of loss to the equipment and managed their own operating expenses. In contrast, the evidence from the Plaintiffs suggests that the Plaintiffs actually were unable to request additional work in order to make more money, and instead additional work was assigned to them and they often had to wait for more than a week to discover how much additional money they made as a result. 28 SFEBI argues that the Plaintiffs had the ability to lower their costs, such as by decreasing the gas they used by purchasing a more fuel-efficient car. While theoretically possible, there is little to no evidence demonstrating that the Plaintiffs actually were able to (or in fact did) reduce their costs through any means. Moreover, any such cost reduction would likely be de minimus in relation to the overall “cost” of providing the service. Finally, the fact that an individual could request more work or re-negotiate his or her compensation is not indicative of independent contractor status, because any employee can do those things as well. Halferty, 821 F.2d at 266. The Court finds that there is a dispute as to material issues of fact on this element, and thus makes no determination at this time. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 417 of 520 PageID 1053 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 28 Because it appears that SFEBI controlled the primary determining factor governing whether the Plaintiffs could increase their earnings—the ability to perform additional work—these facts indicate that the Plaintiffs were employees, not independent contractors. See Usery, 527 F.2d at 1313. 4) Skill and initiative required [11] [12] [13] A lack of specialization indicates that an individual is an employee, not an independent contractor. Halferty, 821 F.2d at 267; Gustafson v. Bell Atlantic Corp., 171 F.Supp.2d 311, 324 (S.D.N.Y.2001). Further, “[r]outine work which requires industry and efficiency is not indicative of independence and nonemployee status.” Usery, 527 F.2d at 1314. Finally, even if an individual has specialized skills, that is not indicative of independent contractor status where the individual does not use those skills in an independent fashion. Baker, 860 F.Supp. at 776. SFEBI argues that the Plaintiffs: (1) needed additional skills beyond simply the ability to drive; (2) had managerial control over their expenses; (3) could negotiate for higher commissions and hire agents to cover their routes; and (4) could take on additional responsibilities. As the Plaintiffs point out, it appears that they had little opportunity to exercise any skill other than the ability to pilot their vehicles swiftly and safely along their routes. They received little to no training directly from SFEBI, and instead were given brief instructions by the driver who had previously covered that route. They were given detailed manifests listing routes to be followed and specific times at which they had to arrive at specific locations. Further, they were told what roads to use, and had no discretion to try other means of serving their routes. Finally, the Plaintiffs have offered evidence suggesting that they were unable to request additional work or to choose more lucrative routes, thus indicating a lack of ability to exercise initiative. These facts indicate that the Plaintiffs did not exercise skill or initiative in such a manner as to suggest that they operated as independent contractors. See also Ansoumana v. Gristede's Operating Corp., 255 F.Supp.2d 184, 191 (S.D.N.Y.2003) (noting that delivery person needed little skill or initiative to find his way from a store to a customer's residence); Bonnetts v. Arctic Express, Inc., 7 F.Supp.2d 977, 982 (S.D.Ohio 1998) (if defendant exerted significant control over *1287 plaintiff's route selection and other aspects of his job, plaintiff did not use his skills in an independent manner consistent with status as an independent contractor). 5) Permanency of the relationship SFEBI points out that the Independent Contractor Agreements were terminable upon twenty-four hours' notice and that the Plaintiffs were free to work for other courier companies during their time with SFEBI. The Plaintiffs offer no meaningful opposition to this assertion, other than to point out that various individuals worked for SFEBI for more than two years. These facts indicate that the nature of the Plaintiffs' relationship with SFEBI was that of an independent contractor. See Herman, 161 F.3d at 304 (permanency factor pointed to independent contractor status where drivers worked for defendant for a short time, could work for other courier services, and governing contract did not contain a non-compete clause). 6) Whether Plaintiffs' services were integral to SFEBI's business SFEBI does not address this issue. In any event, it cannot reasonably be disputed that SFEBI operates a courier business, the Plaintiffs were their couriers, and without the Plaintiffs' services, SFEBI would have been unable to perform its business operations. The Plaintiffs' services thus were integral to SFEBI's business, indicating an employee-employer relationship. See Ansoumana v. Gristede's Operating Corp., 255 F.Supp.2d 184, 191–92 (S.D.N.Y.2003) (where defendant was engaged primarily in business of providing delivery services, and plaintiffs performed the actual delivery work, plaintiffs' services constituted an integral part of the defendant's business); Bonnetts, 7 F.Supp.2d at 985. C. The “Circumstances of the Whole Activity” Ultimately, the Court must determine whether the Plaintiffs were dependent upon SFEBL The “economic dependence” at issue “is dependence on that job for that income to be continued and not necessarily for complete sustenance.” Halferty, 821 F.2d at 267. Further, “the proper test of economic dependence mandates consideration of all the factors, and in light of such consideration examines whether the workers are dependent on a particular business or organization for their continued employment in that line of business.” Id. at 267–68 (internal citation and quotation omitted); see also Gustafson v. Bell Atlantic Corp., 171 F.Supp.2d 311, WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 418 of 520 PageID 1054 Molina v. South Florida Exp. Bankserv, Inc., 420 F.Supp.2d 1276 (2006) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 324 (S.D.N.Y.2001) (“[T]he ultimate concern is whether, as a matter of economic reality, the workers depend upon someone else's business for the opportunity to render service or are in the business for themselves.”) (internal citation and quotation omitted). A review of the factors, and the evidence pertinent to each, suggests that, notwithstanding the contractual identification of the Plaintiffs as independent contractors and SFEBI's attempts to structure the relationship accordingly, the Plaintiffs actually served in an employee relationship with SFEBI. It does not appear that the Plaintiffs were so independent of SFEBI as to be in business for themselves and instead it appears that the Plaintiffs depended on SFEBI for their employment in the courier business. However, some factors appear to weigh in favor of SFEBI's assertion that the Plaintiffs were independent contractors. At this point, however, the Court cannot make a final determination on several of the “dependence” factors, and there are enough disputed factual issues to prevent the Court from making a conclusive ruling at this time as to the *1288 nature of the Plaintiffs' relationship with SFEBI. IV. Conclusion For the reasons stated herein, the Court finds that there are disputed issues of fact to be decided, and therefore summary judgment is not appropriate. Accordingly, it is ORDERED THAT the Defendant, SFEBI's Motion for Summary Judgment (Doc. 37) is DENIED. All Citations 420 F.Supp.2d 1276 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 419 of 520 PageID 1055 Moore v. Advanced Cable Contractors, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 3991966 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Kidd v. DirecTV, LLC, C.D.Cal., November 2, 2017 2013 WL 3991966 Only the Westlaw citation is currently available. United States District Court, N.D. Georgia, Atlanta Division. Derek MOORE, on behalf of himself and others similarly situated, Plaintiffs, v. ADVANCED CABLE CONTRACTORS, INC., and Lisa Adcox Meyer, Defendants. Civil Action No. 1:12–CV–00115–RWS. | Aug. 1, 2013. Attorneys and Law Firms David E. Gevertz, Kathryn Joann Hinton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Atlanta, GA, for Defendants. ORDER RICHARD W. STORY, District Judge. *1 This case comes before the Court on Plaintiffs' Motion for Summary Judgment [101] and Defendants' Motion for Partial Summary Judgment [136]. After reviewing the record, the Court enters the following Order. Background Defendant Advanced Cable Contractors, Inc. (“Advanced Cable”) is a cable installation and sales contractor located in Marietta, Georgia. (Dkt. [136–2] ¶ 1; Dkt. [162–1] ¶ 1.) Defendant Lisa Adcox Meyer (“Meyer”) is the owner of Advanced Cable and assists in the management and operation of the company. (Dkt. [136–2] ¶ 2; Dkt. [162–1] ¶ 2.) Meyer has been involved in the cable contractor industry since the mid–1990s, when she engaged in direct sales for Comcast as a sub- contractor of a Comcast contractor called Cable Sales, Inc. (Dkt. [136–2] ¶ 3; Dkt. [162–1] ¶ 3.) Following her employment with Cable Sales, Meyer started Advanced Cable in approximately 2003–2004. (Dkt. [136–2] ¶ 4; Dkt. [162–1] ¶ 4.) Advanced Cable is in the business of selling cable, internet, and telephone installation services to cable companies. (Dkt. [136–2] ¶ 6; Dkt. [162–1] ¶ 6.) Advanced Cable's main client is Comcast Cable, for which it installs cable, internet, and phone equipment in customer homes, and sells Comcast products and services directly to the public. (Dkt. [136–2] ¶ 8; Dkt. [162–1] ¶ 8.) Since at least January 2009, Advanced Cable's installation work has constituted more than 95% of the company's annual sales revenue. The remainder of the company's revenue is derived from Advanced Cable's sales-related services. (Dkt. [136–2] ¶ 9; Dkt. [162–1] ¶ 9.) Comcast pays Advanced Cable for each billable task its Installation Technicians (“technicians”) complete. Pursuant to a contract between the two parties, Comcast pays Advanced Cable a predetermined amount for completion of each task. (Dkt. [136–2] ¶ 10; Dkt. [162– 1] ¶ 10.) Comcast then passes on the cost of Advanced Cable's work to its customers in the form of cable and internet bills, which include installation fees. (Dkt. [136– 2] ¶ 11; Dkt. [162–1] ¶ 11.) The manner in which Comcast determines the amount paid for each task is as follows: Comcast assigns a certain number of units to each billable task. Each unit is approximately five minutes, so the number of units assigned to each task corresponds to the total amount of time Comcast estimates should be needed to complete the task. Comcast then bases the amount paid for the task on the number of units assigned to it. The higher the number of units assigned to a task, the higher the compensation for its completion. (Dkt. [136–2] ¶ 12; Dkt. [162–1] ¶ 12.) Prior to December 23, 2011, Advanced Cable compensated its technicians via a commission-based pay system developed by Meyer. (Dkt. [136–2] ¶ 15; Dkt. [162– 1] ¶ 15.) Under this system, technicians were paid based on the number and type of job tasks they performed each week. (Dkt. [136–2] ¶ 16; Dkt. [162–1] ¶ 16.) Technicians were paid a predetermined amount per task completed, and the amount paid varied based on the type of task. (Dkt. [136–2] ¶ 17; Dkt. [162–1] ¶ 17.) Technicians received the same amount for completion of each task regardless of the amount of time it took to complete it. (Dkt. [136– 2] ¶ 19; Dkt. [162–1] ¶ 19.) The rates set by Advanced WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 420 of 520 PageID 1056 Moore v. Advanced Cable Contractors, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 3991966 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Cable were not based on the amount Comcast paid for the work. (Dkt. [136–2] ¶ 21; Dkt. [162–1] ¶ 21.) Thus, the amount paid to technicians did not vary with the amount charged to Comcast, and vice versa. (Dkt. [136– 2] ¶ 22; Dkt. [162–1] ¶ 22.) Instead, Advanced Cable based the rates set for each task on several factors designed to encourage technicians to work efficiently and productively and increase the company's revenues. 1 (Dkt. [136–2] ¶ 23; Dkt. [162–1] ¶ 23.) 1 Such factors included “anticipated demand from Comcast customers for a particular service[,]” (Dkt. [136–2] ¶ 24; Dkt. [162–1] ¶ 24) “the level of installation difficulty[,]” (Dkt. [136–2] ¶ 25; Dkt. [162–1] ¶ 25) “the importance of the task to overall job quality and, ultimately, Advanced Cable's revenue[,]” (Dkt. [136–2] ¶ 26; Dkt. [162–1] ¶ 26) and “the frequency with which each task occurred [.]” (Dkt. [136–2] ¶ 31; Dkt. [162–1] ¶ 31.) *2 Plaintiff Derek Moore and the opt-in Plaintiffs (Joshua Sterle, Patrick Thompson, Joseph Murchison, Monty Dannenberg, Jesse Dimiceli, Matthew Mayers, Raymond Canty, Jesse Peterson, Luther DeLoach, Ivan Carroll, Florencio Grasetti, Danny Matos, Leonardo Penn, Rowan Dublin, Lamar Weeks, and Derek Hall) (“the Plaintiffs”) worked for Advanced Cable for varying periods of time between 2009 and 2011 as technicians. (Dkt. [136–2] ¶ 13; Dkt. [162–1] ¶ 13.) As technicians, Plaintiffs installed cable, internet, and phone equipment in Comcast customers' homes. (Dkt. [136–2] ¶ 14; Dkt. [162– 1] ¶ 14.) Plaintiffs initiated the instant litigation on January 12, 2012, by filing a Complaint [1] with the United States District Court for the Northern District of Georgia. Plaintiffs subsequently filed an Amended Complaint [7] on January 17, 2012. Plaintiffs' Amended Complaint asserts claims against Defendants for unpaid overtime compensation under the Fair Labor Standards Act (“FLSA”) (Count I) and for failure to keep and preserve adequate and accurate employment records as required by the FLSA (Count II). (See generally Pls.' Am. Compl., Dkt. [7].) Plaintiffs now move the Court for an order granting them summary judgment on all elements of their claims. Additionally, Defendants now move for partial summary judgment in their favor that their payment scheme is a commission-based system, which is an element of their affirmative defense that Plaintiffs are exempt from overtime compensation as provided by FLSA § 7(i), 29 U.S.C. § 207(i). After reviewing the record, it appears that the following facts are disputed: (1) the amount of time per week each Plaintiff worked, (2) the average hourly rate at which each Plaintiff was paid based on that work, (3) whether Defendants' payment scheme was “commission-based,” and (4) whether Defendants wilfully violated the FLSA. Discussion I. Legal Standard Federal Rule of Civil Procedure (“Rule”) 56 requires that summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The moving party bears ‘the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted)). Where the moving party makes such a showing, the burden shifts to the non- movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). *3 The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249–50. In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). But, the court is bound only to draw those inferences which are reasonable. “Where the record taken as a whole could not lead a rational trier of fact to find WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 421 of 520 PageID 1057 Moore v. Advanced Cable Contractors, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 3991966 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (internal citations omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met its burden under Rule 56(c), the non-moving party “must do more than simply show there is some metaphysical doubt as to the material facts”). II. Analysis A. Count I Plaintiffs assert a claim against Defendants for unpaid overtime compensation and liquidated damages as a result of Defendants alleged violation of the FLSA, 29 U.S.C. § 201 et seq. (Pls.' Am. Compl., Dkt. [7] ¶ 1.) In order to prevail on a claim for unpaid overtime compensation, “a FLSA plaintiff must demonstrate that (1) he or she worked overtime without compensation and (2) the [defendant] knew or should have known of the overtime work.” Allen v. Board of Pub. Educ. for Bibb County, 495 F.3d 1306, 1314–15 (11th Cir.2007). Plaintiffs allege they worked in excess of forty hours per week during the relevant time period as employees of Defendants without receiving overtime compensation as required by the FLSA. (Pls.' Am. Compl., Dkt. [7] ¶ 30.) Defendants have asserted the affirmative defense that Plaintiffs are employees exempt from overtime compensation under 29 U.S.C. § 207(i), which states: No employer shall be deemed to have violated subsection (a) of this section by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein (40 hours), if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. Defendants assert, and Plaintiffs do not dispute, that Advanced Cable is a retail and service establishment for the purposes of the FLSA. 2 Therefore, for Defendants to prevail on their affirmative defense, they must show that Plaintiffs were paid in excess of one and one-half times the minimum hourly rate ($10.875) and that they were paid according to a commission-based compensation scheme. 2 See also Owopetu v. Nationwide CATV Auditing Servs., Inc., 2011 WL 883703 (D.Vt. Mar.11, 2011) and Owopetu v. Nationwide CATV Auditing Servs., Inc., 2011 WL 4433159 (D.Vt. Sept.21, 2011) (finding that employer conducting almost identical activities as Defendants, namely installing and maintaining telecommunications hardware in customers' homes for a service provider, was a “retail and service establishment” for the purposes of an FLSA exemption.); Gruchy v. DirectTech Del., Inc., 2010 WL 3835007 (D.Mass. Sept.30, 2010) (holding the same for an employer who performed similar services for a satellite television provider.). *4 Plaintiffs have moved for summary judgment on all of their claims. Defendants have moved for partial summary judgment, pertaining solely to whether their payment scheme is a commission-based system. The Court will now address the motions on the merits. i. Plaintiffs' Motion for Summary Judgment [101] First, both parties have submitted fairly extensive evidence in attempts to show the amount of time Plaintiffs worked, as well as what they were paid over that time, in order to produce an average wage rate. Plaintiffs argue that Defendants' record-keeping practices created falsehoods and discrepancies in regard to the amount of time Plaintiffs worked, and therefore the wage rate at which they were paid. Defendants respond that Plaintiffs' estimations of the hours they worked are grossly inflated, and as such should be disregarded by the Court. The Court disagrees with Defendants' request to disregard Plaintiffs' estimates but also declines to take Plaintiffs' estimates at face value. The contradictory evidence introduced by both parties clearly shows that both the amount of time Plaintiffs worked and the rate at which they were compensated are disputed material facts. There WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 422 of 520 PageID 1058 Moore v. Advanced Cable Contractors, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 3991966 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 being a genuine issue of material fact regarding an essential element of Defendants' affirmative defense, a grant of summary judgment in favor of Plaintiffs would be inappropriate. Accordingly, Plaintiffs' Motion for Summary Judgment [101], to the extent it covers Count I, is due to be DENIED. ii. Defendants' Motion for Partial Summary Judgment [136] Second, Plaintiffs argue that if a compensation scheme lacks proportionality, that is, if the amount an employee is paid is not directly correlated with the amount the employer charges for that good or service, then a compensation scheme cannot be deemed “commission- based” as a matter of law. The Court disagrees with Plaintiffs' contention. While the Court notes that employers bear the burden of proof in showing they are “plainly and unmistakably within the terms and spirit of the exemption” and that evidence on such an issue is to be construed liberally in the employee's favor, the Court finds that Defendants did in fact meet their burden of proof on this element. Alvarez Perez v. Sanford–Orlando Kennel Club, Inc., 515 F.3d 1150, 1156 (11th Cir.2008); see generally Morgan v. Family Dollar Stores, 551 F.3d 1233 (11th Cir.2008). The Eleventh Circuit has previously deemed an employer with a compensation scheme substantially similar to that of Defendants to fall under the “commission” exemption to overtime created by 29 U.S.C. § 207(i). In Klinedinst v. Swift Invs., Inc., the defendant employer paid his employees, automobile painters, on the basis of “flagged hours,” which essentially assigned a certain time value to the painting of a certain portion of an automobile. 260 F.3d 1251, 1253 (11th Cir.2001). Employees were paid based on the amount of “flagged hours” of tasks they had completed multiplied by their hourly rate, which was set by the employer based on their experience and skill level. Id. Employees were paid for the entire “flagged hour” time value, regardless of how long it took them to complete the given task. Id. The Court of Appeals reasoned that the flat rate payment plan qualified as a commission-based payment system as a matter of law because it incentivized employees to work efficiently, which allowed the employer to take on more customers, which in turn allowed employees the opportunity to make more money. Id. at 1256. The Court stated “[t]he function of a commission exemption as embodied by section 7(i) is to ensure that workers who are paid on a commission basis are guaranteed to receive at least the legislated minimum wage without requiring them to work overtime for it.” Id. *5 Plaintiffs' own deposition testimony states that there were ample opportunities for technicians to get additional work if they completed their scheduled appointments ahead of time and that technicians were paid extra if they sold customers upgraded service packages or hardware not on their scheduled work-orders. This is clearly an incentive-based system, and while Plaintiffs argue that because each installation took a set amount of time there was no “incentive to hustle,” the same can be said for painting automobiles. Like the employer in Klinedinst, which paid its automobile painters on a wage scale determined by their skill and experience, Defendants' compensation rates for technicians “varied based on the skill and experience of each Tech, such that the more skilled and experienced Techs were paid more per task than less skilled and experienced Techs.” (Dkt. [136–2] ¶ 18; see Dkt. [138] ¶ 18. 3 ) 3 Plaintiffs deny this statement of fact by Defendants, but their subsequent explanation in no way relates to said statement of fact. This fact is considered undisputed. The facts of Klinedinst and the case at bar are significantly similar, and as such, the Court cannot agree with Plaintiffs' assertion that Klinedinst is inapplicable to the case at bar. Proportionality between employees' wages and employers' gains is an important part of a commission-based compensation system, but to say that any compensation system which does not pay an employee a direct percentage of their employer's gain is not a commission-based system is too narrow of a construction. The incentive of being paid a flat rate for work regardless of how long it takes presumably increases efficiency, which would increase the number of customers the employer can serve. This in turn increases the amount of work available to employees, so their prospective potential earnings are still proportional, although not as an exact percentage, to their employers' potential earnings. In accordance with the finding that Defendants' compensation scheme was commission-based, the Court finds Defendants' Motion for Partial Summary Judgment [136] is due to be GRANTED. B. Count II WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 423 of 520 PageID 1059 Moore v. Advanced Cable Contractors, Inc., Not Reported in F.Supp.2d (2013) 2013 WL 3991966 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Plaintiffs allege in Count II that Defendants “fail[ed] to make, keep, and preserve adequate and accurate records of the persons employed and of the wages, hours, and other conditions and practices of employment maintained by them[ ]” in violation of provisions of § § 11(c) and 15(a) (5) of the FLSA, 29 U.S.C. §§ 211(c) and 215(a) (5), and the Department of Labor regulations at 29 C.F.R. § 516. (Pls.' Am. Compl., Dkt. [7] ¶ 36.) Under the FLSA, an employer is required to “make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time[.]” 29 U.S.C. § 211(c). Plaintiffs allege that Defendants' records: (1) fail to identify and include the time Plaintiffs spent working at Defendants' warehouse at the beginning of each work day (Pls.' Mem. of Law in Supp. of Mot. for Summ. J. (“Pls.' Mem.”), Dkt. [101–1] at 4 of 32), (2) fail to identify a stop-time for Plaintiffs' last appointment on specific work days (id. at 5 of 32), (3) fail to show a start or stop time for appointments on given work days (id.), (4) fail to include the time Plaintiffs spent working at customers' homes on their last appointment of given work days after closing out customers' work orders (id. at 5–6 of 32), and (5) fail to include time that numerous installers spent working at home after their last appointments preparing reports. (Id. at 6 of 32.) Plaintiffs also allege that Defendants, or agents of Defendants, instructed opt- in Plaintiff Monty Dannenberg to alter technicians' time records, which was a willful violation of the FLSA. (Id. at 11–13 of 32.) *6 Defendants respond by explaining, point by point, why each of the alleged inaccuracies did not compromise the accuracy of their recording system as a whole. As to Plaintiffs' first contention, Defendants, citing Plaintiffs' own deposition testimony, state that the actual time spent at the warehouse was significantly lower than estimated by Plaintiffs. (Defs.' Resp. to Pls.' Mot. for Summ. J. (“Defs.' Resp.”), Dkt. [138] at 15 of 23.) As to Plaintiffs' second and fourth contentions, Defendants state that Plaintiffs were not allowed to close out a work order until completing the work at that customer's home. (Id.) As to Plaintiffs' third contention, Defendants state that non-existent stop or start times are a result of cancelled or rescheduled appointments. (Id. at 14 of 23.) As to Plaintiffs' fifth contention, Defendants state, citing Plaintiffs' own deposition testimony, that Plaintiffs' estimation of the amount of time spent preparing reports was significantly higher than the actual time spent on them. (Id.) Finally, as to Plaintiffs' allegations concerning the alteration of employment records, Defendants state that during his deposition testimony, Monty Dannenberg directly contradicted his prior statements about being instructed to, and in fact his ability to, alter the employee time records. (Id. at 20 of 23.) It is clear that there are disputed issues of material fact as to Count II, mainly regarding the effect, if any, of the alleged discrepancies and omissions in Defendants' time records on the overall adequacy and accuracy of Defendants' recording-keeping system. These facts must be submitted to a jury. Subject to a finding of liability, a jury must also determine whether Defendants wilfully violated the FLSA. As such, the Court finds Plaintiffs' Motion for Summary Judgment [101], to the extent it covers Count II, is due to be DENIED. Conclusion Based on the foregoing, Plaintiffs' Motion for Summary Judgment [101] is DENIED, and Defendants' Motion for Partial Summary Judgment [136] is GRANTED. The parties are ORDERED to submit a consolidated proposed pretrial order to the Court within thirty (30) days of the docketing of this Order. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 3991966 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 424 of 520 PageID 1060 Morrison v. Magic Carpet Aviation, 383 F.3d 1253 (2004) 150 Lab.Cas. P 34,933, 150 Lab.Cas. P 41,789, 9 Wage & Hour Cas.2d (BNA) 1569... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Hein v. IMS Gear Holding, Inc., N.D.Ga., January 31, 2018 383 F.3d 1253 United States Court of Appeals, Eleventh Circuit. David L. MORRISON, Plaintiff–Appellant, v. MAGIC CARPET AVIATION, a Delaware corporation, RDV Sports, Inc., a Michigan corporation, Harry Mitchel, individually, Alticor, Inc., a Michigan corporation, f.n.a. Amway Corporation, Defendants–Appellees. No. 03–15340. | Sept. 8, 2004. Synopsis Background: Terminated pilot brought action against employers and client, alleging unlawful retaliation in violation of the Family and Medical Leave Act (FMLA). Defendants moved for summary judgment. The United States District Court for the Middle District of Florida, No. 01-00749-CV-ORL-22- JGG, Anne C. Conway, J., granted motion and pilot appealed. Holdings: The Court of Appeals, Tjoflat, Circuit Judge, held that: [1] client was not pilot's “employer”; [2] client was not an “integrated employer”; and [3] company that provided aviation services and its client were not “joint employers” of pilot. Affirmed. West Headnotes (5) [1] Federal Courts Summary judgment On appeal of a district court's grant of summary judgment, the Court of Appeals reviews the district court's legal conclusions under a de novo standard. 1 Cases that cite this headnote [2] Labor and Employment Employers Affected In considering whether an entity is an individual's employer, for purposes of the FMLA, courts consider: (1) whether or not the employment took place on the premises of the alleged employer; (2) how much control the alleged employer exerted on the employees; and (3) whether or not the alleged employer had the power to fire, hire, or modify the employment condition of the employees. Family and Medical Leave Act of 1993, § 2(2)(B)(ii), 29 U.S.C.A. § 2611(2)(B) (ii). 16 Cases that cite this headnote [3] Labor and Employment Multiple entities Client of company that provided aviation services was not an “employer,” for purposes of pilot's claim against client under the FMLA; although client could exert significant influence over aviation company's employment decisions and pilot was required to wear client's identification badge, attend client's orientation, and was listed as client's staff, client did not actually have the power to hire or fire pilot, lease agreement between client and aviation company did not give client any meaningful direct control over the airplane itself, and aviation company had exclusive control in assigning crew members to particular flights. Family and Medical Leave Act of 1993, § 2(2)(B)(ii), 29 U.S.C.A. § 2611(2)(B)(ii). 5 Cases that cite this headnote [4] Labor and Employment Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 425 of 520 PageID 1061 Morrison v. Magic Carpet Aviation, 383 F.3d 1253 (2004) 150 Lab.Cas. P 34,933, 150 Lab.Cas. P 41,789, 9 Wage & Hour Cas.2d (BNA) 1569... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Multiple entities Client of company that provided aviation services was not an “integrated employer,” for purposes of pilot's claim against company's client under the FMLA; although same family owned the client and the corporation of which aviation company was a subsidiary, and client looked to aviation company for advice in restructuring its internal operation, the client had also looked to a variety of other major companies for advice in restructuring, and the common ownership of two corporations was not enough to establish that they were integrated into one operation for FMLA purposes. Family and Medical Leave Act of 1993, § 2(2)(B)(ii), 29 U.S.C.A. § 2611(2)(B) (ii); 29 C.F.R. § 825.104(c)(2). 15 Cases that cite this headnote [5] Labor and Employment Multiple entities Company that provided aviation services and its client were not “joint employers” of pilot, for purposes of pilot's FMLA claim; aviation company did not share pilot's services, and client lacked direct control over either pilot or aviation company. Family and Medical Leave Act of 1993, § 2(2)(B)(ii), 29 U.S.C.A. § 2611(2)(B)(ii); 29 C.F.R. § 825.106(a). 3 Cases that cite this headnote Attorneys and Law Firms *1254 David H. Simmons, Daniel J. O'Malley, Drage, deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, FL, for Plaintiff–Appellant. Richard C. Swank, Donald E. Christopher, Litchford & Christopher, P.A., Orlando, FL, for Defendants– Appellees. Appeal from the United States District Court for the Middle District of Florida. Before EDMONDSON, Chief Judge, and TJOFLAT and COX, Circuit Judges. Opinion TJOFLAT, Circuit Judge: Appellant David Morrison was a pilot for Magic Carpet Aviation, Inc. 1 He claims that his supervisor at Magic Carpet, Harry Mitchel, violated the Family Medical Leave Act of 1993 (FMLA), 107 Stat. 6, 29 U.S.C. §§ 2601–2654, by letting him take only two, rather than four, weeks off from work to deal with depression. When Morrison requested additional time off, Mitchel fired him. Morrison filed suit under the FMLA against Mitchel and three entities: (1) Magic Carpet, (2) Amway Corp., of which Magic Carpet was a wholly owned subsidiary, and (3) RDV Sports, Inc., which owned Orlando Magic, Ltd., a company that had a contract with Magic Carpet to fly players and staff for the Orlando Magic NBA basketball team around the country. 1 Because Magic Carpet was a wholly owned subsidiary of Amway, Morrison was also an employee of Amway. Since Amway did not have any employees within 75 miles of his Magic Carpet worksite, however, that fact does not help Morrison's case. The district court granted summary judgment to the defendants on Morrison's FMLA claims because, in order for the statute to apply, the employer(s) at issue must have at least 50 employees within a 75 mile radius of the worksite. See 29 U.S.C. § 2611(2)(B)(ii). The court held that although Magic Carpet and Amway (as Magic Carpet's complete owner) were Morrison's joint employers, they did not have enough employees to make the FMLA applicable. It also held that, as a matter of law, RDV Sports, Inc., was not Morrison's employer, integrated employer, or joint employer for purposes of the Act. Consequently, its employees could not be counted toward satisfying this requirement. In this appeal, Morrison challenges this latter ruling, contending that RDV Sports was his employer or, at the very least, his integrated or joint employer. [1] “When examining summary judgments, our review is plenary.” Ga.-Pac. Corp. v. Lieberam, 959 F.2d 901, 904 (11th Cir.1992). We review the district court's legal conclusions under a de novo standard. See Smith v. BellSouth Telecomms., Inc., 273 F.3d 1303, 1305 (11th Cir.2001) (holding, in the context of an appeal from a district court's grant of summary judgment, that “question [s] of law ... are review[ed] de novo”). The facts must Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 426 of 520 PageID 1062 Morrison v. Magic Carpet Aviation, 383 F.3d 1253 (2004) 150 Lab.Cas. P 34,933, 150 Lab.Cas. P 41,789, 9 Wage & Hour Cas.2d (BNA) 1569... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 be viewed in the light most favorable to the nonmovant. The court's ultimate conclusion as to whether these facts are sufficient *1255 to make RDV Morrison's employer under the FMLA is a mixed question of fact and law (involving the application of the law to particular facts) that is reviewed de novo. See Quik Cash Pawn & Jewelry, Inc. v. Sheriff of Broward County, 279 F.3d 1316, 1319 (11th Cir.2002) (“We review the trial court's grant of summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the nonmoving party....”). I. [2] RDV was clearly not Morrison's employer. In considering whether an entity is an individual's employer, we consider: (1) whether or not the employment took place on the premises of the alleged employer; (2) how much control the alleged employer exerted on the employees; and (3) whether or not the alleged employer had the power to fire, hire, or modify the employment condition of the employees. Welch v. Laney, 57 F.3d 1004, 1011 (11th Cir.1995) (quoting Wirtz v. Lone Star Steel Co., 405 F.2d 668, 669–70 (5th Cir.1968)). [3] The third factor in this test cuts against Morrison. While RDV Sports, as a major client of Magic Carpet, could undoubtedly exert significant influence over its employment decisions, it did not actually have the power to hire or fire him directly. The simple fact that a major client can pressure an employer into firing a particular individual does not transmute that client into that individual's employer. Our analysis of the first prong is somewhat complicated. Welch asks whether the worksite belonged to the employer, which raises the question of whether the employer must be the outright owner of the premises or if a leasehold interest would suffice. We do not read Welch as requiring fee simple ownership of the worksite; many companies, particularly in large cities, rent or lease office space in skyscrapers from the building's owners or a property management organization. Such a lessee undoubtedly “owns” the worksite of its employees for purposes of Welch, even though its claim to the property is only a leasehold. Morrison's worksite was, essentially, the Boeing airplane he flew. Magic Carpet leased the plane from its actual owner, whose identity is not pertinent to this suit. Orlando Magic, Ltd., which was wholly owned by RDV, had a timeshare agreement in which it leased the plane from Magic Carpet for the times when it needed to fly its players to various games. The district court held that this “agreement was essentially a lease between the parties.” As the owner of a leasehold interest in the airplane when it was being used to fly Orlando Magic players, Orlando Magic, Ltd., and hence RDV, could be thought of as the owner of Morrison's worksite at the relevant times. This particular lease agreement, however, greatly circumscribed RDV's control over both the plane and its crew. It stated: All flights conducted under this Agreement shall be under the operational control of Magic Carpet. For the purpose of this Agreement, operational control shall include, without limitation, exclusive control over: (i) all crew members; (ii) determination whether any particular flight may be safely operated; (iii) assignment of crew members to particular flights; (iv) initiation and termination of all flights; (v) directions to crew members to conduct flights; and (vi) dispatch or release of flights. While this agreement purports to lease the plane to RDV, it actually gave RDV no rights except to have its players sit back and be flown around. It did not give RDV any meaningful direct control over or in the worksite itself. Consequently, we *1256 agree with the district court's conclusion that the first prong is of no avail to Morrison —though not without significant hesitation. The second factor of the Welch test—the extent of control the alleged employer had over its putative employee —gives us even more pause, even though much of the evidence Morrison introduces to demonstrate that RDV had control over him is patently irrelevant. For example, the fact that it gave him various gifts and WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 427 of 520 PageID 1063 Morrison v. Magic Carpet Aviation, 383 F.3d 1253 (2004) 150 Lab.Cas. P 34,933, 150 Lab.Cas. P 41,789, 9 Wage & Hour Cas.2d (BNA) 1569... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 perquisites—including a holiday bonus, a discount at the Magic's FanAttic store, season tickets to Magic Games, invitations to RDV's summer picnic and Christmas party, and an invitation to volunteer at an Orlando Magic event —does not mean that it had control over him in any way. While, in the abstract, these facts are consistent with the existence of an employment relationship, and could be construed as even suggesting one in our everyday conception of the word, they do not show that RDV had control over him for purposes of the Welch test. Because the parties agreed that Welch governs this action, we cannot consider any ways in which these facts might tend to prove that RDV was Morrison's employer outside of the standards articulated in Welch. Moreover, even if we were to conclude that Welch was based on an antiquated or unduly narrow conception of employment —a point which we do not reach—we would still be bound to uphold it under the prior panel rule. See United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.1997) (“[U]nder the prior precedent rule, we are bound by our earlier panel holdings....”). Perhaps the best evidence of control Morrison offers is the fact that he was required to wear an RDV identification badge, Magic neckties, and a Magic parka. The district court found that Morrison had failed to introduce evidence that RDV specifically, rather than Magic Carpet, had required this. Consequently, there is no evidence that RDV had direct control over Morrison, rather than the indirect control over a service provider's employees that a customer may obtain by contracting with that service provider. Such indirect control does not amount to an employment relationship because the customer is in privity of contract with the service provider (which is itself an independent contractor of the customer), and not the service provider's employees. See, e.g., Moreau v. Air Fr., 343 F.3d 1179, 1190–91 (9th Cir.2003) (concluding that “Air France should not be treated as a joint employer of the ground handling service company employees,” even though Air France contracted with that company to provide services for its flights); Zhao v. Bebe Stores, Inc., 247 F.Supp.2d 1154, 1159–60 (C.D.Cal.2003) (declining to find that Bebe Stores was the employer of Apex's employees, despite the fact that Bebe hired Apex to produce some clothes that it sold, because “Apex had an ongoing business which hires, fires and supervises a significant number of employees who perform services for companies other than Bebe Stores”); see also Granse v. Brown Photo Co., No. 3–80–338, 1985 WL 26033, 1985 U.S. Dist. LEXIS 18318, at –39 (D.Minn. July 1, 1985) (holding that a service provider—a professional photographer—“was not an employee of his customer's.... The customers had no actual control over him other than the indirect control of the purse strings and whether to order and pay for additional prints based on the proofs.”). If RDV contracted with Magic Carpet to have Magic Carpet's employees wear RDP or Orlando Magic insignia, it is Magic Carpet, rather than RDV, who is compelling its employees to wear such apparel to satisfy its contractual obligations. Perhaps most persuasively, the agreement between Orlando Magic, Ltd., and *1257 Magic Carpet specified that “all crew members,” the “assignment of crew members to particular flights,” and “directions to crew members to conduct flights,” would be under the “exclusive control” of Magic Carpet. Morrison is hard pressed to overcome the plain language of this agreement, which expressly places exclusive control over him in Magic Carpet, rather than Orlando Magic, Ltd., and by extension RDV. Putting aside the issue of control, the three factors that trouble us most are that he was required to wear an RDV identification badge, that he was required to attend an employee orientation at RDV, and that he was listed in RDV's staff directory as an employee. These considerations do not easily fall within the Welch framework. Because Morrison failed to offer an employment-by-estoppel argument either below or on appeal, we need not consider this issue. See, e.g., Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (“[I]ssues not argued on appeal are deemed waived....”). For these reasons, we affirm the district court's conclusion that RDV is not Morrison's employer. II. [4] In the alternative, Morrison contends that RDV, along with Amway and Magic Carpet, was his “integrated employer.” The Department of Labor states that various companies may be an individual's “integrated employer” where they have “(i) Common management; (ii) Interrelation between operations; (iii) Centralized WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 428 of 520 PageID 1064 Morrison v. Magic Carpet Aviation, 383 F.3d 1253 (2004) 150 Lab.Cas. P 34,933, 150 Lab.Cas. P 41,789, 9 Wage & Hour Cas.2d (BNA) 1569... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 control of labor relations; and (iv) [A] [d]egree of common ownership/financial control.” 29 C.F.R. § 825.104(c)(2). Morrison fails to introduce any evidence concerning the first factor. Regarding the second factor, Morrison's only argument is that RDV looked to Amway for advice in restructuring its internal operations. The fact that RDV may have attempted to emulate Amway does not mean they were interrelated in any way. Moreover, Morrison fails to mention the district court's correct observation that RDV looked to a variety of other major companies for advice in its internal restructuring as well. Regarding the third prong, centralized control of labor relations, the most Morrison can point to is the fact that he was requested to attend an employee orientation at RDV when he was first hired. This is hardly enough to show centralized control over labor relations, much less that RDV and Magic Carpet were so integrated that they were, in effect, one entity. The final prong of this test is the only one Morrison has satisfied: the wealthy DeVos family owns both Amway and RDV. As a matter of law, we do not believe that common ownership of two corporations is enough for a jury to conclude that they were integrated into one operation for FMLA purposes. Consequently, the district court was correct in concluding that RDV was not Morrison's integrated employer. III. Morrison finally contends that RDV, Amway, and Magic Carpet were his “joint employers.” The Department of Labor states that various companies may be an individual's “joint employers”: Where there is an arrangement between employers to share an employee's services or to interchange employees; (2) Where one employer acts directly or indirectly in the interests of the other employer in relation to the employee; or, (3) Where the employers formatting may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, *1258 or is under common control with the other employer. 29 C.F.R. § 825.106(a). [5] Notwithstanding the existence of the timeshare agreement, Magic Carpet and RDV did not “share” Morrison's service. Morrison was a pilot for Magic Carpet whose job was to fly Magic Carpet's clients to their destinations. Moreover, as discussed above, RDV lacked direct control over either Morrison or Magic Carpet. Consequently, the joint employer test does not apply. The remainder of Morrison's contentions are merely restatements of his foregoing arguments and are wholly without merit. The judgment of the district court is, in its entirety, AFFIRMED. All Citations 383 F.3d 1253, 150 Lab.Cas. P 34,933, 150 Lab.Cas. P 41,789, 9 Wage & Hour Cas.2d (BNA) 1569, 29 NDLR P 13, 17 Fla. L. Weekly Fed. C 1027 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 429 of 520 PageID 1065 Paneto v. Motor Car Concepts II, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 328730, 12 Wage & Hour Cas.2d (BNA) 565 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 2007 WL 328730 United States District Court, M.D. Florida, Orlando Division. Jose A. PANETO, Plaintiff, v. MOTOR CAR CONCEPTS II, INC., d/ b/a Advanced Auto Services, Inc., Hakan Ozdemir, Serhat Ozkan, Defendants. No. 606CV-828-ORL-18KRS. | Jan. 31, 2007. Attorneys and Law Firms Konstatine E. Pantas, Pantas Law Firm, P.A., Orlando, FL, for Plaintiff. J. Scott Hudson, Hudson Law Firm PLLC, Robert J. Stovash, Robert L. Case, Stovash, Case & Tingley, P.A., Orlando, FL, for Defendants. ORDER SHARP, Senior J. *1 This cause comes before the Court upon Defendants' Motion for Summary Judgment (Doc. 17, filed October 30, 2006), to which Plaintiff responded in opposition. (Doc. 22, filed December 7, 2006. 1 ) Plaintiff Jose A. Paneto (“Plaintiff”) brings this action against Motor Car Concepts II, Inc. (“MCC”), Hakan Ozdemir, and Serhat Ozkan (collectively, “Defendants”), asserting an action for unpaid overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. After reviewing the motions and memoranda provided by each party, the Court grants summary judgment to Defendants. 1 The Court issued a Milburn Order on November 2, 2006 (Doc. 18), establishing the deadline for filing a response to Defendants' Motion for Summary Judgment at December 1, 2006. Subsequently, Plaintiff filed a Motion for Extension of Time to File a Response (Doc. 19, filed December 1, 2006), which was denied by the Court. (Doc. 21, filed December 7, 2006.) Only then did Plaintiff file his Response in Opposition. Out of fairness to the Plaintiff himself, the Court has still considered his attorney's untimely response to the Motion for Summary Judgment. However, such concessions are unlikely to be made in the future. I. BACKGROUND Plaintiff was employed by MCC as a mechanic from approximately August 21, 2005, through January 29, 2006. Plaintiff's job duties as a mechanic included the following: (a) inspecting and servicing used cars and trucks owned by MCC or sold by MCC to customers; (b) making repairs or adjustments to used cars and trucks to place them in salable condition; (c) using hand tools, portable power tools, and specification sheets in connection with performing work on used cars and trucks; (d) inspecting cars and trucks for obvious damage and missing components; (e) inspecting cars and trucks for loose, defective or misaligned items, such as trim, doors, and hardware, and positioning said items according to specifications; (f) testing steering, brakes, transmission, and engine operation of used cars and trucks; (g) testing power equipment, such as electric windows, seats, radio, horn, lights, and directional signals to ensure proper operation; (h) inspecting surfaces of used cars and trucks to detect chips and scratches in paint and touching up imperfections; (I) installing optional equipment specified by MCC or MCC customers, such as outside mirrors, rugs, and seat covers; installing standard components, such as hubcaps and wiper blades; and (j) installing or repairing major mechanical, hydraulic, or electromechanical equipment. (Doc. 17 at 4.) During this time period, Plaintiff claims that he worked numerous weeks in excess of forty hours a week, but was WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 430 of 520 PageID 1066 Paneto v. Motor Car Concepts II, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 328730, 12 Wage & Hour Cas.2d (BNA) 565 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 not compensated for overtime (at the rate of one and one-half times the regular rate) for these excess hours. Based on this claim, Plaintiff filed two counts asserting a violation of the overtime provisions of the FLSA. Count I is a demand for unpaid wages and overtime (as well as attorney's fees and liquidated damages); Count II is a collective action on behalf of all similarly situated plaintiffs who were employed by MCC. Plaintiff specifically claims that MCC's “policy of misclassifying employees as exempt is both unlawful and company-wide and each non-exempt employee employed by Defendant during the three years prior to the filing of this action have been deprived of overtime.” (Doc. 1 ¶ 16.) II. DISCUSSION A. Summary Judgment Standard A court will grant summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see, e.g., Stachel v. City of Cape Canaveral, 51 F.Supp.2d 1326, 1329 (M.D.Fla.1999). Material facts are those that may affect the outcome of the case under the applicable substantive law. Disputed issues of material fact preclude the entry of summary judgment, but factual disputes that are irrelevant or unnecessary do not. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). *2 The moving party bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the moving party has satisfied its burden, the Court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party may rely solely on the pleadings to satisfy its burden. Celotex, 477 U.S. at 323-24. A non-moving party bearing the burden of proof, however, must go beyond the pleadings and submit affidavits, depositions, answers to interrogatories, or admissions that designate specific facts indicating there is a genuine issue for trial. Id. at 324. If the evidence offered by the non-moving party is merely colorable, or is not significantly probative, the Court may grant summary judgment. Anderson, 477 U.S. at 249-50. Similarly, summary judgment is mandated against a party who fails to prove an essential element of its case. Celotex, 477 U.S. at 322. B. Count I: Violation of the Overtime Provisions of the FLSA “Generally, employers are required to pay employees overtime for hours worked in excess of forty hours per week.” Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.2001). The FLSA provides, in pertinent part: Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1). It is undisputed that Plaintiff was never paid overtime compensation for any work done while at MCC. Defendants assert, however, that an exemption from the overtime requirements is applicable in this action. Congress, in enacting the FLSA, exempted many types of employers and employees from its overtime provisions. See 29 U.S.C. § 213. The determination of whether a FLSA exemption applies is ultimately a legal question, and can be determined on summary judgment. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 713-14, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986). One of these exemptions is that there is no overtime requirement for a “mechanic primarily engaged in selling or servicing WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 431 of 520 PageID 1067 Paneto v. Motor Car Concepts II, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 328730, 12 Wage & Hour Cas.2d (BNA) 565 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 automobiles ... if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles ... to ultimate purchasers.” 29 U.S.C. § 213(b) (10)(A). The requirements of this exemption are more explicitly stated in the Code of Federal Regulations: *3 A specific exemption from only the overtime pay provisions of section 7 of [the FLSA] is provided ... for certain employees of nonmanufacturing establishments engaged in the business of selling automobiles, trucks, trailers, farm implements or aircraft. Section 13(b)(10) states that the provisions of section 7 shall not apply with respect to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchasers.” This exemption will apply irrespective of the annual dollar volume of sales of the establishment or of the enterprise of which it is a part. 29 C.F.R. § 779.372(a). Therefore, there are two requirements that need to be met in order for Defendants to fall under this FLSA exemption: 1) Plaintiff must be a “mechanic”: and 2) the business run by MCC and Defendants must be a “nonmanufacturing establishment[ ] engaged in the business of selling automobiles.” 1. Plaintiff is a “Mechanic” Under the FLSA A “mechanic” is defined as any employee primarily engaged in doing mechanical work (such as get ready mechanics, automotive, truck, farm implement, or aircraft mechanics, used car reconditioning mechanics, and wrecker mechanics) in the servicing of an automobile, trailer, truck, farm implement, or aircraft for its use and operation as such. This includes mechanical work required for safe operation, as a vehicle, farm implement, or aircraft. 29 C.F.R. § 779.372(c)(3). Based on the documents before this Court, it is clear that Plaintiff was a “mechanic” when he worked for MCC. Plaintiff's job duties comport with that of a mechanic. (See Doc. 17 at 4.) Plaintiff's Complaint identifies his job title as mechanic. (Doc. 1 ¶ 4.) Finally, Plaintiff confirmed his job title as mechanic in his Answers to the Court's Interrogatories. (See Doc. 12 at 3. Interrog. 4.) This record before the Court is without dispute, and it distinctly shows that Plaintiff is properly defined as a “mechanic” for purposes of the FLSA exemption. 2. Defendants and MCC Operate a “Nonmanufacturing Establishment[ ] Engaged in the Business of Selling Automobiles” “Automobile dealers' establishments” and “automobile repair shops” have both been specifically listed in the Code of Federal Regulations as “establishments whose sale or service may be recognized as retail,” and therefore fall under the heading of “exemptions for certain retail or service establishments making sales of goods and services ‘recognized as retail.” ’ 29 C.F.R. § 779.320. All records before the Court clearly show that MCC falls under this rubric. All descriptions given by Defendants label MCC as either an “automobile dealers' establishment” or an “automobile repair shop.” (See Doc. 17 at 4-5.) More importantly, Plaintiff himself classifies MCC as “a Florida corporation that operates a [sic] automobile service and repair business.” (Doc. 1 ¶ 5.) Defendants do not manufacture any products, automobiles or otherwise. Therefore, it is beyond question that Defendants fall under the definition of “nonmanufacturing establishment[ ] engaged in the business of selling automobiles” for the purposes of the FLSA exemption. 2 2 Defendants, in their Motion for Summary Judgment, outline a thorough explanation of why MCC and its affiliated service arm. Advance Auto Service, Inc., are one entity for the purpose of the FLSA exemption. (See Doc. 17 at 10-13.) However, because this argument was not put forth by Plaintiff, and because the exemption language in the FLSA is clear, the Court has no need to address it. *4 Defendants have met the requirements of the FLSA exemption regarding overtime, and rightly fall within its provisions. Summary judgment as to Count I is hereby granted. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 432 of 520 PageID 1068 Paneto v. Motor Car Concepts II, Inc., Not Reported in F.Supp.2d (2007) 2007 WL 328730, 12 Wage & Hour Cas.2d (BNA) 565 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 C. Count II: FLSA Collective Action The allegation in Count II of the Complaint rests entirely on the same supposition as Count I. Therefore, because this Court has established that Defendants meet the requirements of the FLSA exemption regarding overtime, summary judgment as to Count II is also granted. III. CONCLUSION For the foregoing reasons, it is ORDERED that Defendants' Motion for Summary Judgment is hereby GRANTED in full. The Motion to Strike (Doc. 23, filed December 15, 2006) filed by Defendants is hereby DENIED AS MOOT. The Clerk of the Court is ORDERED to enter judgment accordingly and close this case. DONE and ORDERED. All Citations Not Reported in F.Supp.2d, 2007 WL 328730, 12 Wage & Hour Cas.2d (BNA) 565 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 433 of 520 PageID 1069 Parrilla v. Allcom Const. & Installation Services, LLC, Not Reported in F.Supp.2d (2009) 2009 WL 2868432 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Battle v. DirecTV, L.L.C., N.D.Ala., September 14, 2017 2009 WL 2868432 Only the Westlaw citation is currently available. United States District Court, M.D. Florida, Orlando Division. Antonio PARRILLA, Plaintiff, v. ALLCOM CONSTRUCTION & INSTALLATION SERVICES, LLC, Defendant. No. 6:08–cv–1967–Orl–31GJK. | Aug. 31, 2009. Attorneys and Law Firms K. E. Pantas, Pantas Law Firm, PA, Orlando, FL, for Plaintiff. Mark O. Cooper, O'Neill, Liebman & Cooper, PA, Orlando , FL, for Defendant. MEMORANDUM OPINION AND ORDER GREGORY A. PRESNELL, District Judge. *1 This matter came before the Court after a one-day bench trial on the issue of whether Plaintiff, Antonio Parrilla (“Plaintiff”), was an independent contractor, and thus exempt from the overtime compensation requirements of the Fair Labor Standards Act (the “FLSA”). 1 1 See generally 29 U.S.C. §§ 201 to 209. I. Overview Plaintiff brought suit on November 20, 2008, alleging, inter alia, that Defendant, Allcom Construction & Installation Services, LLC (“Defendant”), routinely failed to pay Plaintiff and other similarly situated individuals overtime pay in accordance with 29 U.S.C. §§ 207 and 215 (Doc. 1). Specifically, Plaintiff alleged that he and other employees routinely worked in excess of forty (40) hours per week but were compensated at a rate that was less than one and one-half times their regular rate of pay (Doc. 1, ¶ 10). Defendant filed its Motion for Summary Judgment on June 1, 2009, contending that Plaintiff was an independent contractor in business for himself and thus exempt from the overtime pay requirements of the FLSA (Doc. 20). On June 17, 2009, the Court denied Defendant's Motion for Summary Judgment and entered its Order setting the employee/independent contractor issue for trial (Doc. 28). The parties waived their right to a jury trial 2 (Docs. 28 at 2 and Doc. 35) and the Court held a bench trial on July 23, 2009 (Doc. 56). Pursuant to FED. R. CIV. P. 52(a), the Court makes findings of fact and conclusions of law as set forth, infra. 2 It is not clear, however, that either party had a right to a jury trial on this issue as the determination of employment status under the FLSA is a question of law. See, e.g., Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. II. Background Plaintiff worked for Defendant as a cable television, high- speed Internet, and Internet phone service 3 installation technician from approximately September 2006 through January 2008. Plaintiff was paid by the “piece” 4 for the work that he performed. 3 Unless otherwise stated, cable television, high-speed Internet, and Internet phone service are referred to collectively herein simply as “cable” or “cable services.” 4 When a company pays by the piece, it pays a fixed, pre-determined amount for the type of job performed (e.g., $75.00 to install a cable modem, $25.00 to install a set-top converter box, etc.)—not for the amount of time it takes to complete the job. Defendant acts as one of Bright House Networks' (“Bright House”) 5 installation providers in the northern part of the greater metropolitan area of Orlando, Florida. Specifically, Defendant is responsible for installing Bright House customers' cable services in an area stretching from Oviedo, Florida to Apoka, Florida. Defendant's WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 434 of 520 PageID 1070 Parrilla v. Allcom Const. & Installation Services, LLC, Not Reported in F.Supp.2d (2009) 2009 WL 2868432 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 overwhelming source of business consists of the cable installation work that it obtains from Bright House. Each day, Bright House sends the work orders that it receives from its customers to Defendant. Defendant, in turn, assigns these daily work orders to its installation technicians—the individuals, such as Plaintiff, who actually perform the installation work. 5 Bright House is not a party to the instant litigation. Before it will start assigning work orders to a technician, Defendant requires the technician to enter into an “Independent Contractor Agreement.” 6 Pursuant to that agreement, the technician agrees to, inter alia, furnish all tools and equipment required to do the installation work; maintain his own general liability insurance; obtain or waive workers' compensation insurance, secure an occupational license; and indemnify Defendant from any losses arising out of the technician's work (Doc. 19–2 at 2–4). In addition to the “Independent Contractor Agreement,” Defendant also requires each of its technicians to form their own company. 7 6 See, e.g., Doc. 19–2. 7 Rather than pay its technicians directly, Defendant pays its technicians' companies. *2 For unknown reasons, Plaintiff and Defendant never executed Defendant's “Independent Contractor Agreement.” 8 However, Defendant paid Plaintiff's company, Computer Solutions and Consulting, Inc. (which Plaintiff had formed prior to working for Defendant), for the installation work that Plaintiff performed. 9 8 Although Defendant introduced a copy of the “Independent Contractor Agreement” that had been prepared by or for Plaintiff (see Doc. 59– 18), Defendant's owner, John Muller, testified that the agreement was never signed. No explanation, however, was ever given as to why the agreement was never signed. 9 When Plaintiff first started working for Defendant, Defendant initially made some payments directly to Plaintiff. However, the lion's share of payments were made to Defendant's company. Defendant terminated its relationship with Plaintiff on January 18, 2008 because Plaintiff had allegedly billed for work that he did not actually perform (Doc. 59–16). III. Standard of Review In determining whether an individual is an employee or independent contractor, the United States Supreme Court has explained that lower courts must consider the “economic realities” of the parties' relationship—not the labels or formalities by which the parties characterize their relationship. See generally Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); see also Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947). The Eleventh Circuit has noted that the following factors guide this inquiry: (1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; and (6) the extent to which the service rendered is an integral part of the alleged employer's business. Freund v. Hi–Tech Satellite, Inc., 185 F. App'x 782, 783 (11th Cir.2006) (unpublished) 10 [hereinafter “Freund”] (quoting Sec'y of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir.1987)); see also 29 C.F.R. § 500.20(h)(4). 10 Pursuant to 11th Cir. R. 36–2, “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” None of the foregoing factors are dispositive, however. Instead, courts must consider the totality of the circumstances. Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir.1976) (“No one of these considerations can become the final determinant, nor can the collective answers to all the of the inquires produce a resolution WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 435 of 520 PageID 1071 Parrilla v. Allcom Const. & Installation Services, LLC, Not Reported in F.Supp.2d (2009) 2009 WL 2868432 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 which submerges consideration of the dominant factor— economic dependence”). IV. Findings of Fact and Conclusions of Law A. Nature and Degree of Control Exerted by Defendant Over Plaintiff The testimony and record evidence in this case establishes that Defendant exerted significant control over Plaintiff. Specifically, Defendant controlled Plaintiff's daily work schedule, the type of work Plaintiff performed, the amount of time Plaintiff could take off from work, and the manner in which Plaintiff carried out his work. 11 11 Defendant also required Plaintiff to wear a shirt and badge with Defendant's and Bright House's logos and required him to affix a magnetic sign with similar logos on his vehicle. Unlike the other limitations and controls that Defendant exerted over Plaintiff, these requirements are not significant and appear to be common in the industry. Defendant determined Plaintiff's daily work schedule, the resulting number of hours that Plaintiff worked, and the type of jobs that Plaintiff performed. Defendant required Plaintiff to arrive at its place of work at approximately 7:30 a.m. each day; Defendant would then hand Plaintiff a list of work orders to perform for the day. Plaintiff had no control over the work orders that he received, the types of jobs that he could perform or the order in which he carried out the work orders. Plaintiff could not, for instance, perform work orders relating only to Internet service. He had to carry out the work orders that Defendant gave him and in the order that Defendant specified. Furthermore, if a customer requested additional work, or work that differed from what was printed on an existing work order, Plaintiff could not accept the new work unless Bright House and Defendant's supervisors first approved the new work and Plaintiff received a new work order. Finally, Defendant did not permit Plaintiff to perform cable installation work for any other cable installation provider. *3 Plaintiff also had little control over when to perform the work orders or the order in which he choose to carry out the work orders. When Bright House customers schedule an appointment with a technician, they are given a two-hour window in which they must wait for the technician to arrive and start performing the work. To ensure that its technicians would be able to meet these windows, Defendant assigned its work orders based largely on geographical proximity. Plaintiff had no control over this assignment process and was required to meet Bright House customers' time windows. He could not re-schedule customer appointments. Furthermore, Defendant would sometimes instruct Plaintiff to leave a particular job (even if the job were not complete) and go to another job; Plaintiff did not have any meaningful discretion to refuse those instructions. Defendant also controlled the amount of time, and the manner in which, Plaintiff could take time off. While there was conflicting evidence on this issue, the Court finds that the more credible evidence revealed that Defendant would penalize, or at least threatened to penalize, technicians who frequently requested time off, failed to show up each morning at Defendant's office, or failed to attend Defendant's mandatory weekly meetings. Although Defendant appears to have made some allowances for doctors' appointments, family emergencies and vacations that were planned in advance, it would penalize or terminate technicians who simply decided that, for whatever reason, they did not want to work on a particular day. Indeed, Defendant's manager testified that its technicians needed to “request” time off. Defendant also supervised, to a significant extent, the manner in which Plaintiff carried out his work. Defendant provided Plaintiff with specifications (that came mostly from Bright House) on how his work was to be performed. If Bright House informed Defendant that it was not satisfied with the manner in which Plaintiff performed an installation, Defendant would assess Plaintiff with fixed monetary penalties (or “charge-backs”) based on the type of job performed (e.g., the penalty for an unsatisfactory modem installation might be $50, while the penalty on an unsatisfactory television installation might be $25). Defendant automatically deducted these charge-backs from the weekly payments it made to Plaintiff's company. In some instances, these penalties actually exceeded the total amount Plaintiff was supposed to be paid on a job. Plaintiff had no way of disputing or negotiating the amount of a particular charge-back. Finally, Defendant and Bright House sometimes sent supervisors to “spot- check” or monitor Plaintiff and other technicians after they completed a job or even during a job. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 436 of 520 PageID 1072 Parrilla v. Allcom Const. & Installation Services, LLC, Not Reported in F.Supp.2d (2009) 2009 WL 2868432 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 B. Plaintiff's Opportunity for Profit or Loss Depending on His Managerial Skill The testimony and record evidence in this case establishes that Plaintiff's opportunity for profit or loss did not depend upon his managerial skill. Instead, Plaintiff's compensation was based simply on the number and type of jobs that Defendant gave him and the quality and pace of Plaintiff's work. *4 Because Plaintiff was paid on a piece work basis, Plaintiff's opportunity for profit or loss was, in a simplistic sense, a function of the number of jobs he could complete in a finite time frame. Excluding charge-backs, the more jobs Plaintiff could quickly complete, the more Plaintiff stood to profit. 12 12 This would also be true for an employee who was paid on a piece work basis. As noted, supra, however, Plaintiff's profit was also a function of the type of work orders that Defendant assigned him (and the amount of charge-backs Plaintiff received). Because the types of jobs that Plaintiff performed each paid differently, notwithstanding the amount of time it took to complete those jobs, Plaintiff would experience days that were more profitable than others simply as a result of the type of work orders that Defendant assigned to him. For example, assuming cable modem installations paid more than television installations, if all the work orders Plaintiff received on a given day were for cable modem installations, Plaintiff would make more on that day, ceteris paribus, than if he had been assigned all television installations. Of course, if cable modem installations took twice as long as television installations, it might be the case that Plaintiff could earn the same amount (or more) by just doing television installations throughout the day. Importantly, though, Plaintiff had no control over the types of work orders that he was given and, in at least some instances, Defendant instructed him to leave particular jobs to perform other potentially less profitable jobs. Furthermore, Plaintiff was not permitted to install cable services for other cable installation companies. Nor was he permitted to provide additional services for Bright House customers without first obtaining a new work order authorized by both Bright House and Defendant. No matter how quickly or efficiently Plaintiff worked, Defendant's charge-backs, the manner in which it assigned jobs, and the directives it gave to sometimes leave jobs prior to their completion obviated Plaintiff's ability to rely upon his own managerial skill. C. Plaintiff's Investment in Equipment or His Employment of Others The testimony and record evidence in this case establishes that Plaintiff did not make any significant investment in capital or employ others. Although Plaintiff provided most of the equipment necessary for performing installations on behalf of Defendant, Plaintiff's relative investment in that equipment was small. In total, the cost of the hand tools, cable fishing stick, crimper, hammer drill, cable meter, and ladder that Defendant required Plaintiff to purchase amounted to perhaps no more than $1,000 (the cable meter and hammer drill, for instance, cost $500 and $150, respectively). Bright House provided the actual cable, cable modems, digital video recorders and other material inputs required for the installations. While Plaintiff used his own vehicle (a mini-van) to drive to customer's houses, that vehicle was also for personal use. *5 Defendant ostensibly gave Plaintiff the option to hire others through his own company. But that option was illusory. With the exception of just one husband and wife team, none of Defendant's technicians, including Plaintiff, ever utilized or substituted others to carry out the work orders that Defendant assigned. D. Special Skills Required for Plaintiff's Services The testimony and record evidence in this case establishes that Plaintiff's work did not require the application of particularly special, or difficult to acquire, skills. Although Plaintiff's work involved proper cable wiring, connecting and configuring Internet cable modems, the use of a cable meter, and answering customer's questions, Defendant's manager testified that those skills could be acquired in as little as two weeks of on-the-job training. In fact, Defendant often assigned experienced technicians to work with new technicians for a one or two week period in order to get new technicians up to speed. After this short training period, Defendant would start sending the new technicians out into the field. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 437 of 520 PageID 1073 Parrilla v. Allcom Const. & Installation Services, LLC, Not Reported in F.Supp.2d (2009) 2009 WL 2868432 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 E. The Degree of Permanence and Duration of Plaintiff's Working Relationship With Defendant The testimony and record evidence in this case establishes that there was a high degree of permanence in Plaintiff's relationship with Defendant. As noted, supra, Plaintiff was not permitted to provide cable installation services for any other cable installation company while we worked for Defendant. Plaintiff was expected to show up at Defendant's office each morning, six days a week, and was given work orders that typically amounted to a full day's worth of work. This relationship continued for nearly one and a half years. F. The Extent to Which Plaintiff's Work Was Integral to Defendant The testimony and record evidence in this case establishes that Plaintiff's work was clearly integral to Defendant's business. In the absence of Plaintiff's work, and the work of Defendant's other installation technicians, Defendant would not succeed as an ongoing enterprise. Defendant conceded as much in its trial brief (Doc. 52 at 5) and later at trial. V. Conclusion Based on the totality of the circumstances, it is clear that Plaintiff was an employee—and not an exempt independent contractor—for purposes of the FLSA. Taken together, all six of the factors comprising the “economic reality” test overwhelmingly support the conclusion that Plaintiff was an employee who was economically dependent on Defendant. Notwithstanding the foregoing, Defendant argued at trial that its “Independent Contractor Agreement” and its requirement that technicians form their own companies evidenced an intent to form an independent contractor relationship. This legal indicia, however, is of no moment and belies the economic reality of the parties' relationship. If anything, the fact that Defendant required its technicians to form their own companies only suggests that Defendant deliberately created a facade to mask the true nature of the parties' relationship. If Defendant's technicians were truly independent contractors, it would make no difference whether Defendant paid its technicians directly or paid their companies (which are presumably ‘subchapter S' corporations that merely pass income through to the technicians). *6 Finally, Defendant argues that the Freund case should be controlling because its facts are “virtually identical” to the facts of this case (Doc. 52 at 5). Freund' s facts, however, bear little resemblance to this Court's findings. In Freund, the District Court found, inter alia, that the plaintiff, a home satellite and entertainment systems installer, “solely determined the hours he spent at work;” was “at liberty to re-schedule any of his appointments with customers;” was “free to schedule as many work days and off-days as he desired;” was “free to perform installations for other companies;” and was not subject to charge-backs or other significant limitations in terms of how he actually carried out his work. See Case No. 9:04– CV–80117–DTKH (S.D. Fla. June 10, 2005) (Doc. 41 at 2–3). Plaintiff clearly had none of these freedoms. In sum, the “economic reality” of the parties' relationship makes clear that Plaintiff was Defendant's employee —not an independent contractor. Although Defendant may have intended to create an independent contractor relationship through its “Independent Contractor Agreement” and other requirements, Plaintiff was an independent contractor in name only. In reality, Defendant treated Plaintiff as an employee and exerted significant control over the type of work he could perform, when he worked, how he worked, for whom he worked, and how much he could earn. IV. Conclusion For the foregoing reasons, the Court concludes that Plaintiff was Defendant's employee and may, therefore, be entitled to overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. DONE and ORDERED. All Citations Not Reported in F.Supp.2d, 2009 WL 2868432 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 438 of 520 PageID 1074 Quarles v. Hamler, 652 Fed.Appx. 792 (2016) 26 Wage & Hour Cas.2d (BNA) 935 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Dimingo v. Midnight Xpress, Inc., S.D.Fla., July 2, 2018 652 Fed.Appx. 792 This case was not selected for publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S. Ct. of App. 11th Cir. Rule 36-2. United States Court of Appeals, Eleventh Circuit. Everitte QUARLES, Petitioner–Appellee, v. Garrett HAMLER, Defendant–Appellant. No. 15–13824 | Non–Argument Calendar | Date Filed: 06/10/2016 Synopsis Background: Personal security guard brought action against his former employer to recover overtime pay under the Fair Labor Standards Act (FLSA). The United States District Court for the Northern District of Georgia, No. 1:10–cv–01787–LMM, Leigh Martin May, J., ruled that guard was employee, entered judgment on jury verdict in guard's favor, 2015 WL 11123310, and awarded liquidated damages and attorney fees. Employer appealed. Holdings: The Court of Appeals held that: [1] employer's challenges to two of district court's orders were not preserved for appellate review; [2] there was sufficient evidence to support district court's determination that guard was “employee” for FLSA purposes; and [3] district court did not abuse its discretion in awarding liquidated damages. Affirmed. West Headnotes (3) [1] Federal Courts Requisites and sufficiency; defects Employer's challenges to district court orders ruling that personal security guard was his “employee” for FLSA purposes and awarding attorney fees were not preserved for appellate review, where employer's sole notice of appeal did not reference claims, and overriding intent to appeal orders was not readily apparent on face of notice. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. Cases that cite this headnote [2] Labor and Employment Persons in particular employments There was sufficient evidence to support district court's determination that personal security guard was “employee” for FLSA purposes, in light of evidence that guard did not work for anyone else during entire five years that he worked for employer, employer expected guard to guard him at all times that he was working or traveling, and employer told guard he could not work for anyone else. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 1 Cases that cite this headnote [3] Labor and Employment Good faith; reasonable grounds District court did not abuse its discretion in determining that employer did not act in good faith in failing to pay overtime wages to personal security guard, warranting award of liquidated damages in guard's FLSA action, even though jury found that employer did not willfully or recklessly violate FLSA, where court's decision about good faith was largely based on its finding that employer's testimony regarding his reliance on his accountants' advice was not credible. Portal-to-Portal Act of 1947 § 11, 29 U.S.C.A. § 260. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 439 of 520 PageID 1075 Quarles v. Hamler, 652 Fed.Appx. 792 (2016) 26 Wage & Hour Cas.2d (BNA) 935 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Cases that cite this headnote Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:10–cv– 01787–LMM Attorneys and Law Firms Stephen Michael Katz, The Katz Law Group, Marietta, GA, for Plaintiff–Appellee, *793 Frederick C. Dawkins, Frederick C. Dawkins, Esq., PC, Atlanta, GA, for Defendant–Appellant. Before HULL, MARCUS, and MARTIN, Circuit Judges. Opinion PER CURIAM: This appeal concerns a lawsuit brought by Everitte Quarles against Garrett Hamler, a musician and music producer. For five years Hamler employed Quarles as a personal security guard. In 2010 Quarles sued Hamler for overtime pay under the Fair Labor Standards Act (FLSA). A jury awarded Quarles $65,497.50, and the district court also awarded the same amount in liquated damages, along with attorney's fees. Hamler raises three claims on appeal. First, he says Quarles was not his employee for FLSA purposes. Second, he says he shouldn't owe liquidated damages. Third, he says the district court awarded excessive attorney's fees. Hamler did not properly designate his first and third claims for appeal, so we lack jurisdiction over them. His second claim is without merit, so we reject it. I. Each of Hamler’s three claims relates to a separate order issued by the district court. The first claim arises from the district court’s May 12, 2015, order, which found that Quarles was Hamler’s employee for FLSA purposes. This order followed a one-day bench trial on this question and stated that “[t]he case will now proceed to a jury trial for determination of the remaining issues.” After a jury trial took place, the court awarded Hamler liquidated damages in an order dated July 23, 2015. These damages are the subject of Hamler’s second claim. At the time the court issued its July order, Quarles still had a motion for attorney’s fees pending. The July order closed the case, while noting that “[t]he case does not have to be formally open for the Court to rule on the remaining issues as to costs and attorney’s fees.” Within a month of the July order, Hamler filed a notice of appeal which said he was “appealing to the Eleventh Circuit Court of Appeals from this Court’s July 24, 2015 Order awarding Plaintiff liquidated damages in the amount of $65,497.50.” Then, on September 25, 2015, a month after that notice of appeal, the district court granted Quarles’s motion for attorney’s fees. Hamler filed no notice of appeal regarding the September attorney’s fees order. This September order is the subject of Hamler’s third claim. [1] Quarles says we lack subject matter jurisdiction over Hamler’s first and third claims (about his FLSA status and the attorney’s fees) because they were not referenced in the single notice of appeal that Hamler filed. Quarles is right. The Supreme Court has “ma[d]e clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007). And though “we generally construe a notice of appeal liberally, we will not expand it to include judgments and orders not specified unless the overriding intent to appeal these orders is readily apparent on the face of the notice.” Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). Here, no such “overriding intent” was apparent in Hamler’s notice of appeal. To the contrary, the notice of appeal referenced the ruling on liquidated damages by date and described what the ruling did. The notice of appeal did not mention or even allude to any other order, judgment, or issue. “[W]here some portions of a judgment and some orders are expressly made a part of the appeal, we must infer that the *794 appellant did not intend to appeal other unmentioned orders or judgments.” Id. at 1529. Hamler expressly made the district court’s order awarding liquidated damages “a part of the appeal” and never referenced the court’s prior order regarding Hamler’s FLSA status. And the district court had not even ruled on attorney’s fees at the time Hamler filed his one notice of appeal. See United States v. Garrison, 963 F.2d 1462, 1463 (11th Cir. 1992) (“[T]he filing of a premature notice of appeal is as ‘if no notice of appeal is filed at all.’ Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 440 of 520 PageID 1076 Quarles v. Hamler, 652 Fed.Appx. 792 (2016) 26 Wage & Hour Cas.2d (BNA) 935 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 ”) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982)). [2] Even assuming though that the notice of appeal was sufficient and that we have jurisdiction over these two claims, the district court is due to be affirmed. For the claim about FLSA status, the district court was presented with facts sufficient to find that Quarles was Hamler’s employee. “[T]he overarching focus of the inquiry” into whether a plaintiff was the defendant’s employee rather than an independent contractor “is economic dependence.” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1312 (11th Cir. 2013). “[I]n considering economic dependence, the court focuses on whether an individual is in business for himself or is dependent upon finding employment in the business of others.” Id. (quotation omitted). Quarles presented plenty of evidence on this score. Quarles showed that he did not work for anyone else during the entire five years that he worked for Hamler. Indeed Hamler expected Quarles to guard him at all times that Hamler was working or traveling, and the district court found that Hamler told Quarles he could not work for anyone else. These findings amply support the district court’s finding that Quarles was Hamler’s employee. As for the attorney's fees, “[p]revailing plaintiffs are automatically entitled to attorneys' fees and costs under the FLSA.” Dale v. Comcast Corp., 498 F.3d 1216, 1223 n. 12 (11th Cir. 2007). Hamler claims the district court awarded excessive attorney's fees, but provides no legal or evidentiary support for why this is so. The district court's 17–page order on attorney's fees thoroughly analyzed Quarles's motion and reasonably reduced Quarles's request by 30 percent. Even assuming our jurisdiction over this claim, we see no basis for holding that the district court abused its discretion. See Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1543 (11th Cir. 1985) (“The determination of a reasonable fee pursuant to section 216(b) of the Fair Labor Standards Act is left to the sound discretion of the trial judge and will not be set aside absent a clear abuse of discretion.”). II. This leaves the one claim designated by Hamler in his notice of appeal: whether he should owe liquidated damages. For a claim like this, we review findings of fact for clear error and legal conclusions de novo. Dybach v. Fla. Dep't of Corr., 942 F.2d 1562, 1566 (11th Cir. 1991). “Under the FLSA a district court generally must award a plaintiff liquidated damages that are equal in amount to actual damages.” Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1272 (11th Cir. 2008). However, a district court “may, in its sound discretion, award no liquidated damages” “if the employer shows to the satisfaction of the court that the act or omission giving rise to [the FLSA] action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of [FLSA].” 29 U.S.C. § 260. The employer bears the burden of proof on this issue. Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir. 1987). *795 [3] The district court had an ample basis to find that Hamler did not act in good faith. The court's decision about good faith was largely based on its finding that the “testimony regarding [Hamler's] reliance on his accountants' advice” was not credible. And Hamler's argument on appeal also turns primarily on the court's “fail[ure] to consider” the testimony on this issue as well. But “[i]t is the exclusive province of the judge in non- jury trials to assess the credibility of witnesses and to assign weight to their testimony.” Hearn v. McKay, 603 F.3d 897, 904 (11th Cir. 2010) (per curiam) (quotation omitted). For this reason “[w]e accord great deference to the district court's credibility determinations.” United States v. Clay, 376 F.3d 1296, 1302 (11th Cir. 2004) (quotation omitted). The court heard testimony from Hamler and his accountant and decided that Hamler did “not demonstrate[ ] that he objectively acted in good faith.” We see no basis to override the court's credibility determination. Also, though the jury found that Hamler did not willfully or recklessly violate FLSA, we have held that this finding doesn't preclude liquidated damages. This is because the burden for proving willfulness is with the employee, but the burden for proving good faith is with the employer. See Rodriguez, 518 F.3d at 1274. The district court had an ample basis to find that Hamler did not meet his burden as the employer. In any event, 29 U.S.C. § 260 merely provides that a district court “may, in its sound discretion, award no liquidated damages” “if the employer shows to the satisfaction of the court” that he acted in good faith. So, even if Hamler had proved he acted in good faith, the court still would have been within its discretion to award liquidated damages. Hamler has not proven that Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 441 of 520 PageID 1077 Quarles v. Hamler, 652 Fed.Appx. 792 (2016) 26 Wage & Hour Cas.2d (BNA) 935 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 the district court abused its discretion when it chose to award liquidated damages here. AFFIRMED. All Citations 652 Fed.Appx. 792, 26 Wage & Hour Cas.2d (BNA) 935 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 442 of 520 PageID 1078 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Battle v. DirecTV, L.L.C., N.D.Ala., September 14, 2017 218 F.Supp.3d 965 United States District Court, E.D. Arkansas, Western Division. Boris ROSLOV, et al., Plaintiffs v. DIRECTV INC., et al., Defendants CASE NO. 4:14–CV–00616 BSM | Signed November 4, 2016 Synopsis Background: Technicians who installed satellite television equipment brought action against satellite television company, alleging that company failed to compensate them for their services and failed to pay overtime as required by the Fair Labor Standards Act (FLSA). Company moved for summary judgment. Holdings: The District Court, Brian S. MIller, J., held that: [1] company was not a joint employer with servicer provider that employed first technician; [2] first technician was an independent contractor, rather than an employee; [3] company was not a joint employer with servicer provider that employed second technician; and [4] second technician was an independent contractor, rather than an employee. Motion granted. West Headnotes (10) [1] Labor and Employment Employment relationship Whether a company is the plaintiffs' “employer,” within meaning of FLSA, relies on the “economic realities” of the relationship and is a question of law. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. Cases that cite this headnote [2] Labor and Employment Joint or multiple employers Labor and Employment Independent Contractors Courts analyze the economic reality of relationship between a putative employer and employee, for purposes of a FLSA claim, in two different contexts: (1) if there are multiple hiring entities, whether the defendant can be considered a joint employer, or (2) if a plaintiff has been classified as an independent contractor, whether the defendant should have classified the plaintiff as an employee. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. 2 Cases that cite this headnote [3] Labor and Employment Joint or multiple employers When a plaintiff alleges multiple companies are joint employers for purposes of an FLSA claim, courts consider whether the alleged defendant-employer: (1) possessed the power to hire and fire the plaintiff; (2) supervised or controlled plaintiffs' work schedules or conditions of employment; (3) determined the rate or method of payment; and (4) maintained employee records. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. 2 Cases that cite this headnote [4] Labor and Employment Independent Contractors Whether a plaintiff was actually a company's “employee” rather than an independent contractor, for purposes of an FLSA claim, courts consider factors including: (1) extent Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 443 of 520 PageID 1079 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 of defendant's control over plaintiffs; (2) plaintiffs' investment in their own business; (3) extent of whether plaintiffs' profit or loss was determined by defendant; (4) the skill and initiative in performing the job; (5) the permanency of the relationship; and (6) the extent to which the work was integral to defendant's operations. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. Cases that cite this headnote [5] Labor and Employment Independent Contractors Worker's subjective opinion that he is businessman or independent contractor rather than “employee” does not change his employment status for FLSA purposes. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. Cases that cite this headnote [6] Labor and Employment Joint or multiple employers Satellite television company that contracted with servicer provider was not a “joint employer” of provider's technician, and thus was not liable for alleged failure to pay overtime compensation in violation of FLSA, where company had only a limited role in hiring technician that was limited to quality control, company had no effective control of terms and conditions of technician's employment, company had no involvement in technician's compensation, and any records maintained by company on technicians in general was nothing more than quality control information. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. 3 Cases that cite this headnote [7] Labor and Employment Persons in particular employments Service technician was an “independent contractor,” rather than employee, of satellite television company, and thus could not maintain FLSA overtime compensation claim against company, where technician operated as a separate economic entity, given that he independently decided not to take assigned orders or to take additional orders at the end of the day, which determined how much he earned as he was paid by type of order and only if that order was properly closed, technician purchased his own equipment, tools, supplies, fuel, and insurance, specialized skill and training was required to perform the job, and permanence of relationship with company was lacking. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. Cases that cite this headnote [8] Labor and Employment Joint or multiple employers Satellite television company that contracted with servicer provider was not a “joint employer” of provider's technician, and thus was not liable for alleged failure to pay overtime compensation in violation of FLSA, where company had little role in hiring technician, training was conducted by service provider, company had no supervision or control over technician, as he had flexibility throughout his day and could decide what he would work on or how he would work, it was service provider that controlled technician's pay, and company did not maintain any employment records for technician other than onside status data. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. 3 Cases that cite this headnote [9] Labor and Employment Persons in particular employments Service technician was an “independent contractor,” rather than employee, of satellite television company, and thus could not maintain FLSA overtime compensation claim against company, where technician operated as a separate economic entity, given that company did not exert such significant control so that technician was no longer a separate Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 444 of 520 PageID 1080 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 economic entity, since technician was free to set his own schedule and take vacations when he wished, technician was free to engage in outside work, he invested in his own business and had personal control over profit and loss, specialized skills were required to properly align and install satellite systems, and permanence of the relationship was lacking. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. 1 Cases that cite this headnote [10] Labor and Employment Independent Contractors The more permanent the relationship, the more likely a worker is to be an employee, rather than an independent contractor, under FLSA. Fair Labor Standards Act of 1938 § 1, 29 U.S.C.A. § 201 et seq. 1 Cases that cite this headnote Attorneys and Law Firms *967 Bradford B. Lear, Todd C. Werts, Lear Werts LLP, Columbia, MO, George A. Hanson, Crystal R. Cook, Stueve Siegel Hanson LLP, Kansas City, MO, Ryan D. O'Dell, Stueve Siegel Hanson LLP, San Diego, CA, for Plaintiffs. James J. Oh, Littler Mendelson, P.C., Chicago, IL, Jennifer Chierek Znosko, Patricia J. Martin, Littler Mendelson, P.C., St. Louis, MO, Jay A. Ebelhar, Baker, Donelson, Bearman, Caldwell & Berkowitz, Memphis, TN, for Defendants. ORDER Brian S. Miller, UNITED STATES DISTRICT JUDGE **1 Defendants' motion for summary judgment [Doc. No. 59] against Boris Roslov is granted, and plaintiff Reginald Degraftenreed's claim is dismissed sua sponte. The remaining motions are denied as moot. I. BACKGROUND Defendants DirecTV, Inc. and DirecTV, LLC (collectively “DirecTV”) sell and provide digital television and audio programming *968 to consumers via satellite. Pls.'s Resp. Defs.'s Statement Facts Supp. Mot. Degraftenreed (“Degraftenreed Facts”) ¶ 1, Doc. No. 81. Plaintiffs Boris Roslov and Reginald Degraftenreed were technicians tasked with installing the DirecTV satellite systems at customer homes and businesses. Roslov and Degraftenreed allege that DirecTV failed to compensate them for their services and failed to pay overtime as required by the Fair Labor Standards Act (“FLSA”). A. Service Provider Network When a customer orders DirecTV service, equipment must be installed at the customer's location. To perform some installations, DirecTV contracted with outside companies, referred to as “Service Providers.” These Service Providers, in turn, entered into contracts with technicians to perform the installation and service. The relationship between DirecTV and the Service Providers was governed by a service provider agreement. See, e.g., Doc. No. 84 (agreement filed under seal). The agreement explains that the Service Provider is in the business of installing and maintaining satellite systems, and in exchange for compensation, was responsible for satisfying DirecTV's work orders. The agreement authorizes Service Providers to hire their own employees or independent contractors, and it established standards that Service Provider personnel must follow while fulfilling DirecTV's work orders. Id. at 25–27; see also Reed Dep. 41:18–42:14, Doc. No. 84 (explaining guidelines); Doc. No. 103 (installation guidelines). To enforce these standards, DirecTV had quality assurance technicians check the Service Providers' work. Reed Dep. 43:1–45:1. B. Technicians If Service Providers hired technicians to complete DirecTV's work orders, the service agreement established hiring and training requirements. See Doc. No. 84 at 25. For example, Service Providers could only hire technicians who successfully completed a DirecTV-approved training program and cleared a background check and drug screen through an approved vendor. Id.; Reed Dep. 57:6– Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 445 of 520 PageID 1081 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 57:23; Degraftenreed Dep. 108:16–108:6; Roslov Dep. 58:6–58:11. Service Providers had to, at their expense, provide technicians with identification cards, part of which identified the technician as an approved DirecTV installer. Doc. No. 84 at 26. The Service Provider was also required to supervise technicians in proper interactions with customers, uniform and grooming, and other activities. Id. at 27. After a Service Provider hired the technician, DirecTV issued the technician a unique identification number. As DirecTV received orders, it assigned work orders to Service Provider technicians using technician numbers. DirecTV emailed these initial assignments to the local Service Provider, who in turn either reassigned orders to different technicians and reported the change back to DirecTV, or forwarded the orders on to their technicians. Reed Dep. 34:21–35:21; Degraftenreed Dep. 38:16–38:22; Roslov. Dep. 103:25–106:9. **2 While at a customer's location, technicians were required to stay in contact with a DirecTV call center. Technicians would “status” themselves by notifying the call center as they arrived onsite, to activate receivers, or to report customer issues. Degraftenreed Dep. 42:18–42:21; Roslov. Dep. 117:15–118:10. After work was completed, technicians notified the call center that the order should be closed. See Degraftenreed Dep. 164:4–164:25. Technicians did not always status themselves accurately, however, either because of poor cellular reception, a mistake, or some other *969 reason. See, e.g., Roslov Dep. 168:2– 168:12. Degraftenreed and Roslov are two technicians engaged by Service Providers to complete DirecTV work orders. Degraftenreed was engaged by three Service Providers—Professional Satellite Services (“ProSat”), Wise Owl Communications (“Wise Owl”), and Wave Communications (“Wave”)—from early 2009 to July 2010. Roslov was engaged by another Service Provider— Elite Satellite Installations—from mid–2010 to October 2011. Degraftenreed and Roslov did not sue the Service Providers, but only DirecTV. C. Reginald Degraftenreed Degraftenreed learned of an opportunity to work with ProSat through a ProSat technician, Josiah Stricklin. Degraftenreed Dep. 102:5–19. Stricklin contacted Donny Gaskin, a ProSat supervisor, and Stricklin advised Degraftenreed to meet at a storage unit to speak with Gaskin the following morning. Id. at 102:19– 103:22. Degraftenreed met with Gaskin and signed an independent contractor agreement with ProSat. Id. at 60:14–60:25. Gaskin informed Degraftenreed of the background check and drug screen requirement, but Degraftenreed nonetheless began training that day. Aside from the certification program DirecTV required, Degraftenreed's training mainly consisted of on-the-job training with other ProSat technicians. See, e.g., id. 51:6– 61:15; 51:20–51:22. On occasion, Degraftenreed received emails about DirecTV services and attended monthly safety training at DirecTV's offices. Id. 132–133:24; Reed Dep. 61:2–61:22. When these DirecTV trainings occurred, Degraftenreed received notification by email from a ProSat supervisor. Degraftenreed Dep. 135:3–135:7. Although Degraftenreed installed DirecTV services, he owned all of his own equipment. He owned his own truck to travel between jobs, his own tools, cell phone to use while working, and his own computer. Id. 127:128:9, 191:4–196:4. Some of his tools were issued to Degraftenreed's own limited liability company, Degraftenreed Services. Id. 195:25–198:25. Indeed, Degraftenreed used his company's email address to correspond with ProSat while installing DirecTV systems. Although he testified that Degraftenreed Services was not in operation at the time, he still filed a Schedule C with his tax return and took deductions for the expenses incurred while installing DirecTV systems. Id. 204:6– 205:12. Degraftenreed's workdays lasted from approximately 6:00am to 7:00pm, though there was variation in the total number of hours he worked each day, including days when he would have no time at all. This time varied for several reasons. For example, he could ask for additional work orders, id. 137:6–137:25, or fail to close work orders or turn off his cell phone to avoid receiving assignments, id. 156:2–156:6; 164:11–164:25. There were occasions when technicians would not receive work orders, yet ProSat would still have them report to work in case work was found, and Degraftenreed had opportunities to tag-team with other technicians, even though that was against policy. Id. 157:11–157:23, 249:9–251:13. Finally, Degraftenreed took days off even if he was told not to. Id. 181:20–182:13. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 446 of 520 PageID 1082 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 **3 Degraftenreed was not paid hourly, but instead paid by the type of order and only if that order was properly “closed.” Degraftenreed Facts ¶¶ 14, 23. For example, he received set pay for a basic installation of a satellite dish and one receiver, but he could receive greater pay for installing additional receivers. Degraftenreed Dep. 54:14– 54:21. Since Degraftenreed's pay was not hourly, he was compensated *970 whether the job took him one hour or three hours. Id. 152:8–152:12. Over time, of course, the time spent on these tasks changed as Degraftenreed's skill and experience improved. Although Degraftenreed documented the hours he actually worked in a notebook, that notebook was destroyed in an automobile accident in June 2009. Degraftenreed Facts ¶ 27. He admits, however, that he never reported his hours to anyone and never submitted time sheets to DirecTV. Id. ¶¶ 25–26. He did, however, state to a DirecTV field supervisor that he was not receiving overtime pay, which on at least one occasion, he defined overtime as working on Saturdays. See Degraftenreed Dep. 116:18–117:20; 118:4–118:16; but see id. 164:11–164:25 (not closing orders was “one way I kept myself from working overtime”). Degraftenreed quit installing DirecTV services in July 2010. He provided no notice to DirecTV, but instead reported that he quit to Stricklin. Id. 121:17–121:21. He requests damages in an amount ranging from $0 to $21,037. D. Boris Roslov Roslov learned of an opportunity to install satellite systems from an advertisement on Craigslist. He answered the advertisement by contacting an Elite representative and attended an orientation with other technicians and an Elite supervisor. Roslov Dep. 55:16–55:6; 56:17– 57:20. During the orientation, Elite reviewed hiring requirements. At no point during the hiring process did Roslov speak to a DirecTV employee. Id. 70:7–70:10. Elite provided Roslov's training. He participated in a certification program, classroom training at an Elite facility, and on-the-job ride alongs with an experienced technician. Id. 65:3–65:11; 23:22–24:24; 66:23–67:3. The training taught him how to manipulate DirecTV's technology, aim satellite dishes, and how to install system components. He also attended weekly tech meetings with technicians and an Elite supervisor, but no one from DirecTV participated. During training, he never spoke to a DirecTV employee. Id. 70:3–70:6. Roslov owned his own tools and equipment, which he identified as a substantial investment. Id. 58:20–58:22. He had to purchase an alignment device for over $600, cable, crimping tools, ladders, uniforms, and other supplies. Id. 58:22–59:25. He used his own computer, cell phone, and vehicle. Id. 60:17–61:11. He also took payroll deductions to use a DirecTV device to status himself on-site. Id. 118:25–119:5. Although DirecTV had an approved vendor, Roslov acknowledged that he was not required to purchase equipment from only that vendor. Id. 61:12– 61:20; 137:10–137:16 (“I purchased [tools] through an approved provider, but there was nobody stopping me from buying it elsewhere.”). Roslov's workdays lasted from approximately 7:00am to 6:30pm. His days normally started by preparing materials in his home, such as printing assignments, inventorying supplies, and building satellite dishes to save time in the field. Id. 98:4–100:3; 107:3–107:18; 120:20–121:18. His workdays varied for several reasons. For example, he would report to an Elite facility even if he had no work orders to complete. Id. 86:9–87:19. He could trade work orders with other technicians or cover another technician's assignments by simply calling DirecTV's call center and updating the work order's status with the new technician ID number. Id. 108:16–108:22. He also had the ability to pick up more work and take leave by requesting off from an Elite supervisor. Id. 114:11–115:23; 126:6–126:9. **4 Roslov was not paid hourly, but only by the project. Id. 77:10–77:13. This pay *971 structure was explained to him at the Elite facility, which Roslov believed was part of a verbal contract he had with Elite. Id. 66:9–66:15; 70:11–70:16. He was paid for line items closed on each particular work order, which was also outlined on a rate sheet that once hung on a window at an Elite shop. Id. 28:2–28:21. For example, a basic installation with one receiver box had one compensation amount, but additional receivers or dish upgrades had different amounts. Id. 29:3–29:25. Roslov recorded the work orders completed in an electronic spreadsheet, which he submitted to Elite at the end of every week. Id. 34:11– 35:10. Finally, he sometimes performed custom labor for customers, and customers paid Roslov by check by endorsing it to his name. Id. 199:21–200:5. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 447 of 520 PageID 1083 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Roslov acknowledges his paychecks came from Elite and not DirecTV. Id. 26:23–27:3. When he had an issue with his pay, he notified Elite, rather than DirecTV. Id. 38:24–39:15; 40:6–40:8. For example, he questioned Jeff Messenger, an Elite supervisor, about why his pay was reduced because of customer chargebacks, but never addressed the issue with DirecTV. Id. 173:11– 173:24; 185:12–152:13. His only complaint to a DirecTV representative was to a quality assurance technician observing his work, in which he complained that the work order he was fulfilling was taking longer than what a standard job might take. Id. 41:24–41:9. Aside from this complaint, he did not submit his hours worked to Elite or to DirecTV. Id. 84:5–85:7. He acknowledges that he did not dispute his pay with anyone at DirecTV or complain to DirecTV that he was not receiving overtime. Indeed, he did not keep a record of the hours actually worked. Id. 40:6–40:12; 162:8–162:10. While fulfilling DirecTV workorders, Roslov also attended graduate school. His classes were in the evenings, and he would work on writing his thesis on the weekends. Id. 44:3–45:3. After finishing school, he received notice that he would join the military, prompting him to quit installing DirecTV services in October 2011. He provided no notice to DirecTV that he was quitting, but instead notified Messenger at Elite. Id. 190:12–190:19. Degraftenreed claims $63,437.50 in damages, which is made up of unpaid overtime and chargebacks. Id. 210:10– 211:9. II. LEGAL STANDARD Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party demonstrates that there is no genuine dispute of material fact, the non-moving party may not rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336, 340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence demonstrating a genuine factual dispute that must be resolved at trial. Id. Importantly, when considering a motion for summary judgment, all reasonable inferences must be drawn in a light most favorable to the nonmoving party. Holland v. Sam's Club, 487 F.3d 641, 643 (8th Cir. 2007). The evidence is not weighed and no credibility determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008). III. DISCUSSION [1] DirecTV argues that it is not Degraftenreed and Roslov's employer, and thus the FLSA does not apply. The existence of an employer-employee relationship is a prerequisite to an FLSA claim. See 29 U.S.C. §§ 201–219 (referencing employer and employee); see also *972 Childress v. Ozark Delivery of Mo., LLC, 95 F.Supp.3d 1130 (W.D. Mo. 2015). Whether DirecTV is the plaintiffs' employer relies on the “economic realities” of the relationship and is a question of law. See United States v. Rosenwasser, 323 U.S. 360, 362–63, 65 S.Ct. 295, 89 L.Ed. 301 (1945); Blair v. Wills, 420 F.3d 823, 829 (8th Cir. 2005); Childress v. Ozark Delivery of Mo. L.L.C., 95 F.Supp.3d 1130, 1139 (W.D. Mo. 2015). **5 [2] [3] [4] Courts analyze the economic reality in two different contexts: (1) if there are multiple hiring entities, whether the defendant can be considered a joint employer, or (2) if a plaintiff has been classified as an independent contractor, whether the defendant should have classified the plaintiff as an employee. See Chao v. Westside Drywall, Inc., 709 F.Supp.2d 1037, 1061 (D. Or. 2010). The context determines the applicable test. See Keeton v. Time Warner Cable, Inc., Case No. 2:09–CV–1085, 2011 U.S. Dist. LEXIS 71472 (S.D. Ohio July 1, 2011) (differentiating tests). When a plaintiff alleges multiple companies are joint employers, courts consider whether the alleged defendant-employer (1) possessed the power to hire and fire the plaintiff; (2) supervised or controlled plaintiffs' work schedules or conditions of employment; (3) determined the rate or method of payment; and (4) maintained employee records. See Roeder v. DIRECTV, Inc., Case No. C14– 4091 MWB, 2015 WL 5603050, 2015 U.S. Dist. LEXIS 126230 (N.D. Iowa Sept. 22, 2015); see also Chao v. A–One Medical Services, Inc., 346 F.3d 908, 917 (9th Cir. 2003) (factors appropriate when “a company has contracted for workers who are directly employed by an intermediary company”). In contrast, allegations that the plaintiff was actually a company's employee rather than an independent contractor trigger different factors: (1) extent of defendant's control over plaintiffs; (2) plaintiffs' WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 448 of 520 PageID 1084 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 investment in their own business; (3) extent of whether plaintiffs' profit or loss was determined by defendant; (4) the skill and initiative in performing the job; (5) the permanency of the relationship; and (6) the extent to which the work was integral to defendant's operations. Krupicki v. Eagle One, Inc., Case No. 4:12–CV–00150 KGB, 2014 U.S. Dist. LEXIS 46038, at *10 (E.D. Ark. Apr. 3, 2014). [5] The analysis here is complicated because of the relationship between the parties. DirecTV is connected to the Service Providers through a service agreement, and the Service Providers are connected to the technicians by separate hiring agreements. Indeed, both Degraftenreed and Roslov acknowledge that no agreement connected them to DirecTV. Degraftenreed Dep. 184:24–185:2, 60:14–60:25; Roslov Dep. 20:24–21:4, 70:11–70:13. This lack of privity initially suggests the lack of any relationship between DirecTV and the technicians. See Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61, 74 (2d Cir. 2003) (“Where, on the other hand, employees work for an entity (the purported joint employer) only to the extent that their direct employer is hired by that entity, this factor does not in any way support the determination that a joint employment relationship exists.”). To be clear, it is reasonable that Degraftenreed and Roslov believe that they worked for DirecTV: they wore DirecTV apparel, worked only on DirecTV work orders, and were reminded of DirecTV's standards. This subjective belief does not, however, enter into the economic realities analysis. See Hopkins v. Cornerstone America, 545 F.3d 338 (5th Cir. 2008) (“While this may be accurate, subjective beliefs cannot transmogrify objective economic realities. A person's subjective opinion that he is a businessman rather than an employee does not change his status.” (internal *973 quotations omitted)); Chavez v. Montes, Case No., 2015 WL 3604226 (W.D. Ark. June 5, 2015) (“[A]n employee's subjective belief as to her status as either an employee or independent contractor is immaterial to the question of liability under the FLSA.”). 1. Degraftenreed As an initial matter, DirecTV did not move for judgment against Degraftenreed for the lack of an employee-employer relationship, but instead inferred the absence of a relationship to support its other arguments. Degraftenreed responded to those arguments and emphasized the existence of the relationship. Indeed, Degraftenreed moved for partial summary judgment on that issue. See Pls.' Mem. Supp. Mot. Partial Summ. J. 4–22, Doc. No. 65 (plaintiffs arguing DirecTV is employer). Therefore, determining whether the employer- employee relationship exists at all is ripe for a decision. See Lester v. Wildwood Financial Group, Ltd., 205 F.3d 1346, 1346 (8th Cir. 2000) (granting judgment sua sponte appropriate when there is notice and an opportunity to present evidence and argument); Madewell v. Downs, 68 F.3d 1030, 1048–49 (8th Cir. 1995) (constructive notice sufficient). **6 It is unclear whether Degraftenreed believes DirecTV is a joint employer or simply misclassified him as an independent contractor. In his complaint, he acknowledges that Service Providers hire technicians, suggesting the Service Providers are an employer and that DirecTV must be a joint employer, see Compl. ¶ 37, but now references independent contractors. See Mem. Supp. Mot. Partial Summ. J. 6–7, Doc. No. 65. Regardless, DirecTV is not Degraftenreed's employer. a. Joint Employer [6] Assuming the Service Provider was his employer, Degraftenreed's claim depends on DirecTV being a joint employer. The facts are largely undisputed, though the parties disagree on how those facts apply to the law. The four factors for determining joint employment demonstrate DirecTV was not a joint employer. Regarding the first factor (authority to hire and fire), it is unquestionable that DirecTV has a role in hiring and firing technicians, but this is limited to quality control. By establishing baseline criteria, DirecTV created guidelines for contractors to rely on when hiring personnel. This quality control, however, is not the type of authority contemplated by the FLSA. See, e.g., Jacobson v. Comcast Corp., 740 F.Supp.2d 683, 689 (D. Md. 2010). Indeed, there is no evidence that Degraftenreed's hiring decision (or any of the technicians hired by his Service Provider) were directed by DirecTV. Perhaps the most significant evidence is Degraftenreed himself: ProSat made the decision to begin Degraftenreed's training before Degraftenreed possessed the requisite training and background checks, and when Degraftenreed terminated employment, he delivered his termination notice to Stricklin, not DirecTV. Degraftenreed Dep. 102:19– 103:22; 121:17–121:21. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 449 of 520 PageID 1085 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 Second, supervision and control asks whether the putative employer exercises “effective control of the terms and conditions of the plaintiff's employment.” Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61, 74–75 (2d Cir. 2003); see also Rutherford Food Corp. v. McComb, 331 U.S. 722, 724–26, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (comparing control to setting work schedules or altering work conditions). DirecTV's installation guidelines and quality control mechanisms will not, on their own, suggest an employment relationship. See, e.g., Jacobson, 740 F.Supp.2d at 690 (“detailed instructions and a strict quality control mechanism will not, on their own, indicate an employment relationship”). Indeed, *974 Degraftenreed could decide on his own which jobs to perform first if he was double-booked; he could request additional work if he wanted it; and he could avoid being assigned additional work without recourse at his discretion. Degraftenreed Dep. 137:6–137:25; 156:2– 156:6; 164:11–164:25. This background leans against employer status. Regarding rate of pay, DirecTV had no involvement in Degraftenreed's compensation. DirecTV did not issue his paychecks because his direct deposits came from the Service Provider. There is no evidence that DirecTV instructed the Service Providers how to pay its employees. The evidence does show, however, that DirecTV paid a Service Provider by terms outlined in the service agreement. While Degraftenreed is entitled to an inference that the Service Provider's decision to pay him a certain amount may be influenced by the compensation it received from DirecTV, this is no different than any other contractor relationship, which is not the control contemplated by the FLSA. See Tafalla v. All Fla. Dialysis Serv., Inc., 2009 WL 151159 (S. D. Fl. 2009) (noting a hospital does not contractor subcontractor's pay merely because the contractor's decision to compensate subcontractor might be influenced by hospital's compensation scheme). The record cannot be reasonably disputed that the Service Providers, not DirecTV, determined how their technicians would be paid. **7 Finally, there is some evidence to suggest that DirecTV maintains records for technicians, namely identification numbers, names, and status information. This type of information is nothing more than quality control information. See Jacobson, 740 F.Supp. at 692. There is no evidence that DirecTV maintained files more commonly part of employment records such as pay stubs, employment applications, and tax forms. Indeed, the background check form—a form Degraftenreed signed to be considered for employment—came from ProSat, not DirecTV. Thus, there is simply not sufficient evidence to suggest DirecTV maintained employment records. Considering these circumstances, DirecTV could not be a a joint employer. b. Independent Contractor [7] If Degraftenreed had any relationship with DirecTV, it was that of an independent contractor. The first (degree of control over Degraftenreed) and third (control over profit and loss) factors go hand in hand, and both weigh against employer status. Although it is true that DirecTV initially assigned Degraftenreed's work orders, he acknowledges that local technicians modified his routes, thus limiting much of DirecTV's control. Even if he had been assigned orders, he testified that he could take days off; he could decide not to take additional orders at the end of the day without recourse; and he could complete some work orders in any order if he was double-booked. Id. 156:2–156:6; 181:16–182:6. While DirecTV's installation standards and uniform requirements certainly provided expectations, installation specifications and quality control measures are “entirely consistent with the standard role of a contractor who is hired to perform highly technical duties.” Herman v. Mid–Atl. Installation Servs., 164 F.Supp.2d 667, 672 (D. Md. 2000). Importantly, this control does not negate the reality that Degraftenreed was still operating as a “separate economic entity.” See Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1312–13 (5th Cir. 1976). Accordingly, the extent of control and Degraftenreed's control over his own profits weighs against employer status. Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 171 (2d Cir. 1998) (Particularly relevant to the control factor is whether a worker is “free to set his own *975 schedule and take vacations when he wanted.”). The second (investment in the business), fourth (degree of skill required), and fifth (permanancy of employment) factors, weigh strongly in DirecTV's favor. Degraftenreed purchased his own equipment, tools, and supplies, his own fuel and insurance, and used his own cell phone and computer system, for use in completing the DirecTV orders. This is a significant investment, favoring WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 450 of 520 PageID 1086 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 independent contractor status. See, e.g., Krupicki, 2014 U.S. Dist. LEXIS 46038, at *14–18. As for the skill required, Degraftenreed admits that specialized training and skills are required and that someone off the street cannot perform the job. Dep. 120–121. Indeed, “[t]he skills involved in cable installation and service are akin to carpentry and electrical work.” Herman, 164 F.Supp.2d at 675. “Workers in these trades—including [cable installers]—are traditionally designated as independent contractors.” Scruggs v. Skylink, Ltd., 2011 WL 6026152, at *7 (S.D. W.V. Dec. 2, 2011). Finally, there is no evidence to suggest that he expected his work to continue, uninterrupted, for any duration of time. It is true that he worked for the Service Provider for many months; however, he also worked another job along side his installation job. He also testified that there were occasions when he had no work and that work orders fluctuated. Therefore, permanance is lacking. See Scruggs, 2011 WL 6026152 at *7 (“The more permanent the relationship, the more likely the worker is to be an employee. Further, greater exclusivity may imply an employment relationship.” (internal quotations omitted)). **8 The sixth factor (the importance of Degraftenreed's work on DirecTV's business) is arguably the only factor suggesting he was an independent contractor. This conclusion is unfounded, however, because the fact that a business depends on its independent contractors is not itself indicative of an employment relationship. See, e.g., Scruggs, 2011 WL 6026152, at *8 (technicians are critical to cable providers, but that factor alone cannot tip the scales). A rule otherwise would transform any independent contractor into an employee simply because the work performed—whether the construction of a new warehouse, installation of phone lines, or creating new marketing materials—was important to the business. In view of these factors, if any relationship exists between DirecTV and Degraftenreed, is that of an independent contractor. c. Conclusion While it is true that Degraftenreed may very well perceive that he worked for DirecTV, the law does not recognize that DirecTV was his employer. In the absence of an employer-employee relationship, the FLSA does not apply, and Degraftenreed's claim must be dismissed with prejudice. 2. Roslov DirecTV moved specifically on the point that Roslov was an independent contractor and not an employee. Under the circumstances, however, Roslov will be examined within the same two contexts. a. Joint Employer [8] DirecTV cannot be Roslov's employer for many of the same reasons it cannot be Degraftenreed's employer. Similar to Degraftenreed, DirecTV had little role in hiring and firing Service Provider technicians aside from establishing minimum requirements. Roslov responded to an advertisement and met with Elite representatives to review requirements. At no time did he speak to a DirecTV employee. See Roslov Dep. 55:16–55:6; 56:17–57:20; 57:25–58:19; 70:7–70:10. When he *976 terminated employment, he did not report this to DirecTV, but rather to Elite. Id. 190:12–190:19. His training, which presumably went to helping Roslov become eligible to complete work orders, was conducted by Elite. Id. 65:12– 65:15; 65:3; 65:11; 23:22–24:24; 66:23–67:3; 23:22–24:6. There is no evidence that DirecTV directed that Elite hire Roslov or any other technicians. Thus, the lack of control weighs against employer status. Regarding supervision and control, Roslov had flexibility throughout his day. He decided on his own to build satellite systems in his home rather than in the field, id. 98:4–100:3; 107:3–108:18; 120:20–121:18; he could cover another technician's assignments, id. 108:16–108:22; and he could negotiate with other technicians to either help him with his work orders or help other technicians with their orders, id. 150:5–150:25. If he was double-booked, he could preference one order over the other to minimize the time spent in the car and money spent on gas, see id. 146:9–146:18; he could work jobs in addition to fulfilling DirecTV work orders if he chose to do so, id. 156:18– 156:24; and he was not directed to purchase any of his supplies from any single vendor, but could shop around as he saw fit, id. 161:18–161:20. Aside from the quality control guidelines, DirecTV did not sufficiently control Roslov's daily activities. Regarding the pay structure, there is no evidence that DirecTV mandated or controlled Roslov's pay, but WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 451 of 520 PageID 1087 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 rather significant evidence that Elite controlled it. Roslov believes that his pay structure was incorporated into a verbal contract he had with Elite, id. 66:9–66:15; 70:11– 70:16, which was also outlined on a rate sheet that hung out at an Elite facility, id. 28:2–28:21. His paychecks came from Elite, and when he had an issue with his pay, he confronted Elite, not DirecTV. Id. 38:24–39:15; 40:6–40:8. Even if Elite's rate of pay was influenced by how much Elite received from DirecTV, this is not sufficient to satisfy this factor. **9 Finally, it cannot be disputed that DirecTV did not maintain Roslov's employment records. While DirecTV maintained onside status data, there is no evidence in the record that DirecTV maintained any other employment paperwork. Accordingly, the economic reality is that DirecTV was not a joint employer. b. Independent Contractor [9] If there was any relationship between Roslov and DirecTV at all, it had to be that of an independent contractor. Regarding control, the inquiry remains whether DirecTV exerted such significant control that Roslov was no longer a separate economic entity in business for himself. See Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1312–13 (5th Cir. 1976). Of particular importance here is whether Roslov was “free to set his own schedule and take vacations when he wished,” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 171 (2d Cir. 1998), and it is undisputed that Roslov could do so. He was able to switch work orders with other technicians as needed, Roslov Dep. 108:12– 108:25; pick up more work if he desired it, id. 114:8– 114:18; decide to save time on the work site by assembling dishes at home, id. 122:10–122:17; and take time off as needed, id. 125:20–126:12. He could decide which orders to fulfill first if double booked, id. 146:9–146:18, and had the flexibility to “hire” other Elite technicians to help fulfill his work orders, id. 150:5–150:25. He was not restrained from engaging in outside work, id. 156:18– 156:24, and if he was contacted to perform an installation job on a new lead, he had the opportunity to deny it, id. 19:6–20:3. This supports a finding that Roslov was an independent contractor. *977 Regarding Roslov's investment in his own business and his personal control over profit and loss, Roslov was in control. There were no agreements guaranteeing Roslov a certain income level each week, yet Roslov could take on additional work orders to make more money, hire other technicians to help him work orders, or work another technician's order to supplement his own income. See Browning v. Ceva Freight, LLC, 885 F.Supp.2d 590, 608 (E.D. N.Y.2012) (noting lack of guaranteed income and ability to make more money based on own actions). Furthermore, Roslov made a number of decisions to determine his overall profitability, such as where to buy his uniforms, where to purchase tools and equipment, how to save money on fuel. He recognized that these were significant investments —indeed, many putative technicians did not return to training after learning of the requirement. While DirecTV had a preferred vendor for these purchases, Roslov could make the choice on his own where to purchase items. Thus, the extent of DirecTV's control was minimal. The third factor, degree of skill, weighs against finding an employer relationship. As previously noted, technicians must possess specialized skills to properly align and install satellite systems. See Herman, 164 F.Supp.2d at 675; Scruggs, 2011 WL 6026152, at *7; Carrell v. Sunland Const., Inc., 998 F.2d 330, 333 (5th Cir. 1993) (“That the [companies] tested and certified each [worker] before a job demonstrates the specialized nature of the work.”). Roslov's ability to better his skills over time could result in additional work orders, see Roslov Dep. 168–22–170:7 (discussing proficiency over time), and could prevent him from having to turn over work orders to other technicians. While he had to follow standards in performing installations, these standards did not negate the independence he had in making decisions, such as negotiating with customers to prompt direct compensation from a customer for custom labor. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1060 (2d Cir. 1988) (nurses who cannot use skills to build business weighs against independent contractor status). **10 [10] Regarding permanence, “[t]he more permanent the relationship, the more likely the worker is to be an employee.” Schultz v. Capital Int'l Security, Inc., 466 F.3d 298, 309 (4th Cir. 2006). Here, there is no evidence that the Roslov agreed to work for DirecTV for any duration or that Roslov was prohibited from obtaining similar work after he stopped installing WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 452 of 520 PageID 1088 Roslov v. DirecTV Inc., 218 F.Supp.3d 965 (2016) 2016 WL 6892110 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 DirecTV systems. See, e.g., Harris v. Skokie Maid and Cleaning Service, Ltd., Case No., 2013 WL 3506149, at *9 (N.D. Ill. July 11, 2013) (noting a non-compete extended contractually extended employment when workers would normally be free to use skills in open market). Roslov was not prohibited from outside work, and he testified that there were times when he had no work. Roslov Dep. 86:6– 86:17, 156:18–156:24. Thus, permanence is lacking. As was the case with Degraftenreed, the importance of installing satellite dishes is arguably the only factor leaning in finding an employer-employee relationship, which DirecTV concedes. Def.'s Opp. Pls.' Mot. Partial Summ. J. 12–13, Doc. No. 71. Notwithstanding that the final factor favors employment status, the ultimate conclusion after considering the factors is that as a matter of law, DirecTV was not Roslov's employer. See Browning, 885 F.Supp.2d at 610 (“[W]hile the Plaintiffs' work was integral [the defendant], this factor only weighs slightly in favor of finding that the Plaintiffs should qualify as employees under the FLSA, and would not prevent the Court from finding, as a matter of law, that the Plaintiffs are independent contractors.”). Accordingly, DirecTV's *978 motion for summary judgment against Roslov is granted. c. Conclusion There is no employer-employee relationship between Roslov and DirecTV. Accordingly, the FLSA does not apply and Roslov's claim is dismissed with prejudice. IV. CONCLUSION For the aforementioned reasons, defendants' motion for summary judgment [Doc. No. 59] is granted as to Boris Roslov, and Roslov's claim is dismissed with prejudice. Reginald Degraftenreed's claim is dismissed sua sponte with prejudice. All remaining motions are denied as moot. IT IS SO ORDERED this 4th day of November 2016. All Citations 218 F.Supp.3d 965, 2016 WL 6892110 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 453 of 520 PageID 1089 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Berrocal v. Moody Petroleum, Inc., S.D.Fla., March 31, 2010 147 F.Supp.2d 1313 United States District Court, S.D. Florida, Miami Division. Daniel SANTELICES, on behalf of himself and all others similarly situated, Plaintiffs, v. CABLE WIRING and South Florida Cable Contractors, Inc., Defendants. No. 98–7489–CIV. | March 6, 2001. Synopsis Cable installer brought action against cable installation company and outsourcing company under Fair Labor Standards Act (FLSA) seeking to recover damages for unpaid overtime. On outsourcing company's motion for summary judgment, the District Court, Jordan, J., held that: (1) genuine issue of material fact existed as to nature and degree of control that outsourcing company exerted over activities of worker during alleged period of employment; (2) installer was not employee of installation company; (3) installer failed to establish that joint employment relationship existed between cable installation company and outsourcing company that secured installer's services; and (4) genuine issue of material fact existed as to whether worker was entitled to overtime compensation under FLSA. Motion denied. West Headnotes (14) [1] Federal Civil Procedure Materiality and genuineness of fact issue The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment since the requirement is that there be no genuine issue of material fact; a “material fact” is one that might affect the outcome of the case, and for a factual issue to be considered “genuine issue,” it must have a real basis in the record. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 1 Cases that cite this headnote [2] Labor and Employment Questions of Law or Fact A determination of employment status under the Fair Labor Standards Act is a question of law; subsidiary findings are considered issues of fact. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 2 Cases that cite this headnote [3] Labor and Employment Employment relationship Whether an employment relationship exists under the Fair Labor Standards Act must be judged by the economic realities of the individual case and not by traditional common law principles. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 3 Cases that cite this headnote [4] Labor and Employment Employment relationship The touchstone of “economic reality” in analyzing a possible employee and employer relationship under the Fair Labor Standards Act is dependency; a court looks at all of the surrounding circumstances of the “whole activity” to determine whether the putative employee is economically dependent upon the alleged employer. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 22 Cases that cite this headnote [5] Labor and Employment Employment relationship Whether or not the parties intended to create an employment relationship, for the purpose Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 454 of 520 PageID 1090 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 of application of the Fair Labor Standards Act, is irrelevant and merely labeling an individual as an employee or an independent contractor is not dispositive; courts look to see whether the putative employee depends, or depended, on the alleged employer for his economic livelihood based upon the parties' actual working relationship. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 8 Cases that cite this headnote [6] Labor and Employment Independent Contractors When applying the “economic realities test” to determine if a worker was an employee or an independent contractor, for the purpose of application of the Fair Labor Standards Act, courts use the following factors: (1) the nature and degree of control of the workers by the alleged employer; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the alleged employer's business. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 31 Cases that cite this headnote [7] Labor and Employment Independent Contractors When applying the “economic realities test” to determine if a worker was an employee or an independent contractor for the purpose of analyzing a case under the Fair Labor Standards Act, no one factor is controlling, nor is the list exhaustive; the weight of each factor depends on the light it sheds on the putative employee's dependence on the alleged employer, which in turn depends on the facts of the case. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 21 Cases that cite this headnote [8] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issue of material fact existed as to nature and degree of control that outsourcing company, as alleged employer, exerted over activities of worker during alleged period of employment, precluding summary judgment in lawsuit under Fair Labor Standards Act (FLSA); although some aspects of workers conduct were similar to that of an independent contractor, not all meaningful aspects of his work were controlled by worker. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. Cases that cite this headnote [9] Labor and Employment Employment relationship When determining economic dependency of an worker on an alleged employer under the Fair Labor Standards Act, the issue of control is only significant when it shows that an individual exerts such control over a meaningful part of their business that they stand as a separate economic entity. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 1 Cases that cite this headnote [10] Labor and Employment Particular employees Cable installer was not employee of cable installation company, for purpose of installer's claim for unpaid overtime wages under Fair Labor Standards Act; installer failed to provide sufficient evidence showing either specific indicia of control by installation company over installation services, or sufficient link between installation Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 455 of 520 PageID 1091 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 company and activities of company that actually paid installer for work he performed. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 14 Cases that cite this headnote [11] Labor and Employment Persons and employments within regulations in general Cable installer failed to establish that joint employment relationship existed between cable installation company and outsourcing company that secured installer's services, for purpose of installer's claim under Fair Labor Standards Act for unpaid overtime compensation; installer failed to provide proof of substantial control or supervision over worker or outsourcing company by installation company. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; 29 C.F.R. § 791.2(a). 9 Cases that cite this headnote [12] Labor and Employment Joint or multiple employers To determine whether joint employment exists, courts consider several relevant factors, including the putative employer's nature and degree of control of the workers, the degree of supervision, the direct or indirect of the work, the power to determine the pay rates of methods of payment, the right to directly or indirectly hire, fire, or modify the employment conditions of the workers, the preparation of payroll and payment of wages, the ownership of facilities where work occurred, whether the worker performed a line job integral to the end product, and relative investment in equipment and facilities. 3 Cases that cite this headnote [13] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issue of material fact existed as to whether cable installer was entitled to overtime compensation under Fair Labor Standards Act, precluding summary judgment; although installer did not state with precision the number of hours of overtime that he worked, installer did establish sufficient evidence from which a fact finder could draw an inference of how many overtime hours were worked and burden of such imprecision fell on outsourcing company, as alleged employer, who had legal obligation to keep accurate records, and no such records were provided. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 15 Cases that cite this headnote [14] Labor and Employment Working time Labor and Employment Evidence An employee who brings suit under the Fair Labor Standards Act for unpaid minimum wages or unpaid overtime compensation and liquidated damages has the initial burden of proving that he performed work for which he was improperly compensated. Fair Labor Standards Act of 1938, § 16, 29 U.S.C.A. § 216. 10 Cases that cite this headnote Attorneys and Law Firms *1316 Jonathan Evan Kroner, Miami, FL, for Plaintiffs. Neil F. McGuinness, Baker & McKenzie, Miami, FL, Jill Nexon Berman, Berman, Wolfe & Rennert, Miami, FL, for Defendants. ORDER GRANTING IN PART AND DENYING IN PART SUMMARY JUDGMENT JORDAN, District Judge. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 456 of 520 PageID 1092 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Daniel Santelices sues Cable Wiring, Inc. and South Florida Cable Contractors, Inc. pursuant to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. Mr. Santelices seeks to recover damages for unpaid overtime allegedly worked while in the defendants' employ. I. JURISDICTION Mr. Santelices filed his complaint against CWI on December 29, 1998 [D.E. 1]. He amended his complaint, adding SFCC as a defendant, on April 13, 1999 [D.E. 17]. Jurisdiction exists pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. CWI and SFCC each move for final summary judgment on Mr. Santelices' claims. For the reasons explained below, CWI's motion for summary judgment [D.E. 57] is GRANTED, and SFCC's motion for summary judgment [D.E. 60] is DENIED. II. STANDARD OF REVIEW [1] Federal Rule of Civil Procedure 56(c) provides for summary judgment when all “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In Celotex, the seminal case concerning summary judgment, the Supreme Court explained that the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the *1317 nonmoving party's case necessarily renders all other facts immaterial. Id. at 322–23, 106 S.Ct. 2548 (emphasis added). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment, the requirement is that there be no genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that might affect the outcome of the case. See id. at 248, 106 S.Ct. 2505. For factual issues to be considered genuine, they must have a real basis in the record. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586– 87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact; the burden then shifts to the nonmovant to come forward with specific facts on each essential element of his claims by showing that there is a genuine issue for trial such that a reasonable jury could find in his favor. See id. “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505. In considering a motion for summary judgment, it is not part of the court's function to decide issues of material fact, but rather to determine whether such issues exist to be tried. See id. at 249, 106 S.Ct. 2505. The court must avoid weighing conflicting evidence and making credibility determinations. See id. at 255, 106 S.Ct. 2505. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in the nonmovant's favor. See id. Thus, in resolving the defendants' motions, the task is to determine whether, considering the evidence in the light most favorable to Mr. Santelices, the nonmoving party, there is evidence on which a jury could reasonably find a verdict in his favor. See id. at 252, 106 S.Ct. 2505; Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). III. THE PARTIES' POSITIONS Mr. Santelices alleges that he was employed by CWI and SFCC as a cable installer for one or more workweeks between February and November of 1998 and that he was not properly compensated for hours he worked in excess of forty hours per workweek. CWI is a licensed cable installation vendor for TCI of South Florida. CWI is not related to, controlled by, or legally affiliated with SFCC as a parent or subsidiary company, nor does CWI have an ownership interest in SFCC. On January 1, 1998, CWI WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 457 of 520 PageID 1093 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 entered into an Independent Contractor's Agreement with SFCC (“the CWI–SFCC Agreement” [D.E. 60, Exh. 1] (Jan. 1, 1998)). Under the CWI–SFCC Agreement, SFCC agreed to perform residential cable installations in Miami– Dade and Broward Counties. Mr. Santelices was hired to perform cable installation services pursuant to the Agreement. The defendants argue that Mr. Santelices was not hired by CWI in any capacity and was not hired by SFCC as an “employee” within the meaning of the FLSA, but was merely an independent contractor for SFCC. The defendants rely on cited excerpts from Mr. Santelices' deposition testimony (which reflects Mr. Santelices' understanding that he was an independent contractor), as well as the testimony of CWI's president Nick Karl, who says that CWI had no knowledge of Mr. Santelices prior to this lawsuit, no direct or indirect contact with him while he performed cable installation services for SFCC, and no control over SFCC's working relationship with Mr. Santelices. The defendants also *1318 rely on copies of: (1) Mr. Santelices' Independent Contractor's Agreement with SFCC; (2) Mr. Santelices' 1998 Individual Income Tax Return reflecting his operation of a cable installation business and self-employment; and (3) Mr. Santelices' affidavit of independent contractor status included in a worker's compensation exemption form filed with the State of Florida in July of 1997. The defendants further argue that even if Mr. Santelices were considered an “employee” within the meaning of the FLSA, he has not sufficiently demonstrated that he worked any overtime. IV. THE FLSA Congress enacted the FLSA in 1938 as a comprehensive remedial scheme to lessen, if not eliminate, the distribution in commerce of goods produced under deficient labor conditions. See 29 U.S.C. § 202(a). The elimination of low wages and long hours was chosen as the method “to free commerce from the interferences arising from production of goods under conditions detrimental to the health and well-being of workers.” Rutherford Food Corporation v. McComb, 331 U.S. 722, 727, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). The Act imposes a minimum wage for covered employees, 29 U.S.C. § 206, requires that covered employers maintain records of their employees' services, 29 U.S.C. § 211(c), and prohibits employers from employing any worker for a workweek longer than forty hours unless the employee receives compensation for the excess hours at a rate not less than one and one half times the regular rate at which the worker is employed, 29 U.S.C. § 207(a)(1). A. EMPLOYEE OR INDEPENDENT CONTRACTOR [2] The first question is whether Mr. Santelices can be considered an “employee” of CWI and/or SFCC who is therefore entitled to protection under the FLSA. A determination of employment status under the FLSA is a question of law. See Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996); Brouwer v. Metropolitan Dade County, 139 F.3d 817, 818 (11th Cir.1998) (citing Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir.1997)). Subsidiary findings, however, are considered issues of fact. See Patel v. Wargo, 803 F.2d 632, 634 n. 1 (11th Cir.1986). [3] [4] [5] The FLSA vaguely explains what is meant by the term “employee.” Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1188 (5th Cir.1979). For example, 29 U.S.C. § 203(e)(1) defines an “employee” as “any individual employed by an employer.” An “employer,” in turn, includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). To “employ” is defined as to “suffer or permit to work.” 29 U.S.C. § 203(g). Whether an employment relationship exists under the FLSA must be judged by the “economic realities” of the individual case and not by traditional common-law principles. See Antenor, 88 F.3d at 929; Donovan v. New Floridian Hotel, 676 F.2d 468, 470 (11th Cir.1982). See also Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 325–26, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (explaining that the definition of employ in the FLSA is expansive and collecting cases). The touchstone of “economic reality” in analyzing a possible employee/employer relationship for purposes of the FLSA is dependency. The courts look at all of the surrounding circumstances of the “whole activity” to determine whether the putative employee is economically dependent upon the alleged employer. Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961); Aimable v. Long & Scott Farms, 20 F.3d 434, 439 (11th Cir.1994); Harrell v. Diamond A Entm't, Inc., 992 F.Supp. 1343, 1348 (M.D.Fla.1997). *1319 Whether or not the parties intended to create an employment relationship is WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 458 of 520 PageID 1094 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 irrelevant. See Donovan, 676 F.2d at 471 (citing Brennan v. Partida, 492 F.2d 707, 709 (5th Cir.1974)). Likewise, merely labeling an individual as an employee or an independent contractor is not dispositive. See Rutherford Food, 331 U.S. at 729, 67 S.Ct. 1473 (“Where the work done, in its essence, follows the usual path of an employee, putting on an ‘independent contractor’ label does not take the worker from the protection of the Act.”). In other words, courts look to see whether the putative employee depends (or depended) on the alleged employer for his economic livelihood based upon the parties' actual working relationship. Antenor, 88 F.3d at 937–38. [6] [7] In applying the “economic realities” test, the courts have identified a number of factors which are useful in distinguishing employees from independent contractors. These factors include: (1) the nature and degree of control of the workers by the alleged employer; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the alleged employer's business. Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir.1979) (footnote omitted). No one factor is controlling, nor is the list exhaustive. The factors simply summarize the matters deemed relevant by the Supreme Court in Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947), United States v. Silk, 331 U.S. 704, 716, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947), and Rutherford Food, 331 U.S. at 729, 67 S.Ct. 1473, to help gauge the degree of dependence of an alleged employee on the business with which they are connected. The weight of each factor depends on the light it sheds on the putative employee's dependence on the alleged employer, which in turn depends on the facts of the case. See Antenor, 88 F.3d at 933. [8] A review of each of these factors reveals that a material issue of fact exists with regard to the amount of control SFCC exerted over Mr. Santelices' activities during the alleged period of employment and whether Mr. Santelices falls within the protections of the FLSA. The record also shows that the amount of supervision or control exerted by CWI over Mr. Santelices does not implicate employee status under the FLSA. Mr. Santelices relies in large part on certain portions of the CWI–SFCC Agreement in arguing that both CWI and SFCC acted as his joint employer. For example, the Agreement requires SFCC to use care and diligence in hiring and retaining employees, and repeatedly refers to SFCC's “employees.” CWI–SFCC Agreement ¶¶ 3, 4, 7– 11, 13, 15, 16. The Agreement also provides, however, that SFCC pay its “employees” according to the terms of the contractual relationship between SFCC and its workers. Id. ¶ 8. This contractual language arguably supports an inference of an employment relationship between Mr. Santelices and SFCC, but not between CWI and Mr. Santelices. In fact, the Agreement specifically provides that SFCC's employees are not employees of CWI. Id. ¶ 4, 9. Nevertheless, the CWI– *1320 SFCC Agreement does not satisfy the “economic realities” test, which requires that a court consider all the circumstances of the parties' actual working relationship. See Rutherford Food Corp., 331 U.S. at 730, 67 S.Ct. 1473. B. MR. SANTELICES AND SFCC SFCC adopts CWI's motion in its entirety, but fails to address whether it exercised control over Mr. Santelices' work. Instead, SFCC relies on CWI's attempt to highlight those aspects of Mr. Santelices' working relationship that portray him as an independent contractor, such as Mr. Santelices' written agreement to work as an independent contractor, his specialized skill of cable installation, his significant investment in tools and equipment, his filing of a separate tax return for his installation business, his maintenance of his own liability insurance, his application for exemption from the state's workers compensation laws, the fact that he was assigned a federal employer identification number, and the fact that SFCC did not provide him employment benefits. Mr. Santelices disputes the defendants' version of the facts, however, and contends that he did not operate WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 459 of 520 PageID 1095 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 as an independent businessman. See Mednick v. Albert Enters., Inc., 508 F.2d 297, 301–02 (5th Cir.1975) (explaining that the concept of economic dependency is also considered in terms of whether the individual is “in business for himself”). He argues that he and the other cable installers were required to work to the defendants' specifications, and that the defendants actually exert a greater degree of control over the installers' activities than they acknowledge. Several attributes of Mr. Santelices' work support characterizing him as an independent contractor. His work requires the application of a special skill to properly install digital cable. This skill includes the ability to competently connect cables from a main feed outside into a home (to the television set and VCR), run cables in between walls, bury cable lines underground, and install converter boxes. Mr. Santelices testified that he also learned the more technical side of cable installation, including construction work with cable, underground fiber, splicing taps, and making new systems. See Deposition of Daniel Santelices at 11, 23 [D.E. 66] (Sept. 29, 1999). Mr. Santelices testified that he was required to demonstrate his special skill, his ability to satisfy TCI technical specifications in performing digital/ cable work, by participating in a day-long digital cable installation training class at TCI under TCI's supervision. Mr. Santelices was also required to pass a written exam and physically demonstrate his proficiency at digital cable installations. See id. at 66–67. Furthermore, a cable installer in today's market is considered a skilled tradesman. See, e.g., T & T Communications, Inc. v. Florida Dep't of Labor & Employment Sec., 460 So.2d 996, 998 (Fla. 2d DCA 1984) (holding that “cable installers are skilled tradesmen”); Dole v. Amerilink Corp., 729 F.Supp. 73, 77 (E.D.Mo.1990) ( “[T]he [cable] installers possess the special skills of carpenters and electricians.”). Mr. Santelices invested a significant amount of money in his work tools and equipment, further supporting the proposition that he was an independent contractor. Mr. Santelices invested approximately $850 for tools, including pliers, cutters, krimpers, drills, electric drills, screwdrivers, terminator tools, and fish tape. He purchased his own pick-up truck for $6,000, which was equipped to carry his toolbox and tools and a mounted ladder. He also purchased his own pager so that customers could reach him, and paid the bills for use of the pager. See Santelices Deposition at 61. Yet SFCC provided him *1321 with certain tools not available on the open market and which were dedicated for the TCI system. See id. at 34–36. Mr. Santelices also admits to maintaining his own general liability insurance and having applied for a federal employer's identification number (“FEIN”). He contends that he was pressured by the cable companies from which he sought work to obtain a FEIN and apply for exemption under the state workers compensation laws, explaining that he would be denied work if he failed to do so. See id. at 44–47. He was also paid on a per job basis. See id. at 182. Evidence also exists, however, that supports an employment relationship. For example, because SFCC's work was to complete residential cable installation services in Broward and Miami–Dade Counties, Mr. Santelices' cable installation was an integral part of SFCC's work. See Rutherford Food Corp., 331 U.S. at 729, 67 S.Ct. 1473, Mr. Santelices has also presented evidence, set forth below, showing “specific indicia of control” by SFCC over his daily employment activities. See Aimable, 20 F.3d at 440 (holding that the control factor is properly limited to “specific indicia of control (for example, direct employment decisions such as whom and how many employees to hire, whom to assign to specific tasks, and how to design the employees' management structure)”). See also Antenor, 88 F.3d at 933–34 (discussing the role control plays in drawing distinctions between employees and independent contractors). As evidence of SFCC's control, Mr. Santelices testified that he reported each work day to a warehouse operated by SFCC, and that his supervisor at the warehouse determined the starting times each day. If he wanted a work assignment, he was required to report for work at 6:30 a.m. “[I]t was verbally said to the whole company by the supervisor that's what time you had to be there.” Santelices Deposition at 111–12. Mr. Santelices believed that he would be fired for any absence, and testified that “a couple guys got fired for not showing up.” Id. at 113. Mr. Santelices testified that he would be reprimanded or denied work if he arrived late, and recalled instances where people were reprimanded or suspended for arriving late. See id. at 113–14. Mr. Santelices testified that when an installer failed to arrive on time, his routes were reassigned to other installers, who were required to perform the extra work. He claims he could not turn down work, and WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 460 of 520 PageID 1096 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 understood that if he refused extra work orders, he would be penalized. See id. at 114, 146. Mr. Santelices also stated that when he was working for “the company” (whose warehouse location is operated by SFCC and is now understood as SFCC, see id. at 224), he was not at liberty to complete the assigned installation jobs on his own schedule, but had to adhere to certain time frames established by SFCC. The SFCC supervisor distributed the routes with specific time frames in which to perform the assigned jobs, e.g., 8 to 11 a.m., 11 to 2 p.m., 1 to 4 p.m., 2 to 5 p.m., and 4 to 7 p.m. The time frames were taken from the work orders provided by TCI. See id. at 53. Although Mr. Santelices was permitted to adjust his daily schedule if he were running late or ran into an unexpected delay, and he did so on occasion, he generally adhered to SFCC's provided time frames. At these times, either he called the customer directly or the company called the customer to advise the customer that he was behind schedule. Regardless of whether he or the company called, appointments were scheduled or rescheduled through TCI or SFCC. Mr. Santelices further testified that the manner in which he performed his work *1322 was according to specifications provided him by “the company.” He understood that to keep his job, he must follow the specifications. See id. at 181. Mr. Santelices was required to maintain periodic communication with the company throughout the day by using the company's two-way radio. The purpose of the radio was to keep in touch with the dispatcher, to report updates and completions on jobs, to report “not homes,” and, if need be, to request assistance from another installer. See id. at 89. A monthly charge of twelve dollars was deducted from his pay check for use of the radio. See id. at 88. See also Burgess v. NaCom Cable Co., 923 S.W.2d 450, 453 (Mo.Ct.App.1996) (“Periodic communication with radio dispatch throughout the day is a clear emblem of control and [a] scheduling benefit to NaCom [cable company/ employer].”) Importantly, Mr. Santelices asserts that after working with the company for about a month, he was given extra duties. The extra duties included assisting in the distribution of installation materials (cable, wire, clamps, splitters), making copies of work orders, assigning digital boxes, and cleaning up around the office. See Santelices Deposition at 141–46. Mr. Santelices testified that these tasks were unique to him as a cable installer; no other installer was given these extra duties. See id. at 142. He was told by his supervisor that he would be paid fifty dollars weekly to perform these other tasks. See id. at 143. Mr. Santelices further testified that although he paid for and maintained his own general liability policy and filed for a worker's compensation exemption, SFCC deducted 7% from every paycheck for his coverage under its general liability insurance policy and deducted monies from his paycheck for workers compensation. See id. at 73, 122, 202. Furthermore, although the defendants contend that Mr. Santelices had the ability to control his revenues and earn more money by performing additional services at the customer's request, Mr. Santelices' testimony indicates that this control was limited. He was first required to perform the service listed on the work order. Only if time permitted could he then perform additional cable services. See id. at 99–100. Before installing a cable box not indicated on a work order, Mr. Santelices claims he was required to seek permission from the company [SFCC] which would in turn obtain authorization from TCI. See id. at 97–98. Although the defendants contend that Mr. Santelices had the freedom to move from SFCC to another cable company and return to SFCC, the independent contractors' agreement (“Santelices Agreement”) indicates that Mr. Santelices was required to personally perform services exclusively for SFCC during the course of each assigned program: “Contractor agrees to complete each assigned program. During the course of the program contractor's services will only be provided to SFCC.” Santelices Agreement ¶ B [D.E. 60, Exh. 3] (Sept. 5, 1998). Mr. Santelices also agreed to “work diligently and with his best efforts to market and otherwise promote the services of SFCC.” Id. ¶ A. Mr. Santelices asserts that contrary to the defendants' position, he did not operate as an independent businessman. According to his deposition testimony, the money Mr. Santelices collected from customers were not for himself, but ultimately for TCI (excluding tips). He did not send out bills or prepare any contracts between himself and a customer. See Santelices Deposition at 227. He also testified that he did not advertise, market, or keep books for his services; nor did he send out correspondence WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 461 of 520 PageID 1097 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 to customers. See *1323 id. at 228. Mr. Santelices also asserts that he did not develop business or jobs on his own that did not originate from SFCC or TCI. See id. at 92. Even if he had, this would likely conflict with the requirement that he work exclusively for SFCC during the course of each assigned program. The defendants argue that Mr. Santelices “spoke with SFCC” about the prices that he would charge for specific installation services, implying that Mr. Santelices had the opportunity to negotiate those prices. But Mr. Santelices contends that he did not have such liberty. He testified that the prices quoted to customers were those provided him by SFCC, see id. at 93–94, and that the supervisor at SFCC provided him with a price list indicating the payment he would receive for each task. See id. at 37. Mr. Santelices claims that he was not at liberty to hire his own helpers as a true independent contractor could. If he needed help on a job, he was required to get permission from SFCC, and provide the name of an installer to call. See id. at 65, 89; Santelices Agreement ¶¶ B, E. If he did use another installer on a job, the company split the job and paid each installer his or her individual share. See id. at 216. Mr. Santelices testified that beginning in September of 1998, he accepted a quality control position with the company. He claims he met with his superiors at SFCC and they agreed to a different compensation structure, a weekly base salary plus compensation for all the jobs he had to “fix.” As part of his new duties, Mr. Santelices testified that his work hours did not change, but his job duties were to check the installation jobs and ensure compliance with TCI's specifications. See id. at 138–39, 146–48, 151. [9] The evidence Mr. Santelices has provided, taken with his deposition testimony, presents a material issue of fact regarding the nature and degree of control exerted over him by SFCC. For purposes of determining economic dependency, the issue of control is only significant when it shows that an individual exerts such control over “a meaningful part” of their business that they stand as “a separate economic entity.” Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1312–13 (5th Cir.1976). Mr. Santelices has presented sufficient evidence to suggest that not all meaningful aspects of his installation “business”— advertising/marketing, customers, prices, and payment arrangements—were controlled by him. The defendants encourage me to adopt the district court's holding in Dole, 729 F.Supp. at 73, which involved similar issues. In Dole, the Secretary of Labor instituted an FLSA suit against a cable television corporation alleging that the corporation violated minimum wage and overtime requirements with regard to its cable installers. After a bench trial, the court found that certain cable television installers working for a cable television corporation were independent contractors to whom the protections of the FLSA did not extend. The instant case, however, is easily distinguishable on its facts from Dole in terms of the amount of control the cable company exerted over the installers for Amerilink. For instance, in Dole, the installers had complete control over the hiring, firing, paying and otherwise directing of helpers. Some of the Amerilink installers employed helpers on a regular basis. The cable company did not enter into those negotiations and arrangements in any way. Id. at 75. The installers also picked out their routes, set their own hours, and created an overall impression of economic independence from the company. There was also no evidence in Dole that the installers were required to maintain *1324 periodic communication with the cable company throughout the workday via two-way radio, or to perform additional duties for the company as Mr. Santelices did. C. MR. SANTELICES AND CWI [10] CWI argues that it had no knowledge of Mr. Santelices prior to this lawsuit, no contact with him while he performed installation services for SFCC, and that it did not hire him in any capacity. CWI also asserts that it did not exercise any control over any aspect of Mr. Santelices' services for SFCC. Mr. Santelices, however, attempts to confer employment status on CWI and demonstrate CWI's control over his cable installation activities by asserting several theories. First, Mr. Santelices argues that CWI produced, provided, and required the billing forms he used. Mr. Santelices relies on his deposition testimony that his supervisor, Juan, to whom Mr. Santelices first reported at the warehouse, provided him with the billing forms. Mr. Santelices has not provided any evidence, however, to link WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 462 of 520 PageID 1098 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 Juan or the forms to CWI, and no such forms have been submitted as evidence. Second, Mr. Santelices argues that the fact that a CWI supervisor gave him a Cable Wiring Inc. shirt demonstrates CWI's control. Mr. Santelices testified that a CWI shirt was given to him by one of his supervisors at SFCC for helping out around the office. He occasionally wore it to work. However, he was never told that he was required to wear the shirt on the job. See Santelices Deposition at 128–30. In fact, at his deposition, Mr. Santelices testified that his prior sworn statement, that he was required to wear the CWI shirt as part of his uniform, was false. Mr. Santelices also testified that the installers were provided with and required to wear a t- shirt which had a drawing of a cable installer and read “cable contractor.” See id. at 169. Thus, the fact that Mr. Santelices was given a CWI shirt by an SFCC supervisor is not probative of CWI's control. Third, Mr. Santelices relies on CWI's provision of identification cards. Mr. Santelices' testimony reveals that the only time he reported to a CWI operated facility was on one occasion, one week after having started work, to obtain his cable installer's photo identification card. At that time, Mr. Santelices met only with a CWI secretary. Further, the card identified Mr. Santelices as a “contractor for TCI.” See id. at 75–76, 85, 221. This solitary visit is likewise not probative of CWI's control. Fourth, Mr. Santelices says that his lack of authority to install additional cable outlets without calling TCI was presumably at the instruction of both of the defendants, and shows CWI's control. Mr. Santelices, however, has again failed to produce any evidence to substantiate CWI's control or direct involvement in obtaining authority to install additional outlets. Further, Mr. Santelices testified that the ultimate authority in this type of situation came from TCI. See id. at 98. Fifth, Mr. Santelices points to the fact that he performed installations according to CWI's technical specifications. But Mr. Santelices has not provided any evidence to support the allegation that he performed installations according to CWI's technical specifications; although there is ample evidence showing that he was required to perform installations according to TCI's technical specifications. See id. at 52, 66, 69. In support of this argument, Mr. Santelices relies on the agreement he executed with SFCC, which required him to “work within the guidelines and rules set down by the company.” Santelices Agreement ¶ D. The reference to “the *1325 company,” as contained in this written document, clearly refers to SFCC. As evidence of an employment relationship, Mr. Santelices also asserts that he worked permanently and exclusively for the defendants in that he was not permitted to work for other cable companies as an installer during his putative employment. Yet Mr. Santelices has failed to present any evidence to substantiate this assertion with regard to CWI. Sixth, Mr. Santelices argues in favor of an employment relationship on the basis that he performed a task allegedly integral to CWI's business. This theory of economic dependency, however, is overbroad and can be easily analogized to the laborer/land owner relationship discussed by the Eleventh Circuit in Aimable, 20 F.3d at 439. In Aimable, a group of migrant and seasonal farm workers suing under the FLSA and the Migrant Seasonal Agricultural Worker Protection Act (“MSAWPA”) attempted to confer joint employment status on both the land owner and the farm labor contractor who hired the workers and maintained direct daily contact with them. Id. at 437. Although the Eleventh Circuit agreed that the labor contractor who made direct decisions regarding the laborers' employment, compensation, and specific tasks assigned, was the laborers' employer, it refused to confer such status on the land owner. See id. at 440. It reasoned that although the land owner's planting decisions, such as which land parcels to harvest, the time for harvesting, number of times to harvest, ultimately affected the exact amount of work available, this abstract type of control, which only indirectly affected the workers, was not the type of direct control envisioned by the FLSA or the MSAWPA. See id. at 440–41. The landowner's business was to grow and sell vegetables. The labor contractor's job was to provide a sufficient number of laborers to harvest the vegetables. The Eleventh Circuit explained that [c]ontrol arises, we believe, when the [owner] goes beyond general instructions, such as how many acres to pick in a given day, and begins to assign specific tasks, to assign specific workers, or to take an overly WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 463 of 520 PageID 1099 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 active role in the oversight of the work. Id. at 441. Mr. Santelices has failed to provide any evidence to show CWI's direct or daily control over his cable installation work. See Santelices Deposition at 80. Finally, Mr. Santelices argues that he had little opportunity to realize a profit because he was actually marketing for CWI. Mr. Santelices was required to post a magnetic sign on his truck which read “CABLE WIRING INC. COMMUNICATIONS CONTRACTOR” and included CWI's phone and license numbers. Mr. Santelices was required to pay a refundable $40 security deposit to the SFCC office for his use of the sign on his truck, which he understood was necessary to avoid being cited by the City. See id. at 166–68. CWI's requirement that Mr. Santelices display the sign is relevant to CWI's purported control over Mr. Santelices. This evidence, though, is only one isolated factor, and it fails to tip the scale in favor of an employment relationship when the “circumstances of the whole activity” are considered. The determination of whether an employer-employee relationship exists does not depend on “isolated factors but rather upon the circumstances of the whole activity.” Rutherford Food, 331 U.S. at 730, 67 S.Ct. 1473. Aside from the use of this sign, Mr. Santelices has not submitted any other evidence showing Mr. Santelices' purported economic dependency on CWI. In sum, with regard to CWI's purported control, Mr. Santelices has not provided *1326 sufficient evidence showing either “specific indicia of control” by CWI over his cable installation services, or a sufficient link between CWI and SFCC's warehouse or any of the activities that originated from there. See Aimable, 20 F.3d at 440; Antenor, 88 F.3d at 933–34. D. CWI AS JOINT EMPLOYER [11] [12] Mr. Santelices also argues that CWI acted as his joint employer, meaning that he was economically dependent on both CWI and SFCC during the alleged period of employment. See 29 C.F.R. § 791.2(a) (“A single individual may stand in the relation of an employee to two or more employers at the same time under the FLSA ...”). To determine whether joint employment exists, courts consider several relevant factors, including the putative employer's nature and degree of control of the workers; the degree of supervision; the direct or indirect of the work; the power to determine the pay rates of methods of payment; the right to directly or indirectly hire, fire, or modify the employment conditions of the workers; the preparation of payroll and payment of wages; the ownership of facilities where work occurred; whether the worker performed a line job integral to the end product; and relative investment in equipment and facilities. See Antenor, 88 F.3d at 932 (citing Aimable, 20 F.3d at 440–45). Consideration of these factors, in light of the evidence presented, fails to show the existence of a joint employment relationship. Mr. Santelices contends that CWI engaged in the same nature and degree of control found to be characteristic of a joint employer in Antenor, 88 F.3d 925. A thorough reading of Antenor, however, shows that Mr. Santelices' reliance is misplaced. Antenor (which is factually similar to Aimable, 20 F.3d at 434, discussed above), involved a group of seasonal agricultural workers who sued the landowners and labor contractor to enforce wage requirements under the FLSA and MSAWPA. The workers conferred joint employer status on both the labor contractor and the owners by showing substantial rather than “de minimis” oversight by the owners. See Antenor, 88 F.3d at 935. Concluding that the owners and labor contractors acted as the workers' dual employer, the Eleventh Circuit relied on the workers' showing that the owners actively oversaw and directly intervened in their work on a daily basis. See id. The owners decided how many workers were needed, and determined the precise moment when picking would begin. The workers also proved that the owners were free to delay or stop the workers, and did in fact order a work stoppage to verify the workers' compliance with new immigration laws that went into effect. See id. at 934 n. 12. The owners also had the ability to, and did in fact, assign work to specific workers, and the owners as well as their staff would walk the fields each day and make sure the work was done properly; if there was a problem, they would bring it to the workers' attention. See id. at 935. The Eleventh Circuit found this type of supervision more substantial than the ‘infrequent assertions of minimal oversight’ by the grower in Aimable, 20 F.3d at 441, where the grower's employees, “except on rare occasions, left supervision and oversight of the [the farmworkers] entirely to [the contractor] and his crew” WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 464 of 520 PageID 1100 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 and ‘rarely provided any direction to [the farmworkers'] work.’ 88 F.3d at 935. The owners also monitored the workers' job qualifications rather than relying on the labor contractor to do so, and deducted monies from the labor contractor's compensation in order to purchase worker's compensation insurance for the workers— naming themselves as the policy holders. See id. at 935–36. *1327 Mr. Santelices has not provided any proof of control or supervision by CWI remotely resembling the substantial control and supervision characteristic of the growers in Antenor. Mr. Santelices simply argues that CWI inspected his cable installation work. Mr. Santelices' only evidence, however, is his testimony that his installation jobs were supposed to be done according to TCI specifications. See Santelices Deposition at 70. When asked whether anyone other than TCI inspected his work for compliance with the TCI manual, Mr. Santelices responded that “[w]e had also—Cable Wiring had a quality control person, too, that would also check jobs.” Although Mr. Santelices could not recall this person's name, he indicates that it was “more Cable Wiring checking than TCI.” Assuming that Mr. Santelices was actually referring to CWI rather than “cable wiring” in the generic sense, Mr. Santelices was unable to answer the extent of the quality control person's oversight. In response to a query as to the number of jobs that were inspected, Mr. Santelices admitted, “I couldn't tell you.” He speculated that “probably ten jobs out of the week from each person would be checked” by both TCI and Cable Wiring. Id. at 70 Even if this speculative testimony were admissible, see Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 175–76 (5th Cir.1990) (admissibility of evidence on summary judgment is subject to the same rules that govern admissibility of evidence at trial), it represents the full extent of proof presented by Mr. Santelices on CWI's purported oversight activities. Mr. Santelices has not provided any evidence as to what CWI did when it purportedly checked the work. There is no evidence that CWI checked the work on a daily basis, gave work commands or otherwise intervened in the performance of the installers' duties, on a daily basis or anytime. Thus, even taken in the light most favorable to Mr. Santelices, evidence of this type of minimal oversight is more akin to that found in Aimable, 20 F.3d at 441, where no dual employment was found, than that in Antenor, 88 F.3d at 933–38. Mr. Santelices also relies on language from the CWI– SFCC Agreement to demonstrate CWI's control over SFCC's hiring decisions. For example, the Agreement provides that CWI would, at SFCC's written request and expense, assist with payroll. See CWI–SFCC Agreement ¶ 9. The Agreement also requires SFCC's employees to be neatly dressed and polite. See id. ¶ 10. Assuming CWI retained the right to such control, however, these technical contractual concepts alone do not satisfy the “economic realities” test. See, e.g., Goldberg, 366 U.S. at 33, 81 S.Ct. 933 (citing Silk, 331 U.S. at 713, 67 S.Ct. 1463; Rutherford Food Corp., 331 U.S. at 729, 67 S.Ct. 1473). As for Mr. Santelices' allegation that CWI assisted SFCC prepare its payroll and contributed to the wages it paid, Mr. Santelices again, has not presented any evidence to substantiate this claim. Although CWI may have offered, at SFCC's written request, direction and expense, to assist SFCC by providing its payroll services, see CWI– SFCC Agreement ¶ 9, Mr. Santelices has not shown that CWI actually undertook to provide these services or was otherwise involved in the actual preparation of payroll and wages. As for Mr. Santelices' assertion that CWI determined the manner of payment to SFCC to be piece- rate, without any factual proof, I fail to see how CWI's manner of payment to SFCC controlled SFCC's method of compensation to him. Examination of the foregoing factors, in light of the totality of the evidence presented, demonstrates that Mr. Santelices may have been dependent upon SFCC *1328 during the alleged period of employment. I cannot conclude, however, that Mr. Santelices was economically dependent upon CWI. Accordingly, CWI's motion for summary judgment [D.E. 57] is GRANTED. V. MR. SANTELICES' PROOF OF OVERTIME HOURS WORKED [13] Assuming that Mr. Santelices was SFCC's employee, Mr. Santelices must satisfy his burden of proof by sufficiently demonstrating that he is entitled to overtime compensation. Under Federal Rule of Civil Procedure 56(c), Mr. Santelices, as the non-movant, has the burden at summary judgment “to come forward with specific WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 465 of 520 PageID 1101 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 13 facts on each essential element of his claims showing that there is a genuine issue for trial such that a reasonable jury could find in his favor.” Matsushita Electric Indus. Co., 475 U.S. at 586–87, 106 S.Ct. 1348. As previously noted, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position” is insufficient, “there must be evidence on which the jury could reasonably find for the plaintiff.” Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505. It is not the function of the court, however, to decide issues of material fact, and the court must avoid weighing conflicting evidence and making credibility determinations. See id. at 249, 255, 106 S.Ct. 2505. [14] It is well-established that an employee who brings suit under § 16(b) of the FLSA for unpaid minimum wages or unpaid overtime compensation and liquidated damages has the initial burden of proving that he performed work for which he was improperly compensated. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687–88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C.Cir.1972). In Mt. Clemens, the Supreme Court established a shifting burden of proof applicable when the employee is unable to secure accurate records showing the precise extent of uncompensated work. The Supreme Court held that the employee has carried out his burden of proof if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. 328 U.S. at 687–88, 66 S.Ct. 1187. In establishing this shifting burden of proof, the Supreme Court also stated that here we are assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer ... It is enough under these circumstances if there is a reasonable inference as to the extent of the damages. Id. at 688, 66 S.Ct. 1187 (emphasis added). Thus, although the Supreme Court established a standard for awarding damages when the evidence of damages is inexact or imprecise, it did not eliminate the employee's burden to prove that he has in fact performed work for which he was not paid. Although Mr. Santelices is unable to demonstrate the exact amount of hours for which he was uncompensated, this does not defeat his claim at this stage. His testimony was that he worked more than *1329 forty hours, and it is the duty of the factfinder to draw all reasonable and just inferences in his favor. See, e.g., Brock v. Seto, 790 F.2d 1446, 1448 (9th Cir.1986) (reversing the district court's finding that the plaintiffs' evidence of damages was too speculative and stating that “Mt. Clemens Pottery leaves no doubt that an award of back wages will not be barred for imprecision where it arises from the employer's failure to keep records as required by the FLSA”). Mr. Santelices makes the following argument based on his deposition testimony to support his burden of proof under Mt. Clemens: Santelices testified that he worked ‘on an average basis, it was more than forty [hours].’ Santelices, p. 157:6– 8, 159:3–8. He was required to and did arrive at work by 6:30 a.m. Id., pp. 112:16–19; 153:19–21. He took about fifteen (15) minutes for lunch. Id., p. 233:20–23. He would drive home, spend 20 minutes or so changing and then watched Jeopardy. Id., p. 230:8–20. Jeopardy began at 7:30 p.m. Id., 8–20. ‘[E]very day I was getting home after five.’ Id., p. 159:6–7. He worked six (6) days a week. Id., p. 153:6–7. Plaintiff's Response at 16 [D.E. 70] (Feb. 10, 2000). Based upon this testimony, Mr. Santelices contends that he has sufficiently demonstrated that he worked “10 (or WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 466 of 520 PageID 1102 Santelices v. Cable Wiring, 147 F.Supp.2d 1313 (2001) 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 14 more) hours per day, 6 days per week.” Id. A reasonable jury hearing this testimony could conclude that Mr. Santelices worked overtime hours for which he was not compensated. Therefore, a material issue of fact exists as to whether Mr. Santelices has proven that he worked overtime hours for which he was not compensated. In sum, I am unable to say that as a matter of law Mr. Santelices is not entitled to present this evidence to a finder of fact so that reasonable inferences may be drawn. Instead, the burden of imprecision must fall on the employer, whose legal obligation it was to keep accurate records, and no such records have been provided. See Mt. Clemens, 328 U.S. at 688, 66 S.Ct. 1187 (“In such a case ‘it would be a perversion of the fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.’ ”) (quoting Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931)). VI. CONCLUSION Based on the foregoing analysis, and having considered the evidence presented in the light most favorable to Mr. Santelices, I find that Mr. Santelices has failed to present sufficient evidence to defeat CWI's motion for summary judgment, and the motion [D.E. 57] is therefore GRANTED. Material issues of fact exist, however, with regard to the nature and extent of control SFCC exerted over Mr. Santelices while he performed cable installation during the alleged period of employment and regarding the hours for which Mr. Santelices has not been compensated. Accordingly, SFCC's motion for summary judgment [D.E. 60] is DENIED. All Citations 147 F.Supp.2d 1313, 143 Lab.Cas. P 34,269, 6 Wage & Hour Cas.2d (BNA) 1853 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 467 of 520 PageID 1103 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Dynamex Operations W. v. Superior Court, Cal., April 30, 2018 721 F.3d 1308 United States Court of Appeals, Eleventh Circuit. Michael SCANTLAND, Daniel Lawrence, individually, and on behalf of all others similarly situated, et al., Plaintiffs–Appellants, v. JEFFRY KNIGHT, INC., d.b.a. Knight Enterprises, Jeffry D. Knight, Defendants–Appellees. No. 12–12614. | July 16, 2013. Synopsis Background: Current and former technicians who installed and repaired cable, Internet, and digital phone services for an installation and repair service contractor brought collective action against the contractor for violations of the Fair Labor Standards Act's (FLSA) overtime and minimum wage provisions. The United States District Court for the Middle District of Florida, No. 8:09-cv-01985-EAK-TBM, Elizabeth A. Kovachevich, J., 2012 WL 1080361, entered summary judgment for the contractor. Technicians appealed. [Holding:] The Court of Appeals, Anderson, Circuit Judge, held that fact issues existed relating to question of whether technicians were “employees” covered by the FLSA. Affirmed in part, reversed in part, and remanded. West Headnotes (9) [1] Federal Courts Summary judgment A court of appeals reviews an appeal from a summary judgment de novo and applies the same legal standards that control the district court. 3 Cases that cite this headnote [2] Federal Courts Wages, hours, and working conditions A determination of employment status under the FLSA is a question of law that Court of Appeals reviews de novo. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 3 Cases that cite this headnote [3] Labor and Employment Employment relationship The definitions of “employee” and “employer” under the Fair Labor Standards Act (FLSA) are intended to be comprehensive enough to include working relationships which, prior to this Act, were not deemed to fall within an employer-employee category. Fair Labor Standards Act of 1938, § 3, 29 U.S.C.A. § 203. 6 Cases that cite this headnote [4] Labor and Employment Independent Contractors The Fair Labor Standards Act's (FLSA) broad definitions of “employee” and “employer” do not bring independent contractors within the FLSA's ambit. Fair Labor Standards Act of 1938, § 3, 29 U.S.C.A. § 203. 16 Cases that cite this headnote [5] Labor and Employment Employment relationship Labor and Employment Independent Contractors To determine whether an individual falls into the category of covered “employee” or exempted “independent contractor” under the FLSA, courts look to the economic Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 468 of 520 PageID 1104 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 reality of the relationship between the alleged employee and alleged employer and whether that relationship demonstrates dependence; this inquiry is not governed by the label put on the relationship by the parties or the contract controlling that relationship, but rather focuses on whether the work done, in its essence, follows the usual path of an employee. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 74 Cases that cite this headnote [6] Labor and Employment Independent Contractors Ultimately, in considering economic dependence in determining whether an individual falls into the category of covered “employee” or exempted “independent contractor” under the FLSA, courts focus on whether an individual is in business for himself or is dependent upon finding employment in the business of others. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 58 Cases that cite this headnote [7] Federal Civil Procedure Fair Labor Standards Act cases; wages and hours regulations Genuine issues of material fact existed relating to question of whether technicians who installed and repaired cable, Internet, and digital phone services for an installation and repair service contractor fell into the category of covered “employees” or exempted “independent contractors” under the FLSA, precluding summary judgment in the technicians' collective action against the service contractor for violations of FLSA's overtime and minimum wage provisions. Fair Labor Standards Act of 1938, §§ 6, 7, 29 U.S.C.A. §§ 206, 207. 11 Cases that cite this headnote [8] Labor and Employment Independent Contractors Control is only significant in determining whether an individual falls into the category of covered “employee” or exempted “independent contractor” under the FLSA when it shows an individual exerts such a control over a meaningful part of the business that she stands as a separate economic entity. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 34 Cases that cite this headnote [9] Federal Courts Preliminary proceedings A court of appeals reviews a district court's decision made in the course of managing its docket for an abuse of discretion. 1 Cases that cite this headnote Attorneys and Law Firms *1310 Harold L. Lichten, Shannon Liss–Riordan, Ian O. Russell, Lichten & Liss–Riordan, PC, Boston, MA, James A. Staack, Gray Cors, Staack, Simms & Hernandez, PA, Clearwater, FL, for Plaintiffs–Appellants. Luis Antonio Cabassa, Steven G. Wenzel, Wenzel, Fenton, Cabassa, PA, Tampa, FL, for Defendants– Appellees. Dean Romhilt, U.S. Dept. of Labor, Office of the Sol., Washington, DC, for U.S. Dept. of Labor, Amicus Curiae. Kristi Lee Graunke, Southern Poverty Law Ctr., Atlanta, GA, for Interfaith Worker Justice, et al., Amici Curiae. Appeal from the United States District Court for the Middle District of Florida. Before CARNES, HULL and ANDERSON, Circuit Judges. Opinion ANDERSON, Circuit Judge: Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 469 of 520 PageID 1105 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 The plaintiffs in this conditionally certified collective action are current and former technicians who installed and repaired cable, internet, and digital phone services for defendant Jeffry Knight, Inc. (“Knight”), an installation and repair service contractor for the cable company Bright House Networks (“BHN”) in Florida. Plaintiffs appeal the district court's order on summary judgment holding that they were “independent contractors”—not “employees”—and therefore not entitled to overtime and minimum wage protections afforded by the Fair Labor Standards Act (“FLSA” or “Act”), 29 U.S.C. § 201 et seq. After careful review of the record, and with the benefit of oral argument, we conclude that the district court erred in this determination. I. STANDARD OF REVIEW [1] This Court reviews an appeal from a summary judgment de novo and applies the same legal standards that control the district court. RJR Nabisco, Inc. v. United States, 955 F.2d 1457, 1459 (11th Cir.1992). Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The court must view all evidence most favorably toward the nonmoving party, and all justifiable inferences are to be drawn in the nonmoving party's favor.” Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990). [2] A determination of employment status under the FLSA is a question of law reviewed de novo. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). The underlying facts and reasonable inferences therefrom are viewed in the light *1311 most favorable to plaintiffs, the non- moving party. Id. II. THE FLSA Congress passed the FLSA “to lessen, so far as seemed then practicable, the distribution in commerce of goods produced under subnormal labor conditions.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 727, 67 S.Ct. 1473, 1475, 91 L.Ed. 1772 (1947). The FLSA's overtime and minimum wage protections were the “method chosen to free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well-being of workers.” Id. These protections, however, extend only to “employees,” a term given rough outline by a series of broad definitions in the Act. 29 U.S.C. §§ 206, 207. An “employee” is “any individual employed by an employer.” Id. § 203(e)(1). An “employer” “includes any person acting directly or indirectly in the interest of an employer in relation to an employee.” Id. § 203(d). The term “employ” “includes to suffer or permit to work.” Id. § 203(g). [3] [4] These definitions are intended to be “comprehensive enough” to include “working relationships, which prior to this Act, were not deemed to fall within an employer-employee category.” Rutherford Food, 331 U.S. at 729, 67 S.Ct. at 1476 (quoting Walling v. Portland Terminal Co., 330 U.S. 148, 150–51, 67 S.Ct. 639, 640, 91 L.Ed. 809 (1947)). These “broad” definitions do not, however, bring “independent contractors” within the FLSA's ambit. See id. at 728–29, 67 S.Ct. at 1476. [5] To determine whether an individual falls into the category of covered “employee” or exempted “independent contractor,” courts look to the “economic reality” of the relationship between the alleged employee and alleged employer and whether that relationship demonstrates dependence. See Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 1550, 91 L.Ed. 1947 (1947) ( “[E]mployees are those who as a matter of economic reality are dependent upon the business to which they render service”); Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936, 6 L.Ed.2d 100 (1961) (referencing “ ‘economic reality’ rather than ‘technical concepts' ” as the “test of employment”); Aimable v. Long & Scott Farms, Inc., 20 F.3d 434, 439 (11th Cir.1994) (“To determine whether an employer/employee relationship exists for purposes of federal welfare legislation, we look ... to the ‘economic reality’ of all the circumstances concerning whether the putative employee is economically dependent upon the alleged employer.”). This inquiry is not governed by the “label” put on the relationship by the parties or the contract controlling that relationship, but rather focuses on whether “the work done, in its essence, follows the usual path of an employee.” Rutherford Food, 331 U.S. at 729, 67 S.Ct. at 1476. “[P]utting on an ‘independent contractor’ label does not take the worker from the protection of the Act.” Id.; see also Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1312 (5th Cir.1976) (“It is not significant how one ‘could have’ acted under WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 470 of 520 PageID 1106 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 the contract terms. The controlling economic realities are reflected by the way one actually acts.”). 1 1 The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). [6] Courts have applied various multifactor tests to guide the “economic reality” inquiry. Both parties in the instant appeal rely on the following six factors, which *1312 many courts have used as guides in applying the economic reality test: (1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers; (4) whether the service rendered requires a special skill; (5) the degree of permanency and duration of the working relationship; (6) the extent to which the service rendered is an integral part of the alleged employer's business. 2 2 The first five factors derive from Usery, the sixth from Rutherford Food. As the U.S. District Court for the Southern District of Florida explained in another case examining the employee-independent contractor issue in the context of the cable installation industry: No one factor is controlling, nor is the list exhaustive. The factors simply summarize the matters deemed relevant by the Supreme Court in Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947), United States v. Silk, 331 U.S. 704, 716, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947), and Rutherford Food, 331 U.S. at 729, 67 S.Ct. 1473, to help gauge the degree of dependence of an alleged employee on the business with which they are connected. The weight of each factor depends on the light it sheds on the putative employee's dependence on the alleged employer, which in turn depends on the facts of the case. See Antenor, 88 F.3d at 933. Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1319 (S.D.Fla.2001). While these factors serve as guides, the overarching focus of the inquiry is economic dependence: No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor—economic dependence. The ... tests are aids— tools to be used to gauge the degree of dependence of alleged employees on the business with which they are connected. It is dependence that indicates employee status. Each test must be applied with that ultimate notion in mind. More importantly, the final and determinative question must be whether the total of the testing establishes the personnel are so dependent upon the business with which they are connected that they come within the protection of FLSA or are sufficiently independent to lie outside its ambit. Usery, 527 F.2d at 1311–12 (emphasis in original) (citations omitted). Ultimately, in considering economic dependence, the court focuses on whether an individual is “in business for himself” or is “dependent upon finding employment in the business of others.” Mednick v. Albert Enters., Inc., 508 F.2d 297, 301–02 (5th Cir.1975). 3 3 See Bonner, 661 F.2d at 1209. III. DISCUSSION [7] Because both parties apply the six-factor test set out above, and because we agree that those factors are relevant to determining whether an individual is an employee or independent contractor, we apply them here. We note, however, that these six factors are not exclusive and no WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 471 of 520 PageID 1107 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 single factor is dominant. We view the subsidiary facts relevant to each factor through the lens of “economic dependence” and whether they are more analogous to the “usual path” of an employee or an independent contractor. And of course, in the summary judgment posture of this case, we take reasonable inferences in favor *1313 of the plaintiffs in determining the facts underlying each factor in the analysis. A. Control [8] The first factor considers the nature and degree of the alleged employer's control as to the manner in which the work is to be performed. “Control is only significant when it shows an individual exerts such a control over a meaningful part of the business that she stands as a separate economic entity.” Usery, 527 F.2d at 1312–13. The facts, viewed in the light most favorable to plaintiffs, indicate that Knight exercised significant control over plaintiffs such that they did not stand as “separate economic entities” who were “in business for themselves.” Technicians were required to report to a Knight facility by 7:00 to 7:15 each morning. Technicians would turn in equipment from the previous day and submit their work orders, which included the billing codes that determined their pay for particular jobs. These billing codes were set by Knight, and managers could unilaterally change the codes that technicians reported, thereby reducing a technician's pay. 4 Plaintiffs would also receive a “route” detailing the current day's work orders, which were generally assigned in two-hour timeslots. Though plaintiffs' “Independent Contractor Service Agreements” provided that they could “decline any work assignments,” plaintiffs testified that they could not reject a route or a work order within their route without threat of termination or being refused work in the following days. Thus, while a technician might consider a specific route or work order unprofitable, because, for example, it was low-paying or far away, plaintiffs had no power to decline the assignment. 5 Technicians *1314 also might be required to attend quality control meetings and classes on new equipment or participate in a monthly equipment inventory conducted by BHN, which required technicians to unload their trucks and account for all BHN equipment. This morning routine could last up to two hours. Plaintiff Sperry testified that he had to arrive by 5:30 a.m. in order to make it to his first job assignment on time. 4 BHN provided Knight billing codes that determined what Knight was paid for completing a particular job. Knight then adjusted those billing codes for use by technicians to determine what a technician would be paid for completing a particular job. This resulted in a 60/40, 55/45, or 50/50 split of the proceeds of a job, with the unequal splits favoring Knight. 5 Certain jobs are more profitable because of the billing codes assigned to them, how far away they are (and thus how much gas must be used to reach them), or how quick or easy they are to complete. For example, apartments might be easier than houses because they are wired for easy cable hook-ups. Thus, even though a job at an apartment complex could take significantly less time than the same job at a house, technicians would be paid the same amount for both jobs. The issue of whether technicians were able to choose preferred work orders and areas or reject unwanted ones is strongly contested by the parties. Plaintiffs' testimony indicates that some technicians were able to select particular areas or work orders. Plaintiff Scantland testified in his deposition that, as a “lead” technician, he let his best technicians cherry pick the work orders they wanted from others' routes. Plaintiff Zapata's deposition testimony confirmed this practice. He testified that his route was often cherry picked by the time he arrived at work. Plaintiffs Zapata and Hauser testified that their geographic preferences were usually granted. On the other hand, plaintiffs' testimony clearly asserts that they were not free to decline particular work orders, as claimed by Knight. Plaintiffs Zapata and Sperry testified that when they tried to decline unpleasant jobs, they were threatened with being terminated or not receiving work the next day. Plaintiff Downs testified that it was known that if a technician turned down a route he could be given a difficult, low-paying job, such as digging to lay lines, or no work at all the following day. Plaintiff Hauser testified that he had been denied work for a couple of days after he refused an additional assignment toward the end of his workday. Hauser also testified that his preferred area was taken away from him after he declined a particular assignment. Technicians could transfer work orders among themselves and pair up to complete their work; WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 472 of 520 PageID 1108 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 when they did so, they determined among themselves how to divide their pay. During occasional downtime, technicians could request additional jobs; they could also be required to assist other technicians or be assigned additional jobs that they could not refuse. Technicians might be required to stay on the job until all the technicians in their area had completed their work; they could also be called back to jobs long after completing them to address problems. Plaintiffs could “upsell” by convincing customers to add additional BHN services, but those orders had to be approved by Knight. Plaintiffs could not sell non-BHN services to customers and could not work for other companies, either because they were told they could not do so or because the schedule Knight imposed prevented them from doing so. Plaintiffs could, according to their contract, employ others to help them, but any such “employees” had to be technicians already engaged by Knight, and were therefore bound by Knight's policies. Plaintiffs were subject to meaningful supervision and monitoring by Knight. Technicians routinely communicated with dispatch during the day and were required to log in and out of Work Force Management —a service on their cellular phones that they paid for via payroll deductions—to indicate when they arrived on a job, when they completed a job, and what their estimated time of arrival was for their next job. 6 6 It does not appear, however, that Work Force Management would provide an accurate picture of all technicians' schedules. Plaintiff Downs testified that his supervisor told him to log in and out of Work Force according to time slots, not actual arrival times, so that it would appear that they were on schedule. Plaintiff Hauser testified that he would postpone logging out of Work Force when he completed a job in order to avoid being assigned more work. Knight or BHN also conducted site checks of technicians' work, and Knight tracked technicians' “quality control discrepancy rate.” Technicians with consistent quality control issues could be given “remedial training” at a “mock house” or they could be terminated. An installation manager also might counsel a technician regarding his physical appearance or the appearance of his vehicle. Knight levied uncontestable fines called “chargebacks” for not meeting specifications, not using Work Force correctly, misplacing inventory, or being late to a job. Typically, $100 would be deducted from the technician's pay for chargebacks on residential jobs and $150 for commercial jobs. Plaintiff Downs testified that chargebacks could mount up to the point where they surpassed the amount of money a technician could earn on a job. Technicians could also be “downloaded,” i.e., fired, for consistently misbilling, fraudulently billing, stealing, having a bad attitude, having consistently low quality control ratings, and being rude to customers, other technicians, or Knight employees. Knight's Jill Williams testified that she and another installation manager had downloaded more than one hundred technicians. Plaintiff technicians worked five to seven days a week; some were required to work six days a week and sometimes seven *1315 days a week because of a requirement that they work rotating Sundays. Plaintiffs regularly worked more than forty hours a week. 7 Technicians either had to inform their supervisors that they would be taking time off or request time off in advance, sometimes in writing. 7 For example, Plaintiff Sperry testified that he usually worked sixty to seventy-five hours a week and sometimes as many as eighty hours a week. Plaintiff Zapata testified that he usually worked fifty to sixty hours a week and sometimes up to seventy-five to eighty hours. Plaintiff Downs testified that he frequently worked seventy-hour weeks. In sum, Knight controlled what jobs plaintiffs did, how much they were paid, how many hours they worked, how many days they worked, their daily work schedule, whether they could work for others, whether they could earn additional income from customers, and closely monitored the quality of their work. Plaintiffs could not bid for jobs or negotiate the prices for jobs. Their ability to hire and manage others was illusory. This alleged control strongly suggests that the plaintiffs were economically dependent upon Knight. Knight vigorously disputes many of the facts relied upon by plaintiffs. We are, however, bound at this stage of the litigation to view the facts in the light most favorable to plaintiffs. Knight also disputes that particular WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 473 of 520 PageID 1109 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 alleged facts indicate that it controlled plaintiffs. For example, Knight claims that the specifications technicians were required to follow and the periodic communication they had to maintain with Knight were consistent with duties required of independent contractors. 8 We agree that meeting clients' specifications and keeping clients informed of job progress is consistent with the “usual path” of an independent contractor. But the specific facts alleged by plaintiffs diverge from the “usual path.” Plaintiffs testified that the manner of their work was tightly regulated by Knight and left them with no discretion in how to approach a particular job. 9 Furthermore, the communication that plaintiffs assert they were required to maintain with Knight was constant, not periodic. Knight also argues that its quality control measures cannot be “the single fact that ... convert[s] an otherwise independent relationship into one of employment.” It is not. Here, Knight's quality control measures are just one of numerous indicia of control that together strongly suggest an employee-employer relationship. 8 See Herman v. Mid–Atlantic Installation Servs., Inc., 164 F.Supp.2d 667, 672–73 (D.Md.2000), aff'd sub nom. Chao v. Mid–Atlantic Installation Servs., Inc., 16 Fed.Appx. 104 (4th Cir.2001) (“It is in the nature of a contract that the contractor promises to deliver the performance bargained for by the client. For example, a builder will build a building according to the specifications of an architect. That does not make the builder an employee. A painter will paint a house the colors dictated by the homeowner. That does not make the painter an employee. In short, requiring a contractor to meet the client's technical specifications is not the type of ‘control’ which bestows ‘employee’ status on the contractor.”). 9 See Lang v. DirectTV, Inc., 801 F.Supp.2d 532, 537– 38 (E.D.La.2011) (concluding that a material issue of fact existed regarding whether satellite company's instructions to installation technicians “went beyond providing mere technical specifications”). We also note that Knight was able to control the manner in which technicians performed their work via its training regimens. As will be discussed below, most technicians were inexperienced in the trade and were trained by Knight on how to meet detailed specifications. Knight further argues that the chargebacks it levied against technicians were consistent with a contractual relationship in which money would be withheld when work was not done correctly. Knight relies on Herman v. Mid–Atlantic Installation *1316 Services, Inc., where the district court determined that chargebacks were akin to “punch lists” in construction contracts where “a certain percentage is generally withheld from each payment pending complete performance of the contract.” 164 F.Supp.2d 667, 673 (D.Md.2000), aff'd sub nom. Chao v. Mid–Atlantic Installation Servs., Inc., 16 Fed.Appx. 104 (4th Cir.2001). We view the chargebacks differently. Such fines can also be levied against employees for shortages caused by loss or breakage. Furthermore, when an independent contractor fails to follow specifications, the usual penalty is the actual cost of damages, whereas here the chargebacks were flat charges that could exceed the actual value of the job at issue. Thus, the chargebacks here seem more consistent with disciplining employees. Though the chargebacks do not strongly indicate employee status, they also do not support a finding of independent contractor status. 10 10 We also note that the record indicates that technicians already had to provide Knight with a separate warranty retainer that, per the parties' contract, ensured that technicians' work would be free from defects for a set period. Knight also argues that its quality control measures and regulation of schedules stemmed from “the nature of the business” and are therefore not the type of control that is relevant to the economic dependence inquiry. We disagree. The economic reality inquiry requires us to examine the nature and degree of the alleged employer's control, not why the alleged employer exercised such control. Business needs cannot immunize employers from the FLSA's requirements. If the nature of a business requires a company to exert control over workers to the extent that Knight has allegedly done, then that company must hire employees, not independent contractors. Finally, Knight points this Court to unpublished opinions finding that an installation contractor such as Knight did not exercise control over technicians. We find those non- binding decisions unpersuasive in light of the specific facts of this case. The facts of this case more closely resemble cases in which courts have found installation technicians to be employees. 11 WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 474 of 520 PageID 1110 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 11 For example, in Santelices, the district court denied a cable installation contractor's motion for summary judgment because of the existence of a material issue of fact with regard to the control factor. Santelices, 147 F.Supp.2d at 1319. The district court cited several “specific indicia of control” relevant here: the technician was required to report to a warehouse at a specific time each morning, he could not turn down work, he had to adhere to specific timeframes, he had to “maintain periodic communication with the company” via a two-way radio that was paid for via paycheck deductions, his ability to earn extra money was limited because scheduled work took precedence and any additional work had to be approved, he did not have the ability to negotiate the prices charged for his services, and he was “not at liberty to hire his own helpers.” Id. at 1321–23. Assuming factual inferences in favor of plaintiffs, this factor points strongly toward employee status. B. Opportunity for Profit or Loss The second factor considers the alleged employee's opportunity for profit or loss depending upon his managerial skill. The facts, taken in the light most favorable to plaintiffs, indicate that plaintiffs' opportunity for profit or loss depended more upon Knight's provision of work orders and technicians' own technical skill and efficiency than their managerial skill. Plaintiffs' opportunity for profit was largely limited to their ability to complete more jobs than assigned, which is analogous to an employee's ability to take on overtime work or an efficient piece-rate *1317 worker's ability to produce more pieces. An individual's ability to earn more by being more technically proficient is unrelated to an individual's ability to earn or lose profit via his managerial skill, and it does not indicate that he operates his own business. As the Supreme Court has explained, a job whose profits are based on efficiency is “more like piecework than an enterprise that actually depend[s] for success upon the initiative, judgment or foresight of the typical independent contractor.” Rutherford Food, 331 U.S. at 730, 67 S.Ct. at 1477. Technicians could not negotiate or otherwise determine the rates they were paid for jobs. In fact, the billing codes they submitted were subject to unilateral change by Knight. They were also subjected to uncontestable chargebacks that could wipe out their earnings from a single job. 12 Knight's argument that plaintiffs could control losses by avoiding chargebacks is unpersuasive. Chargebacks relate to the quality of a technician's skill, not his managerial or entrepreneurial prowess. 12 See Lang, 801 F.Supp.2d at 539 (“Plaintiffs' ability to influence their profits and losses is also impacted by the extent to which defendants could deduct fees from plaintiffs' pay. This is particularly true if the defendants deducted fees in excess of the value of the jobs performed, and plaintiffs had no means of recourse to dispute the deductions.”). Plaintiffs' ability to earn additional income through their own initiative was limited. Though plaintiffs could “upsell,” any jobs added to a work order by a technician had to be approved by Knight, and plaintiffs testified that the extra income was minimal and often not worth the additional effort. Plaintiffs could not sell non-BHN services to customers, nor work for other companies because of either a flat prohibition or because the schedules demanded by Knight prevented them from pursuing other work. Plaintiffs were able to exert some control over their opportunity for profits by pairing up to complete jobs and trading jobs among each other, but this ability was ultimately limited by the number and types of jobs Knight assigned them and whether Knight's assigned schedule permitted them time to do so. Furthermore, as previously discussed, though the parties' contract provided that technicians could hire helpers, this authority was illusory. Any helpers were required to be contracted with Knight as technicians, thus precluding the exercise of any real managerial skill over such helpers. Assuming factual inferences in favor of plaintiffs, and in light of the minimal opportunity for profit (and that being little different from the usual path of an employee), this factor suggests economic dependence, and points strongly toward employee status. C. Investment in Equipment or Materials The third factor considers the alleged employee's investment in equipment or materials required for his task, or his employment of workers. This factor favors independent contractor status, although it does so only weakly. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 475 of 520 PageID 1111 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 As previously discussed, technicians' ability to employ workers was illusory. As regards investment in equipment and materials, Knight provides, via BHN, the hardware that is actually installed in customers' homes and businesses, such as cable boxes, DVRs, and cable modems. Technicians are required to have vehicles, *1318 auto insurance, tools and safety equipment, and commercial general liability insurance. However, in light of the fact that most technicians will already own a vehicle suitable for the work and that many technicians purchased specialty tools from Knight directly via payroll withholdings, there seems to be little need for significant independent capital and very little difference from an employee's wages being increased in order to pay for tools and equipment. Furthermore, even though a technician who initially bought his tools from Knight and paid for them via withholdings has some economic independence when the tools are paid for, it is analogous to the independence any employee has who has gained experience and the ability to market himself to competing employers. In sum, these expenditures seem to detract little from the worker's economic dependence on Knight, which is the lens through which we evaluate each of the several factors. Thus, to the extent that this factor weighs in favor of independent contractor status, the weight in that direction is minimal. D. Special Skill The fourth factor considers whether the service rendered requires a special skill. This factor favors independent contractor status, but it does so only weakly. Plaintiffs were clearly skilled workers. 13 The meaningfulness of this skill as indicating that plaintiffs were in business for themselves or economically independent, however, is undermined by the fact that Knight provided most technicians with their skills. Technicians could come to Knight from other installation outfits or be completely inexperienced. Most technicians, however, were inexperienced and underwent some length of unpaid training by Knight, which was followed by some period of unpaid ride-alongs with experienced technicians, before performing work on their own. Robert Collins, a former Knight installation manager, testified that Knight generally provided about two weeks of training and technicians did about a week of ride-alongs, and he estimated that only 10 to 15 percent of technicians did not require training. 13 Plaintiffs conceded as much in their Second Amended Complaint. See Doc. 38 at 1 (“Plaintiffs are skilled technicians who install and repair high-speed Internet, cable television and telephone services for customers of Defendant Bright House, LLC.”). Plaintiffs were, therefore, dependent upon Knight to equip them with the skills necessary to do their jobs. The skills attained by technicians point toward a degree of economic independence insofar as a highly trained technician could gain economic independence by the ability to market his skills to a competing employer. This does not, however, significantly distinguish such a worker from the “usual path of an employee.” To the extent that this factor favors independent contractor status, it does so weakly. E. Permanency and Duration The fifth factor considers the degree of permanency and duration of the working relationship. This factor points strongly toward employee status. Named plaintiffs worked for Knight for an average of more than five years. Their contracts were for year terms, were automatically renewed, and were terminable only with thirty days' notice. These facts suggest substantial permanence of relationship. *1319 Knight argues that this factor must also be viewed in terms of exclusivity, arguing that a technician's ability to work for other installation contractors is significant. Exclusivity is relevant. However, the facts viewed in the light most favorable to plaintiffs favor plaintiffs in this regard. Plaintiffs' evidence indicates that they could not work for other companies, were required to work long hours, and could not turn down work orders. Thus, their relationship with Knight was not only of long duration, but it was also exclusive. Assuming factual inferences in favor of plaintiffs, and looking through the lens of economic dependence vel non, long tenure, along with control, and lack of opportunity for profit, point strongly toward economic dependence. Thus, this factor strongly indicates employee status. F. Integral Part of Alleged Employer's Business WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 476 of 520 PageID 1112 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 The sixth and final factor considers the extent to which the service rendered is an integral part of the alleged employer's business. This factor weighs clearly and strongly toward employee status. Approximately two-thirds of Knight's business consists of the telecommunications installation and repair services it performs for BHN. Knight relies on approximately five hundred technicians to perform installations and repairs in BHN customers' homes and businesses. Knight's website described its Installation Services department as the “backbone” of its business. The integral role played by technicians in Knight's business shows that the arrangement follows more closely that of an employer-employee relationship than an independent contractor dynamic. If Knight had truly outsourced such a large portion of its business, as would be true if plaintiffs were independent contractors, then the company would retain far less control over the business. However, because of Knight's concern with the quality of the services it provides through this arrangement, it does, as one might expect, control the relationship in much the same way a company would control its employees. The technicians' integral part in Knight's business follows the “usual path of an employee.” Assuming factual inferences in favor of plaintiffs, this factor points strongly toward employee status. G. Weighing the Factors When all the facts are viewed in the light most favorable to the plaintiffs and all reasonable inferences are drawn in their favor, four of the six factors weigh strongly in favor of employee status. The two factors that do not—investment and special skill—weigh only very slightly toward independent contractor status. Neither contributes in any significant manner to the workers' economic independence or to distinguishing the workers from “the usual path of an employee.” Thus, we conclude that, viewing the facts most favorably toward plaintiffs and with all justifiable inferences drawn in their favor, plaintiffs were “employees”—not “independent contractors”—under the FLSA. Because there are genuine issues of material fact, and because plaintiffs were “employees” if all reasonable factual inferences are found in plaintiffs' favor, the district court erred in granting summary judgment to Knight. IV. MOTIONS REGARDING KNIGHT'S ALLEGED COERCIVE AND RETALIATORY CONDUCT Plaintiffs argue that the district court abused its discretion in failing to limit Knight's allegedly coercive and retaliatory course of conduct against plaintiffs and potential opt-in plaintiffs and that the district *1320 court took no action in response to its repeated efforts to bring this alleged conduct to its attention via various motions. This is not the case. On March 16, 2012, the district court denied the plaintiffs' motions to reopen the opt-in period, for protective order, for corrective notice, and for sanctions. The court noted that a pretrial conference had been scheduled, trial was set to begin in June, discovery was over, “dispositive motions [had] been taken under advisement,” and reopening the opt-in period “would serve no purpose.” The district court also explained that any “additional claims of retaliation ... can be pursued in a separate case.” [9] We review a district court's decision made in the course of managing its docket for an abuse of discretion. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863– 64 (11th Cir.2004). Plaintiffs do not challenge the district court's rationale in this regard. We therefore conclude that the district court did not abuse its wide discretion in managing its docket. V. CONCLUSION The district court's denial of plaintiffs' motions to reopen the opt-in period, for protective order, for corrective notice, and for sanctions is AFFIRMED. The district court's summary judgment order is REVERSED and REMANDED for further proceedings consistent with this opinion. 14 14 Knight's motion to strike plaintiffs' notice of supplemental authority is DENIED AS MOOT. Other challenges to the judgments of the district court are rejected without need for further discussion. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 477 of 520 PageID 1113 Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (2013) 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 All Citations 721 F.3d 1308, 163 Lab.Cas. P 36,141, 21 Wage & Hour Cas.2d (BNA) 231, 24 Fla. L. Weekly Fed. C 457 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 478 of 520 PageID 1114 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 884 F.3d 1093 United States Court of Appeals, Eleventh Circuit. Edward SHAW, as Personal Representative of the estate of Ananias Shaw, Plaintiff-Appellant, v. CITY OF SELMA, an Alabama Municipal Corporation, Chief William Riley, in his official and individual capacity, Officer Desmond Williams, Defendants-Appellees. No. 17-11694 | (March 7, 2018) Synopsis Background: The estate of a suspect, who was shot and killed by a police officer, brought action in state court under § 1983 and state law against city, chief of police, and officer who shot suspect, alleging excessive force, false arrest, and other claims. Following removal, the United States District Court for the Southern District of Alabama, D.C. Docket No. 2:16–cv–00007–WS, William H. Steele, J., 241 F.Supp.3d 1253, granted summary judgment to defendants. The estate appealed. Holdings: The Court of Appeals, Ed Carnes, Chief Judge, held that: [1] even assuming suspect did not raise the hatchet he was holding, officer did not use excessive force in fatally shooting him; [2] suspect was not arrested when officer trained his gun on him, precluding a § 1983 false arrest claim; and [3] Alabama's state agent immunity shielded police officer from the estate's state law tort claims. Affirmed. May, District Judge, sitting by designation, filed opinion concurring in the result. West Headnotes (23) [1] Federal Courts Summary judgment On an appeal from summary judgment, Court of Appeals reviews the evidence in the light most favorable to the non-moving party, and draw all justifiable inferences in its favor. 2 Cases that cite this headnote [2] Federal Courts Summary judgment On an appeal from summary judgment, Court of Appeals will accept facts clearly depicted in a video recording even if there would otherwise be a genuine issue about the existence of those facts. 2 Cases that cite this headnote [3] Federal Courts Summary judgment Court of Appeals reviews de novo the district court’s grant of summary judgment. 2 Cases that cite this headnote [4] Federal Civil Procedure Matters Affecting Right to Judgment Federal Civil Procedure Burden of proof Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, and if that standard is met, the burden shifts to the nonmoving party to come forward with specific facts showing that there is a genuine issue for trial. 8 Cases that cite this headnote [5] Federal Civil Procedure Materiality and genuineness of fact issue Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 479 of 520 PageID 1115 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 To prevent summary judgment, a factual dispute must be both material and genuine, and a fact is “material” if it has the potential of affecting the outcome of the case. 3 Cases that cite this headnote [6] Federal Civil Procedure Materiality and genuineness of fact issue To raise a “genuine” dispute of fact, so as to preclude summary judgment, the nonmoving party must point to enough evidence that a reasonable jury could return a verdict for him. 2 Cases that cite this headnote [7] Federal Courts Summary judgment When considering the record on summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor, but in cases where a video in evidence obviously contradicts the nonmovant’s version of the facts, Court of Appeals accepts the video’s depiction instead of the nonmovant’s account and views the facts in the light depicted by the videotape. 5 Cases that cite this headnote [8] Arrest Use of force Even assuming mentally ill suspect did not raise the hatchet he was holding, officer did not use excessive force in fatally shooting the suspect, where the suspect presented a clear danger, as he had been reported for threatening customers with a knife at the same restaurant only a few days before, he was armed and noncompliant, ignoring more than two dozen orders to drop the hatchet, he was advancing on the officer with hatchet in hand, and, at the time he was shot, he was within a few feet of the officer and was getting closer still, yelling at the officer to “Shoot it!” U.S. Const. Amend. 4. 1 Cases that cite this headnote [9] Civil Rights Good faith and reasonableness; knowledge and clarity of law; motive and intent, in general Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. 5 Cases that cite this headnote [10] Civil Rights Government Agencies and Officers Civil Rights Good faith and reasonableness; knowledge and clarity of law; motive and intent, in general To overcome the qualified immunity defense, the plaintiff must satisfy a two step inquiry: it must first prove that the facts alleged, construed in the light most favorable to it, establish that a constitutional violation did occur, and it must also show that law existing at the time the conduct occurred clearly established that the conduct violated the constitution. 5 Cases that cite this headnote [11] Arrest Use of force Court analyzes a claim of excessive force under the Fourth Amendment’s objective reasonableness standard, which means court determines whether a seizure was objectively reasonable from the perspective of a reasonable officer on the scene. U.S. Const. Amend. 4. 1 Cases that cite this headnote [12] Arrest Use of force Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 480 of 520 PageID 1116 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 The amount of force used to affect a seizure must be reasonably proportionate to the need for that force. U.S. Const. Amend. 4. Cases that cite this headnote [13] Arrest Use of force When analyzing a claim of excessive force under the Fourth Amendment’s objective reasonableness standard, the court considers the severity of the crime at issue and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. U.S. Const. Amend. 4. 1 Cases that cite this headnote [14] Arrest Use of force If a reasonable officer could have believed that under the circumstances a suspect posed a threat of inflicting serious injury or death on him, shooting the suspect was objectively reasonable regardless of whether the suspect had already committed a crime or was resisting or attempting to evade arrest. U.S. Const. Amend. 4. 2 Cases that cite this headnote [15] Arrest Use of force In cases involving excessive force claims it is doctrinal gospel that the court does not view an officer’s actions with the 20 /20 vision of hindsight, and that the court makes special allowance for them in tense, uncertain, and rapidly evolving situations. U.S. Const. Amend. 4. Cases that cite this headnote [16] Civil Rights Arrest and detention Suspect was not arrested when police officer trained his gun on him after he saw suspect pick up a hatchet, and thus, suspect's estate could not pursue a § 1983 false arrest claim. U.S. Const. Amend. 4; 42 U.S.C.A. § 1983. Cases that cite this headnote [17] Arrest Arrest Distinguished The fact that police draw their weapons does not, as a matter of course, transform an investigatory stop into an arrest. U.S. Const. Amend. 4. Cases that cite this headnote [18] Federal Courts Failure to mention or inadequacy of treatment of error in appellate briefs The estate of suspect fatally shot by police officer abandoned its argument on appeal that district court improperly granted summary judgment for the officer and other defendants on its § 1983 false imprisonment claim, where the estate mentioned that argument only in its issue statement without further support. U.S. Const. Amend. 4; 42 U.S.C.A. § 1983. Cases that cite this headnote [19] Civil Rights Arrest and detention The fact that suspect did not stop when officers aimed their weapons at him, but instead ignored the officers and walked away, foreclosed any § 1983 unlawful seizure claim brought by suspect's estate, based on a stop short of an arrest. U.S. Const. Amend. 4; 42 U.S.C.A. § 1983. Cases that cite this headnote [20] Arrest What Constitutes a Seizure or Detention When a person refuses to submit to an officer’s display of authority, there is no Fourth Amendment seizure before a shooting. U.S. Const. Amend. 4. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 481 of 520 PageID 1117 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 1 Cases that cite this headnote [21] Municipal Corporations Police and fire Public Employment Law enforcement personnel Alabama's state agent immunity shielded police officer from state law tort claims brought by the estate of mentally ill suspect who was shot and killed by officer as he yelled for officer to “Shoot it!” while approaching within a few feet of officer with a hatchet in his hand; there was no evidence officer ran afoul of or failed to follow any detailed rules or regulations for dealing with mentally ill suspects, and so the decisions officer made in those circumstances were discretionary, officers’ investigation and questioning of suspect was an attempt to prevent him from harming someone with the hatchet he was wielding, which was within their authority, and there was no evidence that officer acted with malice in shooting suspect, who was armed, erratic, and noncompliant. Ala. Code § 6-5-338(a). Cases that cite this headnote [22] Public Employment Discretionary function immunity States Liabilities for official acts “Discretionary functions” subject to state agent immunity under Alabama law are those as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances, and that includes acts arising from the enforcement of the criminal laws of the State. Ala. Code § 6-5-338(a). Cases that cite this headnote [23] Arrest Use of force Municipal Corporations Police and fire Determining whether an officer’s use of force was malicious, for state agent immunity purposes under Alabama law, requires a subjective assessment of the officer’s state of mind at the moment force was used. Ala. Code § 6-5-338(a). Cases that cite this headnote *1096 Appeal from the United States District Court for the Southern District of Alabama, D.C. Docket No. 2:16– cv–00007–WS–M Attorneys and Law Firms Henry Sanders, Chestnut Sanders & Sanders, LLC, Selma, AL, for Plaintiff-Appellant. Rick A. Howard, April W. McKay, Holtsford Gilliland Higgins Hitson & Howard, PC, Montgomery, AL, for Defendants-Appellees. Before ED CARNES, Chief Judge, BLACK, Circuit Judge, and MAY, * District Judge. * Honorable Leigh Martin May, United States District Judge for the Northern District of Georgia, sitting by designation. Opinion ED CARNES, Chief Judge: A Selma Police officer shot and killed Ananias Shaw, who was coming toward him with a hatchet. Shaw’s estate brought 42 U.S.C. § 1983 claims for excessive force and false arrest and state law tort claims against Officer Desmond Williams, former Selma Police Chief William Riley, and the City of Selma. The district court granted summary judgment in favor of the defendants and the estate has appealed. I. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 482 of 520 PageID 1118 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 A. In the middle of the afternoon in early December 2013, Selma Police received an emergency call about a disturbance at a Church’s Chicken restaurant. Shaw, a 74-year-old mentally ill man, had attempted to enter the restaurant but was turned away by its general manager. Officers Daniel Boone, Ronald Jones, and Desmond Williams responded to a dispatch about the incident. *1097 The dispatch directed the officers to the Church’s Chicken with the call “disorderly conduct in progress.” The dispatcher relayed the suspect’s description to the officers and informed them that Shaw had been at the restaurant the Sunday before “armed with a knife.” [1] [2] Jones was already in the area near the Church’s Chicken. After he spotted Shaw, who matched the dispatched description of the disorderly suspect, Jones radioed for the other officers to join him. The three of them found Shaw inside an abandoned laundromat down the street. Most of the events of the next two minutes were recorded by Williams’ body camera. 1 1 Because this is an appeal from summary judgment, we review the evidence in the light most favorable to the estate as the non-moving party, and draw all justifiable inferences in its favor. Tolan v. Cotton, 572 U.S. ––––, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014). We will, however, accept facts clearly depicted in a video recording even if there would otherwise be a genuine issue about the existence of those facts. See Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). But where the recording does not clearly depict an event or action, and there is evidence going both ways on it, we take the estate’s version of what happened. Boone, who was familiar with Shaw, went inside the building “to talk” with him and coax him out. Williams walked up to the building at roughly the same time. As he approached, Jones (who also knew Shaw) warned Williams that Shaw would “fight you in a minute.” Once inside, Boone asked Shaw to go outside the laundromat and speak with him, but Shaw refused. Shaw then bent down and picked up a hatchet. Boone drew his gun in response and started backing out of the building. Shaw, holding the hatchet, followed him. As Boone exited the laundromat, the officers firmly and clearly told Shaw several times to “put the axe down.” 2 Once Shaw was outside, Williams drew his gun, and Jones pulled out his baton. Shaw began slowly walking away from the building in the direction of the restaurant. The officers followed him down the street with their weapons drawn. Between Shaw’s curses at them, they repeatedly instructed him to put down the hatchet. Shaw ignored them and continued walking away, hatchet still in hand. 2 The officers call it an “axe” in the video, but both sides refer to it in their briefs as a hatchet, and so will we. The four continued making their way down the street, walking past some houses. Shaw slowed down and moved onto the front lawn of one of those houses, stopping beside a parked car. Williams, following closely, raised his pistol and ordered Shaw to put down the hatchet twice more. Shaw stopped walking, turned, and began moving slowly towards Williams. As he approached, Shaw shouted for Williams to “Shoot it! Shoot it!” As he did so, Shaw’s right arm and the hatchet were outside the frame of the video. By the time he was less than five feet away from Williams, Shaw, while holding the hatchet, yelled “Shoot it!” one more time. Williams immediately fired a single shot at Shaw’s chest, and Shaw fell. 3 The video shows that when the shot was fired Shaw was close to Williams and moving closer. A short time afterwards, the paramedics pronounced Shaw dead at the scene. 3 Whether Shaw was raising the hatchet when he was shot is not clear from the video. We will assume that he did not raise it. See Tolan, 134 S.Ct. at 1863. In the two minutes or so between Williams’ arrival at the laundromat and the *1098 shooting, the officers told Shaw to “put the axe down” at least 26 times. B. After the shooting, Shaw’s estate, represented by his brother, Edward Shaw, brought a wrongful death action against Williams, former Selma Police Chief William Riley, and the City of Selma. The original complaint asserted twenty-two causes of action against the defendants for various civil rights violations under Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 483 of 520 PageID 1119 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 the Fourth Amendment and several state law tort claims, some of which overlapped with the federal claims. The defendants moved for summary judgment, contending that they were entitled to qualified immunity and state agent immunity, and that the estate could not prevail on any of its federal or state law claims. The district court granted the defendants’ motion. It dismissed all of the estate’s federal claims on the merits or on qualified immunity grounds. It also dismissed some of the estate’s state law claims on the merits and the remainder of them on state agent immunity grounds. II. [3] [4] We review de novo the district court’s grant of summary judgment. Smith v. LePage, 834 F.3d 1285, 1291 (11th Cir. 2016). “Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks omitted). If that standard is met, the burden shifts to the nonmoving party to “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quotation marks omitted). [5] [6] To prevent summary judgment, a factual dispute must be both material and genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is “material” if it has the potential of “affect[ing] the outcome” of the case. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (quotation marks omitted). And to raise a “genuine” dispute, the nonmoving party must point to enough evidence that “a reasonable jury could return a verdict for [him].” Id. [7] When considering the record on summary judgment “the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tolan, 134 S.Ct. at 1863 (quotation marks and alterations omitted). But in cases where a video in evidence “obviously contradicts [the nonmovant’s] version of the facts, we accept the video’s depiction instead of [the nonmovant’s] account,” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010), and “view[ ] the facts in the light depicted by the videotape,” Scott, 550 U.S. at 380–81, 127 S.Ct. at 1776. III. A. [8] [9] The estate contends that Williams is not entitled to qualified immunity because he used excessive force when he shot Shaw. “Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007) (quotation marks omitted). Because the estate does not dispute that Williams *1099 was acting within the scope of his discretionary authority when he shot Shaw, it must show that qualified immunity is otherwise inappropriate. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). [10] To overcome the qualified immunity defense, the estate must satisfy a two step inquiry. It must first prove that the facts alleged, construed in the light most favorable to it, establish that a constitutional violation did occur. Smith, 834 F.3d at 1291. And it must also show that law existing at the time the conduct occurred clearly established that the conduct violated the constitution. Pearson v. Callahan, 555 U.S. 223, 232–36, 129 S.Ct. 808, 816–18, 172 L.Ed.2d 565 (2009). [11] [12] [13] [14] “We analyze a claim of excessive force under the Fourth Amendment’s objective reasonableness standard.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009) (quotation marks omitted). That means we determine whether the seizure was “objectively reasonable ... from the perspective of a reasonable officer on the scene.” 4 Smith, 834 F.3d at 1294 (quotation marks omitted). The amount of force used to affect the seizure must be reasonably proportionate to the need for that force. Lee, 284 F.3d at 1198. We balance several factors on that scale. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). The decisive one here is the threat of physical harm that Shaw posed at the time he was shot. The issue is whether an officer Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 484 of 520 PageID 1120 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 in Williams’ position reasonably could have believed that Shaw posed a serious threat when he was close to and advancing on Williams, had a hatchet in his hand, and had ignored more than two dozen orders to drop the weapon. 5 See Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (“In this case, the reasonableness analysis turns on the second of these factors: presence of an imminent threat.”). 4 There is no dispute that Williams’ shooting of Shaw constituted a “seizure.” See Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). 5 We also consider “the severity of the crime at issue ..., and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872. While neither of those factors is present in this case, they are not required either. If a reasonable officer could have believed that under the circumstances Shaw posed a threat of inflicting serious injury or death on him, the shooting was objectively reasonable regardless of whether Shaw had already committed a crime or was resisting or attempting to evade arrest. See Garner, 471 U.S. at 11, 105 S.Ct. at 1701 (explaining that the use of deadly force is not unconstitutional “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others”). The estate contends that summary judgment should not have been granted because there is a genuine issue of material fact about whether Shaw had raised the hatchet in his hand when Williams shot him. And if he hadn’t, the estate argues that no officer reasonably could have believed that Shaw posed an immediate threat to Williams or others. Given the light in which we must view the evidence at this stage of the proceeding, we assume that the factual premise of that syllogism is correct: that Shaw did not raise the hatchet he was holding. But the legal premise —that no reasonable officer could have feared serious injury or death unless the hatchet-holding hand was raised up at the time—is wrong. The reasonableness of the shooting depends on the totality of the circumstances. Garrett v. Athens-Clarke County, 378 F.3d 1274, 1280 (11th Cir. 2004). Shaw was mentally ill and dangerous. Williams had been warned moments before that Shaw “would *1100 fight [him] in a minute.” And Shaw had been reported for threatening customers with a knife at the same Church’s Chicken only a few days before. On this occasion Shaw presented a clear danger. He was an armed and noncompliant suspect who had ignored more than two dozen orders to drop the hatchet. At the time he was shot, Shaw was advancing on Williams with hatchet in hand. He was close to him— within a few feet—and was getting closer still, yelling at Williams to “Shoot it!” Shaw could have raised the hatchet in another second or two and struck Williams with it. Whether the hatchet was at Shaw’s side, behind his back, or above his head doesn’t change that fact. Given those circumstances, a reasonable officer could have believed that Shaw posed a threat of serious physical injury or death at that moment. 6 A reasonable officer could have also concluded, as Williams apparently did, that the law did not require him to wait until the hatchet was being swung toward him before firing in self-defense. 6 The estate asserts that when the shot was fired Williams was walking towards Shaw, but the video clearly shows that he was not. See Scott, 550 U.S. at 380–81, 127 S.Ct. at 1776. Instead of clearly establishing the law against Williams, binding precedent clearly establishes it in his favor. See Singletary v. Vargas, 804 F.3d 1174, 1183 (11th Cir. 2015) (“[T]he law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.”) (quoting Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007)); Jean- Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (“Regardless of whether [the suspect] had drawn his gun, [his] gun was available for ready use, and [the officer] was not required to wait and hope for the best [before using deadly force to stop him].”) (quotation marks omitted); Garczynski v. Bradshaw, 573 F.3d 1158, 1169 (11th Cir. 2009) (“[W]here orders to drop [a] weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.”) (quotation marks omitted); see also Smith, 834 F.3d at 1294–95 (concluding that it was reasonable for officers to believe that a suspect who was carrying a knife and refused to comply with orders to disarm himself posed an immediate threat to the officers’ safety); Blanford v. Sacramento County, 406 F.3d 1110, 1116–19 (9th Cir. 2005) (holding that officers did not use excessive force in shooting a suspect carrying a sword after the suspect, who was behaving erratically, refused to comply with orders to drop the sword, even though he had not actually threatened anyone with the weapon). 7 Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 485 of 520 PageID 1121 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 7 In addition to arguing that Shaw had not raised the hatchet at the time he was shot, the estate points to some other purported factual disputes that it contends should be resolved in its favor at this stage: whether Shaw had the hatchet when he tried to enter the Church’s Chicken, and whether Shaw was “hollering and yelling” in the abandoned laundromat when the officers came onto the scene. But both of those facts are immaterial to our conclusion. Another fact the estate disputes—whether Shaw lunged at Williams when he was shot—we have resolved in the estate’s favor, as we must, see Tolan, 134 S.Ct. at 1863, but it does not change our conclusion either. [15] In cases involving excessive force claims it is doctrinal gospel that we do not view an officer’s actions with “the 20/20 vision of hindsight,” Jones v. Fransen, 857 F.3d 843, 852 (11th Cir. 2017) (quotation marks omitted), and that we make special allowance for them in “tense, uncertain, and rapidly evolving” situations, Penley, 605 F.3d at 850. Even with the benefit of *1101 hindsight and without making any special allowance, we would not find that Williams violated clearly established Fourth Amendment law. The shooting of a mentally ill man was tragic, as such shootings always are, but tragedy does not equate with unreasonableness. B. [16] [17] [18] [19] [20] The estate next contends that the district court improperly granted summary judgment in favor of the defendants on the merits of the § 1983 false arrest claim. 8 It argues that before the shooting occurred Shaw was arrested when Williams trained his gun on him as Shaw exited the laundromat. But we have said time and time again that “the fact that police ... draw their weapons does not, as a matter of course, transform an investigatory stop into an arrest.” United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995). Simply because Williams did so here after he saw Shaw pick up the hatchet did not transform this stop into an arrest either. Id.; see also United States v. Aldridge, 719 F.2d 368, 371 (11th Cir. 1983) (“The use of a gun in connection with a stop is permissible when the officer reasonably believes it is necessary for his protection.”); cf. Courson v. McMillian, 939 F.2d 1479, 1492 (11th Cir. 1991) (“[T]he use of a particular method to restrain a person’s freedom of movement does not necessarily make police action tantamount to an arrest, and ... police may take reasonable action, based upon the circumstances, to protect themselves ....”) (quotation marks and alterations omitted). Without an arrest, there can be no claim for false arrest. See Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010) (defining a § 1983 claim for false arrest as “an arrest without a warrant and lacking probable cause”) (emphasis added). As a result, the district court did not err in granting summary judgment to the defendants on the estate’s false arrest claim. 9 8 The estate also contends that the district court improperly granted summary judgment for the defendants on its § 1983 false imprisonment claim. But it mentions that argument only in its issue statement without further support, so it is abandoned. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.”). 9 The estate also argues that even before the shooting occurred, Williams violated Shaw’s Fourth Amendment rights by trying to stop and speak with him. That argument borders on the frivolous. When a person refuses to submit to an officer’s display of authority, there is no Fourth Amendment seizure before a shooting. Menuel v. City of Atlanta, 25 F.3d 990, 995 (11th Cir. 1994) (holding that a person who is “intransigent and ... neither yield[s] to physical force ... nor submit[s] to a display of authority” before a shooting is not “seized either in the Fourth Amendment sense or in the everyday sense”). Even with the greatest demonstration of police authority (aiming a gun at him), Shaw ignored the officers and walked away. For that reason we reject any argument that Shaw was unconstitutionally arrested before the shooting. And while a claim that a plaintiff was unconstitutionally stopped may differ from an unconstitutional or false arrest claim, the fact that Shaw did not stop also forecloses a seizure claim based on a stop short of an arrest. IV. [21] [22] The estate contends that the district court erred by concluding state agent immunity shields Williams from its state law claims. Alabama law provides every police officer with “immunity from tort liability arising out of his or her conduct in performance of any Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 486 of 520 PageID 1122 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 discretionary function within the line and scope of his or her law enforcement duties.” Ala. Code § 6–5–338(a). Discretionary functions are *1102 those “as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances.” Sheth v. Webster, 145 F.3d 1231, 1239 (11th Cir. 1998) (quotation marks omitted) (applying Alabama law). That includes acts arising from the “enforcement of the criminal laws of the State.” Ex parte Butts, 775 So.2d 173, 178 (Ala. 2000) (quotation marks omitted); see also Grider v. City of Auburn, 618 F.3d 1240, 1268 (11th Cir. 2010) (“Police investigations and arrests usually are considered discretionary functions within the line and scope of law enforcement duties for the purposes of discretionary- function immunity.”) (quotation marks and alterations omitted) (applying Alabama law). To survive summary judgment, the estate must show that Williams either “failed to discharge [his] duties pursuant to detailed rules or regulations,” or that he “acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law” in shooting Shaw. Butts, 775 So.2d at 178. The estate fails to make either showing. To begin with, there is no evidence Williams ran afoul of or failed to follow any detailed rules or regulations. See Ex parte Mason, 146 So.3d 9, 12–13 (Ala. 2013). The only evidence the estate offers is testimony about what an officer “probably would[ ] have” done or “usually” does when approaching a suspect or dealing with the mentally ill. Without any “hard and fast rule” to point to, the decisions Williams made in those circumstances are clearly discretionary. Sheth, 145 F.3d at 1239. [23] There is also no evidence that Williams “acted with malice in shooting Shaw.” Determining whether an officer’s use of force was malicious for state agent immunity purposes requires a subjective assessment of the officer’s state of mind at the moment force was used. See Ex parte Essary, 992 So.2d 5, 9 (Ala. 2007) (“[W]anton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.”) (quotation marks omitted). The estate argues that Williams shot Shaw “not because he felt his life was threatened but out of ego due to Shaw’s defiance.” The video footage forecloses that argument. At the fatal moment, Williams was confronted with an armed, erratic, and noncompliant suspect who was only a few feet away from him and moving closer, yelling for Williams to “Shoot it! Shoot it!” As we explained earlier, an objective officer in Williams’ position could believe that Shaw was an immediate and deadly threat. There is no evidence in the record indicating Williams’ subjective belief was different. The estate’s other argument—that Williams acted beyond his authority by pursuing Shaw for a misdemeanor charge committed outside his presence—also fails. The officers’ investigation and questioning of Shaw was an attempt to prevent him from harming someone with the hatchet he was wielding, which is clearly within their authority. Butts, 775 So.2d at 178 (stating that officers have the authority to “enforce[ ] ... the criminal laws of the State”) (quotation marks omitted). For those reasons, Williams is entitled to state agent immunity on all of the estate’s state law claims. 10 See *1103 Sheth, 145 F.3d at 1239; Butts, 775 So.2d at 178. Williams’ immunity renders Riley and the City immune as well. Ala. Code § 6–5–338(a); see also Ex parte Harris, 216 So.3d 1201, 1216 (Ala. 2016) (“[T]o the extent that we have concluded above that [the government official] was entitled to State-agent immunity, the Town would also be immune from suit.”). 10 The estate also contends that the district court erred in rejecting Shaw’s state law false arrest and false imprisonment claims on the ground that “Shaw was not arrested.” It offers no support for that argument besides the conclusory claim that “[u]nder Alabama law, Williams’ actions constituted an arrest of Shaw.” Because the estate raises that claim only in passing and without support, it is abandoned. See Sapuppo, 739 F.3d at 681. AFFIRMED. MAY, District Judge, concurring in the result: I agree that binding Eleventh Circuit precedent requires the outcome reached by the Majority. I therefore concur in the result. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 487 of 520 PageID 1123 Shaw v. City of Selma, 884 F.3d 1093 (2018) 27 Fla. L. Weekly Fed. C 652 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 All Citations 884 F.3d 1093, 27 Fla. L. Weekly Fed. C 652 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 488 of 520 PageID 1124 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Goodrich v. Covelli Family Ltd. Partnership, M.D.Fla., March 19, 2012 2009 WL 151159 Only the Westlaw citation is currently available. United States District Court, S.D. Florida. Sherwil TAFALLA and Joemar Sales, Plaintiff, v. ALL FLORIDA DIALYSIS SERVICES, INC., et al., Defendants. No. 07–80396–CIV. | Jan. 21, 2009. West KeySummary 1 Health Persons Liable A physician practice, which worked with but did not have any control over the hiring, supervision, pay, control, or modification of the employment of a dialysis provider's nurses, was not liable as a joint employer. The practice and dialysis provider entered into an agreement where the dialysis provider would allow the practice to use their nursing staff for dialysis treatments. Although the entities were both responsible for providing patient care and support, their profits were not intermingled and were therefore considered single entities by law. Cases that cite this headnote Attorneys and Law Firms Peter Joseph Marshall Bober, Samara Robbins Bober, Bober & Bober, Hollywood, FL, for Plaintiffs. Keith A. Fousek, The Law Office of Keith A. Fousek, P.A., North Lauderdale, FL, Alexander D. Del Russo, Michael Adam Shafir, Allison Oasis Kahn, Carlton Fields P.A., West Palm Beach, FL, for Defendants. OPINION AND ORDER KENNETH A. MARRA, District Judge. *1 This cause is before the Court upon Defendants Jose Arrascue and South Palm Beach Nephrology, P.A.'s Motion for Summary Judgment (DE 90); Defendants All Florida Dialysis Services, Inc. and Majella Wilbanks' Motion for Summary Judgment (DE 100) and Plaintiffs Sherwil Tafalla and Joemar Sales' Motion for Summary Judgment (DE 103). The motions are fully briefed and ripe for review. The Court has carefully considered the motions and is otherwise fully advised in the premises. I. Background The facts, as culled from affidavits, exhibits, depositions, answers, answers to interrogatories and reasonably inferred therefrom, for the purpose of this motion, are as follows: All Florida Dialysis Services, Inc. (“All Florida”) is a Florida corporation created in July of 1998 by Majella Wilbanks (“Wilbanks”), a nurse who specializes in dialysis treatment, for the purpose of providing dialysis services. 1 (Wilbanks Dep. 8–9 .) South Palm Beach Nephrology, P.A. (“SPBN”) is a physician practice which provides medical services to its patients related to kidney and kidney diseases. It has been in business for more than 27 years and has six physician members, including Jose Arrascue, M.D. (Arrascue Dep. 5, 8; Arrascue Decl. ¶ 4.) Dr. Arrascue is on the medical staff of several area hospitals, including JFK Medical Center (“JFK”). (Arrascue Decl. ¶ ¶ 2–4.) Plaintiffs Sherwil Tafalla (“Tafalla”) and Joemar Sales (“Sales”) are both registered nurses. (Third Am. Compl. ¶ 11.) 1 All Florida's gross income from 2004–2006 was less than $500,000.00 (Federal Income Tax Returns, Ex. B, C, D to Wilbanks Dep .) Mr. Sales seeks the alleged unpaid overtime payments from the period of June 2005 through March 2007. (Sales Decl. ¶ 3.) Ms. Tafalla seeks the alleged unpaid overtime payments from the period of July 2006 through March 2007. (Tafalla Decl. ¶ 4.) WESTlAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 489 of 520 PageID 1125 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 In approximately 2001, JFK began to expand its medical services to include the provision of dialysis treatment to its patients. The hospital approached Dr. Arrascue, as managing member of SPBN, to see if SPBN was interested in operating the new dialysis unit. JFK and SPBN thereafter entered into a contract in which SPBN would operate the new dialysis unit at JFK. The JFK contract renewed until 2007, when dialysis services were taken over by another company. (Arrascue Decl. ¶ 5; Arrascue Dep. 10–11.) The dialysis unit was owned by JFK. (Arrascue Dep. 86.) Dr. Arrascue testified that the SPBN's contract with JFK was exclusive and required that SPBN provide dialysis coverage 24 hours a day, seven days a week. (Arrascue Dep. 15, 92, 103–04.) Dr. Arrascue met Ms. Wilbanks while she was working as a dialysis nurse at Delray Medical Center, where Dr. Arrascue also holds medical staff privileges. (Arrascue Dep. 11; Wilbanks Dep. 22.) In 2001, shortly after SPBN entered into the JFK contract, SPBN, through Dr. Arrascue, approached All Florida, through Wilbanks, to see if her company was interested in handling the dialysis treatment at the JFK unit. (Arrascue Dep. 12–14; Arrascue Decl. ¶ 7; Wilbanks Dep. 71–72.) SPBN and All Florida entered into a verbal agreement for All Florida to provide the nursing staff for dialysis treatments at the JFK unit. All Florida was the only company used by SPBN to provide dialysis services at JFK and SPBN could have terminated its contract with All Florida at any time. (Arrascue Dep. 88, 112; Wilbanks Dep. 36, 38, 103–04.) Pursuant to their agreement, SPBN would pay a flat amount per treatment to All Florida as well as a fee for being on call on a daily basis. 2 (Arrascue Dep. 14–19; Arrascue Decl. ¶ 7; Randolph Dep. 18–19; Wilbanks Dep. 198–99.) All Florida would also serve patients whose doctors were not part of SPBN. (Wilbanks Dep. 25.) 2 Specifically, SPBN paid All Florida a flat amount of $120.00 for hemodialysis treatment, $200.00 for plasmapheresis treatments and $30.00 for being on call. SPBN received, in return, more than those amounts from JFK. (Arrascue Decl. ¶ ¶ 6–7; Randolph Dep. 18–19.) *2 At first, there was a limited number of dialysis treatments on the JFK unit, and Ms. Wilbanks handled them herself. As the unit grew, however, she began to bring in other dialysis nurses to provide these treatments. Dr. Arrascue did not know who Ms. Wilbanks hired to work as dialysis nurses. Dr. Arrascue was not involved in the hiring of any staff for the dialysis unit, and he never discussed with Ms. Wilbanks her decision whom to hire. (Arrascue Dep. 16–17; Arrascue Decl. ¶ 8.) While Ms. Wilbanks was working as a dialysis nurse at JFK, she met Mr. Sales. Mr. Sales was employed as a nurse at the hospital and asked Ms. Wilbanks if she would train him to be a dialysis nurse. Mr. Sales began working part time for All Florida while Ms. Wilbanks trained him, and he was paid per patient treatment. In September of 2005, Mr. Sales requested that Ms. Wilbanks switch him to an hourly rate. (Sales Dep. 10, 82, 93–94; Wilbanks Dep. 40–45.) Ms. Wilbanks also met Ms. Tafalla at JFK. Ms. Tafalla also asked Ms. Wilbanks to train her to be a dialysis nurse. Ms. Tafalla began working part time for All Florida. She thereafter resigned from JFK and began working full time with All Florida in July of 2006 and was paid an hourly rate. (Tafalla Dep. 106–07, 131, 144; Wilbanks Dep. 145–46.) When discussing the possibility of a pay raise, Ms. Tafalla discussed it with Ms. Wilbanks, not SPBN. (Tafalla Dep. 226–27.) The dialysis nurses would arrive for work and clock in on All Florida's time clock. If a nurse had a question, or if there were any problems with the machines, they would contact Ms. Wilbanks. On the other hand, if a matter arose concerning patient care, the nurse would contact that patient's physician. (Sales Dep. 19–20; Tafalla Dep. 146–49.) The work schedules for All Florida nurses were posted monthly by Ms. Wilbanks. Nurses would write their names on the dates they wished to work and, if needed, Ms. Wilbanks would ask nurses to cover other dates. (Sales Dep. 54–55; Tafalla Dep. 136–39 .) Similarly, nurses would indicate on the schedule which nights they were willing to work “on call.” (Wilbanks Dep. 148–49.) All Florida used Paychecks as its payroll company. All Florida provided timecards for its staff which were kept on the JFK unit. After reviewing the timecards, Ms. Wilbanks would calculate the amounts due to each nurse and then call Paychecks to instruct them how much to pay each nurse. Paychecks would then direct deposit money into the accounts of the nurse. (Wilbanks Dep. 55–56, 60– 62.) SPBN did not determine the number of nurses needed to work, or which nurses should be assigned to which WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 490 of 520 PageID 1126 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 patients. If the unit needed more dialysis nurses, Ms. Wilbanks would make that decision. If Ms. Wilbanks was not there, the nurses themselves would contact fellow nurses to come in. (Arrascue Decl. ¶ 9; Wilbanks Dep. 113, 129–32.) Neither SPBN nor Dr. Arrascue were involved in the hiring decisions of All Florida. When Sales and Tafalla were hired by All Florida, they each interviewed with Ms. Wilbanks and no one else. (Arrascue Decl. ¶ 8; Sales 78, 81–82; Tafalla 131, 215.) Neither Sales nor Tafalla ever spoke with anyone at SPBN regarding their schedule, the hours they worked, or their pay. (Sales Dep. 82–83, 93– 95; Tafalla Dep. 131, 226–27.) *3 Ms. Wilbanks testified that when the nurses at All Florida asked for an increase in wages, she would ask Dr. Arrascue for an increase in rates for performing each procedure. (Wilbanks Dep. 87–88.) Dr. Arrascue was the decision maker on whether the rates paid to All Florida would be increased. (Wilbanks Dep. 87–88.) Mr. Sales and Ms. Tafalla testified that when they asked Ms. Wilbanks for a raise, she responded that she would have to check with Dr. Arrascue. (Sales Dep. 64; Tafalla Dep. 252.) Ms. Wilbanks would supervise Mr. Sales and Ms. Tafalla, although SPBN directed their work in the context of medical decisions. (Sales Dep. 77, 80–81; Tafalla Dep. 147–49; 152–53.) Both Mr. Sales and Ms. Tafalla received written evaluations prepared by Ms. Wilbanks, who signed the evaluator as “supervisor.” The evaluations were also signed by JFK's ICU director. (Sales Dep. 110– 13, 121; Tafalla Dep. 239–40; Wilbanks Dep. 206.) At times, Dr. Arrascue would share with Ms. Wilbanks good feedback that he heard from the hospital about the service provided to the dialysis patients. (Arrascue Dep. 55.) Dr. Arrascue never discussed with Ms. Wilbanks what she paid her dialysis nurses. (Arrascue Dep. 82, 98–99.) Dr. Arrascue testified that he participated “in a lot of the issues” pertaining to ordering equipment and supplies for the dialysis unit (Arrascue Dep. 31–32.) But he also testified that he would talk to Ms. Wilbanks “infrequently” and no more than “once every few weeks, if at all.” The communication was “primarily about patient care” and “not about the running of the program.” (Arrascue Dep. 47.) Dr. Arrascue would discuss with Ms. Wilbanks the need to buy another machine, the water system or the need to change filters. (Arrascue Dep. 47.) Dr. Arrascue was present at the dialysis unit “maybe one week a month.” (Arrascue Dep. 48.) All Florida did not provide its own supplies to the JFK unit. When supplies were needed, Ms. Wilbanks would send an inventory order form by facsimile to SPBN, who would then make arrangements to obtain the supplies. The JFK contract identified what equipment/ machines JFK would provide, and which were to be provided by SPBN. For example, JFK provided the “Baxter” dialysis machines, whereas SPBN provided the “Fresenius” dialysis machines. (Rudolph Dep. 41; Contract, Ex. 10 to Arrascue Dep.; Wilbanks Dep. 90.) However, in 2004, SPBN started buying machines for the provision of dialysis services at JFK and hired a technician to do the maintenance of the equipment. (Arrascue Dep. 35–36.) When All Florida needed more dialysis supplies, Ms. Wilbanks would talk to Dr. Arrascue or contact Ms. Rudolph at SPBN by telephone or facsimile. SPBN would order or pay for the dialysis supplies. (Arrascue Dep. 31– 32; Rudolph Dep. 38–41.) All Florida did not purchase any medical supplies or equipment. (Wilbanks Dep. 40.) In 2005, SPBN paid $107,794.63 for medical supplies and $8,205.32 for repairs and maintenance of dialysis equipment used by All Florida in the JFK dialysis unit. (Randolph Dep. 24–25; Ledger Report, Ex. 3 to Randolph Dep.) In 2006, SPBN paid $83,315.34 for medical supplies and $8,262.05 for repairs and maintenance of dialysis equipment used by All Florida in the JFK dialysis unit. (Ledger Reports, Ex. 5 & 6 to Randolph Dep.) In 2006, SPBN paid for All Florida's holiday party. (Randolph Dep. 32–33.) SPBN paid for the background investigation of All Florida's dialysis nurses, which was required and conducted by JFK hospital. (Arrascue Dep. 106–07.) SPBN paid for professional liability insurance for the provision of dialysis services under the JFK contract, but did not pay for workers' compensation insurance. (Arrascue Dep. 21, 98–99.) SPBN paid All Florida $1,208.39 in 2005 and $1,423.95 in 2006 to reimburse All Florida for office supplies. (Rudolph Dep. 22; Ledger Reports, Ex. 2 and 4 to Rudolph Dep.) *4 Dr. Arrascue was the doctor that Ms. Wilbanks would talk to when All Florida needed something addressed by JFK, such as problems with patient transport to the unit and problems with supplies and machines. (Wilbanks Dep. 29.) Ms. Wilbanks characterized Dr. Arrascue as “our advocate.” (Wilbanks Dep. 96.) Ms. Wilbanks WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 491 of 520 PageID 1127 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 testified that All Florida was “just doing the nursing service” and that the nurses were “just the puppet[s] there to perform the procedure how [the doctors] order it.” (Wilbanks Dep. 25.) Because All Florida was paying some of its dialysis nurses the same amount per procedure that SPBN was paying All Florida, All Florida was not always making a profit. (Wilbanks Dep. 74–76, 194.) The pay period for All Florida was bi-monthly from the first to the fifteenth of the month and then from the sixteenth to the end of the month. (Wilbanks Dep. 61, 181, 199.) Twice monthly, All Florida would send SPBN a list of treatments provided. (Rudolph Dep. 13.) SPBN's Practice Administrator Cathleen Rudolph would verify the treatment list, and based on that review, would calculate the amount to be paid to All Florida, prepare the check for payment, and contact Ms. Wilbanks to advise the check was ready for pick-up. (Rudolph Dep. 13–15, 17–18, 36–38.) For the years 2004 through 2006, SPBN was All Florida's only source of income. (Wilbanks Dep. 67.) SPBN made a profit under the JFK contract, as it was paid more by the hospital than it paid All Florida. (Arrascue Dep. 107–08.) When the JFK contract with SPBN was transferred to another company, All Florida no longer performed dialysis at JFK. (Arrascue Dep. 112; Wilbanks Dep. 36, 38, 103–04.) Plaintiffs move for summary judgment on the following bases: (1) All Florida was a single enterprise with SPBN under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.; (2) All Florida is liable as Plaintiffs' employer; (3) SPBN is liable as Plaintiffs' joint employer; (4) Ms. Wilbanks and Dr. Arrascue are individually liable as employers under the FLSA; (5) All Florida and SPBN violated the FLSA and (6) Plaintiffs are entitled to liquidated damages. Defendant All Florida and SPBN both seek a ruling that they do not qualify as joint employers. Alternatively, should the Court deny SPBN's motion for summary judgment, Dr. Arrascue seeks a ruling that he is not individually liable. II. Summary Judgment Standard The Court may grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). *5 The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electronic Industrial Co. v. Zenith Radio Corp. ., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed.R.Civ.P. 56(e), the non-moving party “may not rest upon the mere allegations or denials of the adverse party's pleadings,” but instead must come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587. Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the evidence advanced by the non-moving party “is merely colorable, or is not significantly probative, then summary judgment may be granted .” Anderson, 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202. III. Discussion A. Joint Employment WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 492 of 520 PageID 1128 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 The overtime wage provisions of the FLSA apply only to workers who are “employees” within the meaning of the Act. 29 U.S.C. § 206(a)(1). Under the FLSA, an “employee” is defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). An “employer” includes “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). To “employ” is defined as to “suffer or permit to work .” 29 U.S.C. § 203(g). The FLSA requires employers to provide a minimum wage for employees and prohibits employers from employing a worker for more than 40 hours a workweek without providing compensation for the excess hours at a rate not less than one and one-half times the regular rate of compensation. 29 U.S.C. § § 206, 207(a)(1). A determination of joint employment status under the FLSA is a question of law. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir.1996). The existence of a joint employment relationship turns on the “economic reality” of the relationship between the plaintiff and the putative employer, requiring courts to determine whether the surrounding circumstances show that the plaintiff is economically dependent on the putative employer. Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961); Aimable v. Long and Scott Farms, 20 F.3d 434, 439 (11th Cir.1994); Lane v. Capital Acquisitions and Management Co., No. 04–60602, 2007 WL 676019, at * 4 (S.D.Fla. Feb.28, 2007). The Eleventh Circuit has identified the following factors for courts to consider in making the determination that an individual employee is economically dependent upon, and therefore employed by another entity: (1) the nature and degree of control of the alleged joint employer over the employee; (2) the degree of supervision over work, either direct or indirect; (3) the right to hire, fire or modify the employment conditions; (4) the power to determine the workers' pay or method of payment; (5) the preparation of payroll and payment of wages; (6) the ownership of facilities where the work occurred; (7) the performance of a job integral to the business and (8) the relative investment in the equipment and facilities. Antenor, 88 F.3d at 932; Amiable, 20 F.3d at 440–46. Significantly, “a joint employment relationship is not determined by a mathematical formula.” Antenor, 88 F.3d at 933. While courts consider each factor separately, the factors must ultimately be weighed “collectively and qualitatively.” Id. Here, the basis for SPBN's liability rests on a finding that SPBN was a joint employer with All Florida. Moreover, without a finding that SPBN is liable as a joint employer, there can be no individual liability for Dr. Arrascue. With that in mind, the Court now considers the various factors as they relate to the facts of this case. 1. Nature and degree of control *6 The Eleventh Circuit has stated that control over an employee by a putative employer exists when that employer determines the number of workers hired for a job, when work should begin on a particular day, which workers should be assigned to specific tasks and whether a worker should be disciplined or retained. Id. The evidence shows that SPBN was not involved in the hiring of any dialysis nurses. Instead, those decisions fell under the province of All Florida. (Arrascue Dep. 16–17; Arrascue Decl. ¶ 8.) Likewise, All Florida was responsible for setting the work schedules of the dialysis nurses. (Sales Dep. 54– 55; Tafalla Dep. 136–39.) In fact, Plaintiffs testified that they never spoke with anyone at SPBN regarding their schedule, the hours they worked or rate of pay. (Sales Dep. 83, 94–95; Tafalla Dep. 227.) They also testified that they received written evaluations prepared by Ms. Wilbanks. (Sales Dep. 110–13; 121; Tafalla Dep. 239– 40.) Furthermore, Dr. Arrascue testified that he never discussed with Ms. Wilbanks what she paid the dialysis nurses. (Arrascue Dep. 82, 98–99.) Based on this evidence, the Court finds that SPBN did not exercise control over Plaintiffs. Plaintiffs disagree, both factually and legally. Plaintiffs rely on Preston v. Settle Down Enterprises, Inc., 90 F.Supp.2d 1267 (N.D.Ga.2000) and contend that direct, on-site supervision is unnecessary to have sufficient control under this factor. (Pl. Mot. at 13.) Preston concerned a temporary employment agency that claimed it was not a employer because it had no control over the workers once they reached their job site. The evidence before the Preston court showed that the temporary agency recruited, transported, paid and maintained records for the workers. In addition, the agency selected workers to send to job sites, told the workers when the vans would arrive to take them to the job site and set the workers' pay rates. Clearly, the facts in Preston differ significantly from the facts before this Court. In Preston, the temporary agency exercised substantial control over the temporary employees in a way not borne out by the evidence in the instant case. Indeed, SPBN performed none of the indicia of control that existed in Preston (i.e., recruiting, record maintenance, payment to workers). WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 493 of 520 PageID 1129 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Plaintiffs also point to the record and claim it shows SPBN “effectively controlled” All Florida based on the following: (1) All Florida only provided services to SPBN; (2) SPBN only used All Florida to provide dialysis services; (3) SPBN determined All Florida's hours by requiring round-the-clock coverage and (4) Dr. Arrascue participated in the running of the dialysis program. To begin, there is nothing in the record to suggest that SPBN required All Florida to provide dialysis services to SPBN exclusively. To the contrary, that was All Florida's business decision. The same can be said about SPBN's decision to use All Florida exclusively. With respect to hours, the evidence showed that Ms. Wilbanks set the hours that her nurses would work, not SBPN. (Sales Dep. 54–55; Tafalla Dep. 136–39.) The fact that the agreement between SPBN and All Florida required round-the-clock coverage reflects nothing more than one of the terms of the contract between these two corporate entities based upon SPBN's contractual obligation to provide such service to JFK. It does not speak to control over the employees of All Florida by SPBN. Lastly, in making their argument that Dr. Arrascue exercised control over the running of All Florida, Plaintiffs take significant liberties with the record. Read in its entirety, the deposition testimony of Dr. Arrascue and Ms. Wilbanks show that Dr. Arrascue's role was primarily to discuss patient care. Indeed, other doctors who had patients being served by All Florida also discussed patient care with the dialysis nurses at All Florida. 2. Degree of supervision over the work *7 Supervision over work includes overseeing the work and providing direction on a regular, even daily basis. Antenor, 88 F.3d at 935. Here, Plaintiffs testified that no one from SPBN ever supervised or directed them, with the exception of patient care issues. (Sales Dep. 19–20, 77, 80–81; Tafalla Dep. 146–49, 152–53.) In that circumstance, the doctors of SPBN (as well as other doctors at JFK) would provide orders pertaining to the manner of dialysis treatment to their respective patients. However, the evidence also showed that when Plaintiffs or other dialysis nurses needed assistance performing their required dialysis tasks, they would turn to Ms. Wilbanks for assistance. (Sales Dep. 19–20; Tafalla Dep. 146–49.) Thus, while the dialysis nurses would rely on the doctors' orders in providing patient care, Ms. Wilbanks provided the daily supervision over the workers. 3. Right to hire, fire or modify employment conditions There is no evidence that SPBN had any right to hire, fire or modify employment conditions. Mr. Sales testified that he was interviewed and hired by Ms. Wilbanks, not SPBN. Furthermore, Mr. Sales asked Ms. Wilbanks to switch him from a flat rate of payment to an hourly rate. Likewise, Ms. Tafalla testified that she spoke to Ms. Wilbanks about her salary and pay raises. (Sales Dep. 10, 81–82, 93–94; Tafalla Dep. 131, 226–27; Wilbanks Dep. 40–45.) Thus, with respect to this factor, there is no evidence suggesting that SPBN acted as a joint employer. Nonetheless, Plaintiffs claim that SPBN had the “ultimate power to fire every nurse at All Florida if All Florida was not performing well under SPBN's contract with JFK.” (Pl. Mot. at 14.) Plaintiffs point, however, only speaks to SPBN's ability to terminate its contract with All Florida, and says nothing about SPBN's ability to fire individual dialysis nurses. 4. Power to determine pay rates or methods of payment In Antenor, the Eleventh Circuit explained that pay rate refers to the amount of compensation to be paid, benefits paid, and how these payments are allocated. Method of payment refers to the “basis upon which a worker is paid, for example, by the hour or by the piece.” Id. at 936. Ms. Wilbanks made the determination to pay Mr. Sales a flat rate per treatment, and when Mr. Sales asked to be switched to an hourly rate, she approved his request. (Sales Dep. 10, 82, 93–94; Wilbanks Dep. 40–45.) Plaintiffs approached Ms. Wilbanks, not SPBN for a raise. (Tafalla Dep. 226–27.) Thus, this factor must be weighed against a finding of joint employment. Nonetheless, Plaintiffs point to the slim profit margin between what All Florida paid the nurses and what SPBN paid All Florida as well as All Florida's policy to increase the nurses' pay if SPBN increased the rates paid to All Florida. These facts, however, do not give rise to a joint employment relationship. See Aimable, 20 F.3d at 442 (finding no joint employment relationship when a contractor refused to pay farm laborers more money unless the contractor received more money from the farm when the evidence showed that the contractor had exclusive control over the laborers' compensation). The agreement between All Florida and SPBN did not require that All Florida set compensation rates for the dialysis nurses at the same rate of payment by SPBN to All Florida. That circumstance resulted from a business decision exclusively in the hands of All Florida. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 494 of 520 PageID 1130 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 5. Preparation of payroll and payment of wages *8 This factor tips heavily against a finding that SPBN was a joint employer. Ms. Wilbanks testified that All Florida used Paychecks as its payroll company and that Ms. Wilbanks would tell Paychecks how much money to pay each dialysis nurse. (Wilbanks Dep. 55–56, 60–62.) There is no evidence showing that SPBN was involved in the payment of wages to the nurses. Plaintiffs, however, note that the wages paid to the nurses by All Florida were equivalent to the amount paid per treatment to All Florida from SPBN. Additionally, Plaintiffs point out that SPBN paid All Florida a few days prior to All Florida paying its workers. According to Plaintiffs, this is evidence of a “corporate sham” by which SPBN used All Florida to “pass through” wage payments. (Pl. Mot. at 15.) Noticeably absent is any evidence to support this theory by Plaintiffs that All Florida and SPBN agreed to a “pass through” arrangement. In fact, the record evidence showed the opposite; i.e., that All Florida had exclusive control over payroll and payment of wages. 6. Ownership of facilities where work occurred The parties agree that JFK owned the dialysis unit and that the contract between JFK and SPBN gave SPBN the right to operate the dialysis unit. While Plaintiffs state that the dialysis nurses could not have provided dialysis services without SPBN providing All Florida the space, that does not change JFK's ownership of the facility. Therefore, this factor does not support a finding of joint employment. 7. Performance of job integral to business This factor weighs in favor of finding joint employment status. Clearly, the business at issue was to provide dialysis services and there is no question that dialysis nurses were essential to providing that service. Defendants do not directly challenge this conclusion. Instead, they claim that this factor has little probative value when considering skilled workers and point to language in Antenor which states that “a worker who performs a routine task that is a normal and integral part of the grower's production is likely to be dependent on the grower's overall production process.” Id. at 937. According to Defendants, the dialysis nurses did not perform a routine task, but a skilled task. The Court, however, does not read Antenor as turning on the workers' level of skill but on whether the workers are part of an “integrated economic unit.” Id. Here, doctors would determine that a patient needed dialysis services and those patients would be directed to All Florida nurses to perform that service. In that respect, the dialysis nurses performed as integral a function to SPBN as farmworkers who picked vegetables on land owned by the growers. 8. Investment in equipment and facilities Defendants concede that All Florida had no investment in the equipment or supplies at the dialysis unit. (SPBN's Resp. at 9; All Florida Resp. at 10.) The equipment was supplied by both JFK and SPBN and the supplies were provided by SPBN. Therefore, this factor tips in favor of finding a joint employment relationship. *9 After careful consideration of all of these factors collectively, the Court finds Plaintiffs were not jointly employed by SPBN. The overwhelming evidence shows that the dialysis nurses were economically dependent on All Florida, not SPBN. While SPBN invested in the equipment for the dialysis nurses to perform their jobs, and those jobs were integral to the business, All Florida handled significantly more aspects of Plaintiffs' work. All Florida interviewed and hired the nurses, supervised the dialysis nurses on a daily basis, approved pay raises, evaluated the nurses' work performance, managed and oversaw payroll, and set pay rates. Based on this totality of circumstances, the Court finds that no joint employment relationship exists as a matter of law. B. Enterprise Coverage The FLSA's overtime provision apply where an employee is engaged in commerce or the production of goods for commerce (“individual coverage”) or where an employee works for an enterprise engaged in commerce or in the production of goods for commerce (“enterprise coverage”). 29 U.S.C. § 206; see Ares v. Manuel Diaz Farms, Inc., 318 F.3d 1054, 1056 (11th Cir.2003). Plaintiffs seek to establish enterprise coverage for All Florida. However, Plaintiffs are unable to show that All Florida is a covered enterprise due to the undisputed fact that All Florida's gross revenue did not exceed $500,000.00. See 29 U.S.C. § 203(s)(1)(A)(ii). Thus, in order to show that enterprise coverage exists, Plaintiffs must demonstrate that All Florida and SPBN were a single enterprise. The FLSA defines “enterprise” as the “related activities performed (either through unified operation or common WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 495 of 520 PageID 1131 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 control) by any person or persons for a common business purpose.” 29 U.S.C. § 203(r)(1). To constitute a single enterprise, the following three elements must all exist: (1) related activities; (2) unified operation or common control and (3) common business purpose. Donovan v. Easton Land & Dev. Co., 723 F.2d 1549, 1551 (11th Cir.1984). This determination is a question of law for the Court to decide. Reich v. Bay, Inc., 23 F.3d 110, 114 (5th Cir.1994); Dunlop v. Ashy, 555 F.2d 1228, 1229 (5th Cir.1977). 3 3 The decisions of the United States Court of Appeals for the Fifth Circuit, as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc). (1) Related Activities “Activities are related when they are the same or similar, when they are auxiliary and service activities, or a part of a vertical structure.” Id. citing S.Rep. No. 145, 87th Cong., 1st Sess. 31, reprinted in 1961 U.S.Code Cong. & Ad. News 1620, 1660 (internal quotation marks omitted). Here, the undisputed facts demonstrate that SPBN treats patients with kidney disease and All Florida provides dialysis services to SPBN's patients. The Court finds that the these activities are “the same or similar.” See Chao v. A–One Med. Svcs., Inc., 346 F.3d 908, 915 (9th Cir.2003) (finding two companies providing home health services were engaged in related activities). (2) Unified Operation or Common Control *10 The second element of enterprise coverage requires Plaintiffs to show that the related business activities of All Florida and SPBN are conducted either “through unified operation or common control.” 29 U.S.C. § 203(r). Common control is established by showing a controlling ownership interest in a business and may also be shown by establishing “a common control center with the ultimate power to make binding policy decisions for all units of the enterprise.” Dunlop v. Ashy, 555 F.2d at 1231; 4 Donovan, 723 F.2d at 1552. Unified operation has been defined by the Department of Labor as follows: 4 The decisions of the United States Court of Appeals for the Fifth Circuit, as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc). Since the term “unified operation” has reference to the method of performing the related activities, it means combining, uniting, or organizing their performance so that they are in effect a single business unit or an organized business system which is an economic unit directed to the accomplishment of a common business purpose. The term “unified operation” thus includes a business which may consist of separate segments but which is conducted or operated as a unit or as a single business for a common business purpose. 29 C.F.R. § 779.217 Turning first to common control, the Court finds that the undisputed facts do not demonstrate common control. There is no evidence that SPBN had a controlling ownership interest in All Florida. All Florida is owned solely by Ms. Wilbanks. Furthermore, Ms. Wilbanks made all the policy decisions for All Florida. For example, she alone interviewed and hired the nurses, she managed the schedule for the nurses, set the rate of pay, managed payroll and evaluated the nurses' performance. See Dunlap, 555 F.3d at 1231 (restaurant manager who determined items on menu, the prices charged, hiring and firing of restaurant personnel and opening and closing hours made all policy decisions despite accepting some suggestions from motel manager and using the motel's safe to store the restaurant's daily receipts). Based on these facts, the Court finds no common control by SPBN over All Florida. Likewise, the Court finds that the business activities of All Florida and SPBN were not a unified operation. Unified operation requires showing “more than close cooperation and mutual assistance .” Dunlop, 555 F.2d at 1234. Factors to examine include intermingling funds, obtaining separate liability and workers' compensation insurance, ordering supplies separately, interchanging employees and operating with the same managers. Donovan, 723 F.2d at 1552. This factor is not as clear. The evidence shows no intermingling of funds, no interchanging of employees, no shared managers and no obtaining of workers' compensation insurance by SPBN by All Florida. On the other hand, supplies were ordered by SPBN for All Florida and SPBN obtained professional liability WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 496 of 520 PageID 1132 Tafalla v. All Florida Dialysis Services, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 151159 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 insurance for the dialysis nurses. Despite these two factors, weighing all the factors as a whole, the balance tips more heavily against a finding of a unified operation. In any event, as will be discussed infra, Plaintiffs are unable to establish the final element of common business purpose. Thus, the Court need not resolve this issue. (3) Common Business Purpose *11 This factor requires that Plaintiffs show “more than a common goal to make a profit” to satisfy this requirement. Donovan, 723 F.2d at 1554. Here, Plaintiffs argue that “since SPBN made a profit off every dialysis treatment All Florida provided ... All Florida and SPBN's business purpose was completely aligned.” (Pl. Mot. at 6.) This argument, however, clearly runs afoul of Donovan. Id. In fact, Donovan went on to find that no common business purpose where, like here, there was no intermingling of profits. Id. Based on this clear precedent, the Court finds no common business purpose between SPBN and All Florida. The failure of Plaintiffs to establish, as a matter of law, that All Florida and SPBN are a single enterprise means that there is no enterprise coverage for All Florida. Thus, Plaintiffs can obtain no relief against this entity. IV. Conclusion Given that the Court has concluded, as a matter of law, that SPBN is not a joint employer and there is no enterprise coverage for All Florida, the remaining issues raised by Plaintiffs and Defendants All Florida Dialysis Services, Inc. and Majella Wilbanks are rendered moot. Accordingly, it is hereby ORDERED AND ADJUDGED as follows: (1) Defendants Jose Arrascue and South Palm Beach Nephrology, P.A.'s Motion for Summary Judgment (DE 90) is GRANTED. (2) Defendants All Florida Dialysis Services, Inc. and Majella Wilbanks's Motion for Summary Judgment (DE 100) is DENIED AS MOOT. (3) Plaintiffs Sherwil Tafalla and Joemar Sales' Motion for Summary Judgment (DE 103) is DENIED. (4) The Court shall separately enter judgment for Defendants. DONE and ORDERED. All Citations Not Reported in F.Supp.2d, 2009 WL 151159 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 497 of 520 PageID 1133 Tussing v. Quality Resources, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 4350253 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by MARCIE MALAMPHY, and others, similarly situated, Plaintiff, v. ABUNDANT LIFE HOME HEALTH AGENCY, INC. and NELY NIDA VILLAVENCIO, an individual, Defendants., M.D.Fla., July 22, 2016 2009 WL 4350253 Only the Westlaw citation is currently available. United States District Court, M.D. Florida, Tampa Division. Nicole TUSSING, Angela Laboy, Carol Ward, Joann Sadler, and Bradley Siefer, individually and on behalf of others similarly situated, Plaintiffs, v. QUALITY RESOURCES, INC., and Cheryl Mercuris, Defendants. No. 8:09–cv–1833–T–26AEP. | Nov. 25, 2009. Attorneys and Law Firms Christopher D. Gray, Rachael Lynne Wood, Wolfgang M. Florin, Florin & Roebig, PA, Palm Harbor, FL, for Plaintiffs. Jay P. Lechner, Richard C. McCrea, Jr., Greenberg Traurig, LLP*, Tampa, FL, for Defendants. ORDER RICHARD A. LAZZARA, District Judge. *1 Before the Court is Plaintiffs' Motion to Certify Class to Create a Conditional Opt–In Class and Motion to Authorize Notice to Putative Class Members with attachments (Dkt.22), and Defendants' Memorandum in Opposition with attachments. (Dkt.31). After careful consideration of the arguments of counsel, the affidavits, and the file, the Court concludes that the motions should be denied. Plaintiffs bring this action under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. (the FLSA), against their employer, Defendant Quality Resources, Inc. (Quality Resources) and its founder, Defendant Cheryl Mercuris, for overtime compensation. After removal to this Court, Plaintiffs amended their complaint on October 23, 2009, and added more claims. (Dkt. 1 & 20). On that same day, Plaintiff filed this motion to create a conditional opt-in class pursuant to 29 U.S.C. § 216(b). Plaintiffs filed six affidavits in support of creating an opt-in class, four affiants of which are the named Plaintiffs. 1 To date, eight individuals have filed consents to join in this collective action. (Dkts. 5–10, 16 & 17). 1 The two additional affiants are Ana Wooten and JoAnn Capobianco, who have also consented to join in this action. (Dkt. 22, Exs. H & I). FACTUAL BACKGROUND Quality Resources is a “sales and distribution channel” for clients who are in the business of selling subscription- based products directly to customers. (Dkt.22, Ex. C). Quality Resources boasts a “high volume of customer acquisition” by its “greater than 200 licensed agents.” (Dkt.22, Ex. C). The Plaintiffs, ostensibly the “licensed agents,” are employed as Sales Representatives, Verification Representatives, Flippers, and Customer Service Representatives. Plaintiffs assert that all of these job titles are held by similarly situated individuals. Based on this premise, the Plaintiffs seek to certify as a collective action all employees who were call center representatives, or employees who possessed the job duties of a call center representative, for the Defendant within the last three years. The class as defined in the proposed notice reads as follows: Present and Former Employees of Quality Resources, Inc. (Defendant) who worked as a call center representative, such as Sales Representative, Verification Representative, Flipper, and/or Customer Service Representative, or a similar position with a different job title within the last three (3) years. According to Plaintiffs' affidavits, Quality Resources employs at least 300, not 200, call center representatives who cover various daytime and evening shifts. Plaintiffs' six affiants aver that Quality Resources has an extremely WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 498 of 520 PageID 1134 Tussing v. Quality Resources, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 4350253 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 high turnover rate. The affidavits establish that the employees were required (1) to report to work before they began actually getting paid, for example, reporting to work at 8:30 but not being paid until 8:45, 2 (2) to stay beyond the end of their shifts without pay, and (3) to work every other Saturday. All essentially paint a picture of job requirements too numerous to accomplish in any given forty-hour workweek. Overtime pay, calculated at time-and-ahalf, would not begin until the employees had worked 42.5 hours, rather than 40 hours. While the employees' regular compensation also included some non-discretionary bonuses for reaching certain sales quotas, which bonuses were factored into their regular hourly rate, the bonuses were not used in any overtime hour calculations. A call center representative, according to Plaintiffs' conclusory statement, holds a non- exempt status under the FLSA. 2 According to Plaintiffs' affiants, Quality Resources did not use a time clock for employees, but instead, managers were responsible for keeping track of employee work time. *2 Plaintiff desires to certify an opt-in collective class based on the obvious benefits of the court's facilitated notice, as well as the aspects of judicial economy in streamlining the proceeding on common issues of law and fact. To that end, Plaintiffs assert that the all of the job titles listed in the proposed notice are similarly situated. Defendant takes the opposite view____that the job titles and corresponding job duties are not similar. Defendants contend first that Plaintiffs' affidavits are “cookie cutter” and not substantial or detailed. Second, Defendant argues that because Plaintiffs have included both non-exempt and exempt employees, the statutory exemption cannot be determined on a class-wide basis. Specifically, Defendant claims that the statutory exemption does not turn on the job duties performed but on the amount of each employee's earnings and the ratio of his or her commissions to that particular employee's compensation. Each potential class member's total compensation varied based on the varied commissions received, which in turn depended on the individual's job position, shift, and room assignment. Defendant filed a counteraffidavit of the Director of Human Resources of Quality Resources. The affidavit sets out a very detailed structure of the job requirements for the various job titles and the complicated pay provisions for each of the positions and the contingencies that affect the differing wages. ANALYSIS The Eleventh Circuit has held in collective actions under the FLSA that plaintiffs must make substantial, class-wide allegations and provide evidentiary support through detailed allegations, affidavits, or depositions. See Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir.1996). The determinative issue is often, as is the case here, whether the group of employees are similarly situated, sufficient to create the opt-in class. The positions do not have to be identical, just similar. Id. at 1096. Thus, “similarly” has been defined not by what it means but what it does not mean. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259–60 (11th Cir.2008). The Eleventh Circuit has reiterated in Morgan, that before this Court approve notice to a collective class, it should “satisfy itself that there are other employees ... who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job requirements and with regard to their pay provisions.” 551 F.3d at 1261 (quoting Dyback v. State of Florida Dep't of Corr., 942 F.2d 1562, 1567 (11th Cir.1991)). The proper legal standards for determining whether a group of employees should be certified as a collective group starts with a finding of fact based on a suggested two-step analysis. Morgan, 551 F.3d at 1260–61. At the beginning stage, as here, the standard is “not particularly stringent,” but “more than ‘only counsel's unsupported assertions that FLSA violations [are] widespread and that additional plaintiffs would come from other stores.’ “ Id. The first step is called “conditional certification” and the second stage only comes into play after the employer moves for decertification. Id. at 1261. Having set forth the two stages, the Court now will analyze whether, on this record, the Plaintiffs have set forth a reasonable basis upon which to certify a collective action. *3 First, the Court finds that Plaintiffs' six affidavits are not substantial and detailed enough to satisfy this Court that a reasonable basis exists for conditional certification. 3 Plaintiffs' affidavits are largely the same affidavit signed by six different employees, with few minor differences and the hope that all jobs will be considered fungible. All job positions—the Sales Representative, the WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 499 of 520 PageID 1135 Tussing v. Quality Resources, Inc., Not Reported in F.Supp.2d (2009) 2009 WL 4350253 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Verification Representative, the Flipper, Quality Control, and the Customer Service Representative—are merged into one job description—a call center representative. This definition leads to the incredible conclusion that all of the 200 or 300 or more employees of Quality Resources hold the exact same job. Based on these six affidavits, it would appear that virtually every employee held the same job in the company and would therefore qualify as an opt-in Plaintiff. A reading of the opposing affidavit renders this conclusion implausible. The Court therefore is not satisfied that the Plaintiffs have provided sufficient evidence through the six affidavits that a conditional class is warranted, particularly in view of the opposing affidavit of Quality Resources. 3 Courts have denied certification based on the insufficiency of the affidavits. See Rappaport v. Embarq Mgmt. Co., No. 6:07–cv–468–Orl–19DAB, 2007 WL 4482581 (M.D.Fla. Dec.18, 2007) (listing many cases across the Middle and Southern District Courts that have denied conditional certification based on conclusory allegations); see also Gomez v. United Forming, Inc., No. 6:09–cv–576–Orl–31GJK, 2009 WL 3367165 (M.D.Fla. Oct.15, 2009); Cartner v. Hewitt Assoc., LLC, No. 6:09–cv1293–Orl–31DAB, 2009 WL 3245482 (M.D.Fla. Oct.7, 2009); Biondolillo v. Daytona Beach Kennel Club, Inc., No. 6:08–cv– 1964–Orl–22KRS (M.D.Fla. Aug. 18, 2009). In addition to the woefully insufficient affidavits, the Court further finds that the mixing of both exempt and non-exempt employees in a class does not lend itself to proceeding by way of a conditional class because it is overbroad. See Butler–Jones v. Sterling Casino Lines, L.P., No. 6:08–cv–1186–Orl–35DAB, 2008 WL 5274384, *7 (M.D.Fla. Dec.18, 2008). In companies where individuals holding a particular job title are classified as exempt employees and others, non-exempt, and “still others fluctuate quarterly depending on their specific duties,” the desirability of using conditional certification has not been established. Tyler v. Payless Shoe Source, Inc., No. 2:05–cv–33F(WO), 2005 WL 3133763, *5–6 (M.D.Ala. Nov. 23, 2005). Not only are non-exempt and exempt employees proposed members of the class, but, according to the counteraffidavit, the pay provisions for hourly and commissioned rates vary greatly dependent not only upon types of sales and job title, but also upon the particular shift worked. This factor calls into question whether the employer has met the requirements applicable to the exemption of section 7(i), which pertains to certain retail or service establishment employees who are paid on a commission basis. In any event, because both exempt and non-exempt employees may be members of the proposed conditional class as defined, the Court must deny certification of the class. It is therefore ORDERED AND ADJUDGED as follows: (1) Plaintiffs' Motion to Certify Class to Create a Conditional Opt–In Class and Motion to Authorize Notice to Putative Class Members (Dkt.22) are DENIED without prejudice. DONE AND ORDERED. All Citations Not Reported in F.Supp.2d, 2009 WL 4350253 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 500 of 520 PageID 1136 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Eberline v. Media Net, L.L.C., 5th Cir.(Miss.), January 21, 2016 527 F.2d 1308 United States Court of Appeals, Fifth Circuit. W. J. USERY, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. PILGRIM EQUIPMENT COMPANY, INC., et al., Defendants-Appellees. No. 74-2909. | March 3, 1976. Synopsis Proceeding was brought by Secretary of Labor challenging independent contractor status assigned by related corporations to approximately 60 female operators of laundry pickup stations. The United States District Court for the Southern District of Texas, James L. Noel, Jr., J., concluded that operators had been correctly classified as nonemployees for wage and hour purposes under Fair Labor Standards Act and denied relief, and Secretary appealed. The Court of Appeals, Clark, Circuit Judge, held that where operators were not allowed to control any meaningful portion of businesses they allegedly ran, related corporations managed major variables which determined each operator's profit, substantially all risk capital was supplied, there was no operator who as economic entity was capable of doing business elsewhere, and no unique skill or initiative was required of operators, degree of dependence by operators on related corporations mandated conclusion that operators were employees for purposes of Fair Labor Standards Act. Reversed and remanded. West Headnotes (11) [1] Labor and Employment Fair Labor Standards Act Purpose of Fair Labor Standards Act is to eliminate low wages and long hours and free commerce from interferences arising from production of goods under conditions that were detrimental to health and well-being of workers. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 9 Cases that cite this headnote [2] Labor and Employment Independent Contractors In determining whether personnel are independent contractors or employees for purposes of Fair Labor Standards Act, final and determinative question is whether total of testing involving consideration of degree of control, opportunities for profit or loss, investment in facilities, permanency of relation, and skill required established that personnel are so dependent on business with which they are connected that they come within the Act or are sufficiently independent to lie outside its ambit. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 86 Cases that cite this headnote [3] Labor and Employment Persons in Particular Employments Where related corporations which operated cleaning plants controlled all meaningful aspects of laundry pickup stations including advertising, right to deal with other cleaning plants, price-fixing, and payment arrangements, and operators of such pickup stations had no viable economic status that could be traded to other laundry companies, neither operators' right to hire employees nor right to set hours indicated such lack of control by related corporations as to show that operators were independent contractors for wage and hour purposes under Fair Labor Standards Act. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 14 Cases that cite this headnote Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 501 of 520 PageID 1137 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 [4] Labor and Employment Persons in Particular Employments Minor additional income from work which was not connected with actual business being examined to determine whether independent contractor status that had been assigned to certain operators of laundry pickup stations was correct was not relevant to determination of operators' employee status. 8 Cases that cite this headnote [5] Labor and Employment Persons in Particular Employments Lease requirement that operators of laundry pickup stations accept responsibility for bad check and theft losses did not show their independence from related corporations which operated cleaning plants so as to render operators independent contractors for wage and hour purposes under Fair Labor Standards Act, but rather indicated that corporation chose to place a burden on its operators. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 2 Cases that cite this headnote [6] Labor and Employment Persons in Particular Employments Transaction by which operators of laundry pickup stations were required to “purchase” cleaning charge values in clothing already on hand at pickup station when they took over operation did not demonstrate operators' alleged independent contractor status through investment of risk capital but was actually nothing more than method of settling accounts between outgoing and incoming operators. 5 Cases that cite this headnote [7] Labor and Employment Persons in Particular Employments Where contract between related corporations which operated cleaning plants and operators of laundry pickup stations were for one year and routinely renewed, many operators had previously served as employees of corporations and were performing essentially same functions as operators, and not a single operator was shown to be capable of terminating relation and taking her organization to another laundry, permanent nature of relation indicated dependence rather than independent contractor status despite operators' subjective satisfaction with their relationship. 8 Cases that cite this headnote [8] Labor and Employment Independent Contractors and Their Employees Routine work which requires industry and efficiency is not indicative of independence and nonemployee status. 27 Cases that cite this headnote [9] Labor and Employment Independent Contractors Neither contractual recitations nor subjective intent can mandate outcome of cases involving employee status under Fair Labor Standards Act. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 14 Cases that cite this headnote [10] Labor and Employment Employers Included In deciding whether operators of laundry pickup stations were employees for purposes of Fair Labor Standards Act, ultimate criteria were to be found in purpose of Act, which is intended to protect those whose livelihood is dependent upon finding employment in business of others. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. 7 Cases that cite this headnote [11] Labor and Employment Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 502 of 520 PageID 1138 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Persons in Particular Employments Where operators of laundry pickup stations were not allowed to control any meaningful portion of businesses they allegedly ran, related corporations which operated cleaning plants managed major variables that determined each operator's profit, all risk capital was supplied by corporations, relationship was clearly permanent and there was no operator who as economic entity was capable of doing business elsewhere, and no unique skill or initiative was required of operators, degree of dependence by operators on corporations mandated conclusion that operators were “employees” for wage and hour purposes under Fair Labor Standards Act. Fair Labor Standards Act of 1938, § 3(e, g), 29 U.S.C.A. § 203(e, g). 69 Cases that cite this headnote Attorneys and Law Firms *1310 William J. Kilberg, Sol. of Labor, Donald S. Shire, Carin Ann Clauss, Assoc. Sol., U.S. Dept. of Labor, Washington, D.C., George T. Avery, William E. Everheart, Atty., Reg. Sol., U.S. Dept. of Labor, Dallas, Tex., Sandy McCormack, U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellant. William Key Wilde, Ron D. Daugherty, Houston, Tex., for defendants-appellees. Appeal from the United States District Court for the Southern District of Texas. Before WISDOM, CLARK and RONEY, Circuit Judges: Opinion CLARK, Circuit Judge: The Secretary of Labor challenges the independent contractor status assigned to approximately 60 women operators of laundry pick-up stations by 10 related corporations, which we group here under the common appellation Pilgrim. 1 In capsule, each operator works at a separate location to which customers bring items to be cleaned. Pilgrim picks up, cleans and returns the items. The operator then makes delivery to the customer and collects the cleaning price. 1 The named defendants in this action include: Pilgrim Equipment Company, Inc., a corp.; Pilgrim Convenience, Inc., a corp.; R.F.S., Inc., No. 10, a corp., d/b/a Pilgrim Laundry Co. No. 18; Pilgrim Laundry Co. No. 5, Inc., a corp.; R.F.S., Inc. No. 2, a corp., d/b/a Pilgrim Laundry Co. No. 8; Tower Development Corp., a corp., d/b/a Pilgrim Laundry Co. No. 16; R.F.S., Inc., No. 5, a corp., d/b/a Pilgrim Laundry Co. No. 11; R.F.S., Inc. No. 8, a corp., d/b/ a Pilgrim Laundry Co. No. 15; Pilgrim Laundry Co. No. 3, Inc., a corp.; and R.F.S., Inc. No. 7, a corp., d/ b/a Pilgrim Laundry Co. No. 14. Concluding from undisputed facts that Pilgrim had correctly classified these operators as nonemployees for wage and hour purposes under the Fair Labor Standards Act (FLSA), 2 the district court denied the relief sought by the Secretary's complaint. Although it framed its findings in the proper indicia for testing statutory employee status, the district court's conclusion of what the frame enclosed failed to give sufficient emphasis to the all- pervasive determinant economic dependence. The legal conclusion reached by the trial court from its factual findings was, therefore, in error. We reverse and remand for a determination of the appropriate relief for these employees. 2 29 U.S.C. s 201 et seq. [1] The purpose of the FLSA is to ‘eliminate low wages and long hours' and ‘free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well- being of workers.’ 3 The statutory scheme makes *1311 the wage and hour provisions applicable to ‘employees.’ Employee is defined as one ‘employed,’ and ‘employ’ is defined as ‘to suffer or permit to work.' 4 Given the remedial purposes of the legislation, an expansive definition of ‘employee’ has been adopted by the courts. 3 Rutherford Food Corp. v. McComb, 331 U.S. 722, 727, 67 S.Ct. 1473, 1475, 91 L.Ed. 1772 (1947). 4 29 U.S.C. s 203(e) & (g). As the federal social security legislation is an attack on recognized evils in our national economy, a constricted interpretation of the phrasing by the courts would not Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 503 of 520 PageID 1139 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 comport with its purpose. Such an interpretation would only make for a continuance, to a considerable degree, of the difficulties for which the remedy was devised and would invite adroit schemes by some employers and employees to avoid the immediate burdens at the expense of the benefits sought by the legislation. 5 5 United States v. Silk, 331 U.S. 704, 712, 67 S.Ct. 1463, 1467, 91 L.Ed. 1757 (1947). The common law concepts of ‘employee’ and ‘independent contractor’ have been specifically rejected as determinants of who is protected by the Act. 6 The test is not one which allows for a simple resolution of close cases. However, the lesson taught by the Supreme Court's 1947 trilogy 7 is that any formalistic or simplistic approach to who receives the protection of this type legislation must be rejected. in Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947), the Court held that ‘in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service.' 8 6 The terms ‘independent contractor,’ ‘employee,’ and ‘employer’ are not to be construed in their common law senses when used in federal social welfare legislation. N.L.R.B. v. Hearst, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) (for purposes of the National Labor Relations Act); United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947), and Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947) (for purposes of employment taxes on employers under the Social Security Act, as amended); and Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (for purposes of the Fair Labor Standards Act). Rather, their meaning is to be determined in light of the purposes of the legislation in which they were used. Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 299 (5th Cir. 1975). 7 Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947); Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947). 8 332 U.S. at 130, 67 S.Ct. at 1550 (emphasis added). [2] Five considerations have been set out as aids to making the determination of dependence, vel non. They are: degree of control, opportunities for profit or loss, investment in facilities, permanency of relation, and skill required. 9 No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor- economic dependence. See Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir. 1975). The five tests are aids-tools to be used to gauge the degree of dependence of alleged employees on the business with which they are connected. It is dependence that indicates employee status. Each test must be applied with that ultimate notion in mind. More importantly, the final and determinative question must be whether the total of the testing establishes the personnel are so dependent upon the business with which they are connected that they come within the protection of FLSA or are sufficiently independent to lie outside its *1312 ambit. Reviewing each of the five indicia used by the lower court, with the emphasis placed as required, compels the ultimate conclusion that the pick-up station operators in this case were dependent on Pilgrim and, therefore, come within the Act. It also discloses that the district court's factor-by- factor resolutions were wrong. 9 United States v. Silk, 331 U.S. 704, 716, 67 S.Ct. 1463, 1469, 91 L.Ed. 1757 (1947). See, Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947); Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); N.L.R.B. v. Hearst, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). Although several of these cases deal with similar but different statutes, Rutherford adopts decisions under the ‘Labor and Social Security Acts' as ‘persuasive in the consideration of a similar coverage under the Fair Labor Standards Act.’ 331 U.S. at 723, 67 S.Ct. at 1474. I. Control [3] The district court determined that operators are largely independent of their manager's control. However, a look at the rules and restrictions on the operators contained in the written lease agreement and the undisputed facts shows the operators are totally dependent upon Pilgrim to provide direction or control in every major aspect of their work. Pilgrim handles substantially all advertising for the stations. It sets the prices charged for all but a few nonstandard items. It requires that operators deal exclusively with WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 504 of 520 PageID 1140 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Pilgrim Laundries. 10 It prevents the assignment of the lease arrangements which govern the parties' respective obligations. It requires that each operator remit a certain amount of money every day for the cleaning work done by Pilgrim. It requires that accounts be settled between Pilgrim and each operator once a week. It prevents operators from posting any signs on the premises unless prior permission is given. It prevents any improvement to the premises without permission. The lease is drawn by Pilgrim and the only negotiated item is the percentage of income the operator would retain, an item which is usually unilaterally imposed at the outset by Pilgrim and then negotiated on the anniversary of each contract. Pilgrim maintains the right to specifically enforce or declare the contract void if any covenant is not performed by the operator. The contract has a duration of 1 year. Each operator is given the right to set her own hours, hire helpers and is not subject to inspection of supervision in the minor details of her daily operation. A sign posted on the front door of each pick-up station, however, states the standard Pilgrim Laundry hours. With minor exceptions, all operators testified that they followed these hours. Some of the operators hired helpers or substitutes from time to time and some did not. 10 See note 1, supra. In the total context of the relationship neither the right to hire employees nor the right to set hours indicates such lack of control by Pilgrim as would show these operators are independent from it. In reality, even the hours are ‘controlled’ by Pilgrim. It is not significant how one ‘could have’ acted under the contract terms. The controlling economic realities are reflected by the way one actually acts. 11 Moreover, women who work at home, completely free of specific hour requirements, have been found to be employees for purposes of this Act. 12 Occasional exercise of the right to hire helpers also has not been found sufficiently indicative of independence to allow a finding of nonemployee status. 13 11 See Mednick v. Albert Enterprises, 508 F.2d 297, 302-03 (5th Cir. 1975); Mitchell v. John R. Cowley & Bro., Inc., 292 F.2d 105, 109 (5th Cir. 1961). 12 Goldberg v. Whitaker House Cooperative, 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961). 13 Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 301 (5th Cir. 1957); Mitchell v. Strickland Transportation Co., 228 F.2d 124, 128 (5th Cir. 1955). The most significant conclusion from all these facts is that the operators cannot exert control over any aspect of their business lives independent of Pilgrim. They have no viable economic status that can be traded to other laundry companies and the lack of supervision over minor regular tasks cannot be bootstrapped into an appearance of real independence. 14 Control is only significant when it shows an individual exerts such a control over a meaningful part of the *1313 business that she stands as a separate economic entity. All meaningful aspects of this business- advertising, right to deal with other cleaning plants, price fixing, payment arrangements-are controlled by Pilgrim. 14 Mitchell v. John R. Cowley & Bro., Inc., 292 F.2d 105, 108 (5th Cir. 1961). II. Opportunity for Profit or Loss The lower court concluded that the opportunities for profit or loss were the same as in any independent business. The major determinants of the amount of profit which an operator could make, however, were directly controlled by Pilgrim. Since the operators were paid on a percentage basis, the amount of business done by an operator governs total profit. The lower court found that convenience of hours, extra service provided, and rapport with customers were factors which affected profits and were within the control of each operator. However, price, location, and advertising-determinants of customer volume at least as vital as those governed by the operators- are regulated by Pilgrim. [4] The record shows some operators sold ties, wigs, or took in special work in their pick-up stations. These sales minimally supplemented their income. Such minor additional income made from work which is not connected with the actual business under examination is not relevant to a court's determination of employee status. 15 15 Brennan v. Partida, 492 F.2d 707, 709 (5th Cir. 1974). [5] Finally, except for being responsible for bad-check and theft losses, there is no way any of the operators can suffer a loss in their alleged independent contractor operations. Each week they receive a percentage of the total money taken in by their pick-up station. The lease requirement-which the record does not show was WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 505 of 520 PageID 1141 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 ever subject to negotiation-that the operators accept responsibility for bad-check and theft losses does not show independence. Rather it shows that Pilgrim chose to place this added burden on its operators. Persons with similar pecuniary obligations have been found to be employees. 16 16 Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 301 (5th Cir. 1975), citing, Hodgson v. Pulley, 20 W.H. Cases 1046 (S.D.Ohio, 1972). No opportunity for loss of the capital investment in the station's operation and control by Pilgrim of major determining factors of profit indicate that the operators are dependent upon Pilgrim, and therefore, that they are employees. III. Investment [6] The lower court found that the operators' ‘investment’ was modest, but concluded that it was substantial from the point of view of each operator. The investment referred to by the lower court was the requirement that each operator ‘purchase’ the cleaning charge values in the clothing already on hand at the pick-up station when she took over the operation. The ‘investment’ transaction bears no direct relationship to the overall cost of operating the station. It is actually an assumption of accounts receivable. No risk capital whatsoever is involved. 17 17 See Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 301 (5th Cir. 1975); Hodgson v. Pulley, 20 W.H. Cases 1046 (S.D.Ohio, 1972); Hodgson v. Sureway Cleaners, 20 W.H. Cases 358 (E.D.Cal.1971). At the outset of the business relationship between Pilgrim and each operator, the new operator is required to pay the outgoing operator (or Pilgrim if Pilgrim had already reimbursed the outgoing operator) the total amount which the outgoing operator had paid Pilgrim to clean clothes not yet picket up by customers. This ‘investment’ varies from 500 to 1500 dollars. Often it is financed by Pilgrim, and its return is guaranteed. As customers pick up their clothes and pay for them, the operator recoups her ‘investment.’ Any clothes which remain in the station for 6 months are purchased by Pilgrim. Therefore, within 6 months the total ‘investment’ is recovered. In *1314 addition, when the operator terminates her arrangement with Pilgrim, she will be reimbursed for all monies paid by the operator to Pilgrim for clothing not yet retrived and paid for by customers. This entire ‘investment’ plan is nothing more than a method of settling accounts between outgoing and incoming operators. All investment or risk capital is provided by Pilgrim. It furnishes the station, cash register, fixtures, security devices, counters, racks, hangers, bags, tags, receipts, utilities, telephone, and liability insurance. The 10 dollar per-year rental set up for these capital items is so nominal as to be de minimis. But for Pilgrim's provision of all costly necessities, these operators could not operate. Their total dependency upon Pilgrim is confirmed rather than denied by these facts. IV. Permanency [7] The lower court found that although many operators had enjoyed a longtime relationship with Pilgrim, the permanency of the relationship evidenced satisfaction with and not dependence on Pilgrim. Most, if not almost all, long time employees are satisfied with their employment. Regardless of subjective satisfaction, the permanent nature of the relations between Pilgrim and these operators indicates dependence. The contract involved here is for a 1 year duration and is routinely renewed. Many of the operators have previously served as Pilgrim's employees and are performing essentially the same functions as operators. 18 Not a single operator is shown to be capable of terminating relations with Pilgrim and taking her organization to another laundry. 19 The operators have nothing to transfer but their own labor. The plain fact of the matter is that every one of them is dependent upon Pilgrim's continued employment. 18 See Wirtz v. Welfare Finance Corp., 263 F.Supp. 229 (N.D.W.Va.1967). 19 See Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477, 91 L.Ed. 1772 (1947); Bartels v. Birmingham, 332 U.S. 126, 132, 67 S.Ct. 1547, 1551, 91 L.Ed. 1947 (1947). V. Skill [8] The lower court correctly concluded from the record that these operators did not need long training or highly developed skills. However, it went on incorrectly to accentuate considerations such as business sense, salesmanship, personality and efficiency concluding that WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 506 of 520 PageID 1142 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 these needed skills were probative of employee status. The key missing ingredient in the lower court's determination is initiative. Routine work which requires industry and efficiency is not indicative of independence and nonemployee status. 20 These operators are unable to exert initiative in the operation of their pick-up stations. All major components open to initiative-advertising, pricing, and most importantly the choice of cleaning plants with which to deal-are controlled by Pilgrim. Much emphasis was placed on the need to keep business records and the need for repport with customers. Minor record- keeping such as personal tax records is not determinative of independent status. Customer rapport is not an ‘initiative’ characteristic and much more closely parallels ‘efficiency.’ But to the extent it does require ‘initiative,’ it is significantly controlled, or at least continuously encouraged, by Pilgrim through the commission-rate payment arrangement. The operators receive a percentage of the money paid for each item cleaned. Obviously, encouraging repeat customers enhances financial reward under this payment scheme. 20 Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); Mitchell v. John R. Cowley & Bro., Inc., 292 F.2d 105, 108 (5th Cir. 1961); Mitchell v. Strickland Transportation Co., 228 F.2d 124, 126-27 (5th Cir. 1955). Operating these laundries requires courtesy to customers, tagging clothes, taking money from customers, paying Pilgrim a set amount each day for cleaning, *1315 settling accounts (getting paid) once a week, occasionally hiring helpers, and correctly reporting tax and Social Security information. The skills and incentives required in the operation of the pick-up stations are valuable. They bring business profits to the operators and to Pilgrim. But many successful employees need these same abilities and perform similar tasks. The bottom line in this enterprise is the business acumen and investment contributed by Pilgrim. The operators were dependent for their livelihood. VI. Other Indicia. [9] We reject both the declaration in the lease agreement that the operators are ‘independent contractors' and the uncontradicted testimony that the operators believed they were, in fact, in business for themselves as controlling FLSA employee status. Neither contractual recitations 21 nor subjective intent 22 can mandate the outcome in these cases. Broader economic realities are determinative. 21 United States v. Silk, 331 U.S. 704, 715, 67 S.Ct. 1463, 1469, 91 L.Ed. 1757 (1947); Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 302 (5th Cir. 1975); Mitchell v. John R. Cowley & Bro., Inc., 292 F.2d 105, 107 (5th Cir. 1961). 22 Brennan v. Partida, 492 F.2d 707, 709 (5th Cir. 1974); Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508 (5th Cir. 1969). [10] In deciding whether these operators are employees for the purposes of the Fair Labor Standards Act, (t)he ultimate criteria are to be found in the purposes of the Act. . . . (T)he Act is intended to protect those whose livelihood is dependent upon finding employment in the business of others. It is directed toward those who themselves are least able in good times to make provisions for their needs when old age and unemployment may cut off their earnings . . . to those who, as a matter of economic reality, are dependent upon the business to which they render service. Mednick v. Albert Enterprises, Inc., 508 F.2d 297, 300 (5th Cir. 1975), quoting, Fahs v. Tree-Gold Co-op Growers, Inc., 166 F.2d 40, 44 (5th Cir. 1948). [11] The overview discloses that these operators are not allowed to control any meaningful portion of the business they allegedly run; Pilgrim manages the major variables which determine each operators profits. The compensation scheme is such that there is never any real risk that an operator will suffer loss. Substantially all risk capital is supplied by Pilgrim. The relationship is fairly permanent and there is no operator who, as an economic entity, is capable of doing business elsewhere. No unique skill or initiative is required of the operators. Proper application of the five indicia, singularly and collectively, indicate substantial dependence on Pilgrim. The Act is designed to protect individuals whose employment status is so dependent on the whims of the employer as to make them submissive to an employer's notion of fair compensation for their labor. The degree of dependence by the operators upon Pilgrim in this case mandates a conclusion that the operators are employees under the FLSA. Therefore, the decision of the lower court WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 507 of 520 PageID 1143 Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (1976) 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 is reversed and the case is remanded to determine the appropriate relief. Reversed. All Citations 527 F.2d 1308, 22 Wage & Hour Cas. (BNA) 783, 78 Lab.Cas. P 33,343 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 508 of 520 PageID 1144 Valdez v. Cox Communications Las Vegas, Inc., Not Reported in F.Supp.2d (2012) 2012 WL 1203726 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Blue Flag – Appeal Notification Appeal Filed by JOSEPH VALDEZ v. COX COMMUNICATIONS LAS VEGAS,, ET AL, 9th Cir., May 10, 2012 2012 WL 1203726 Only the Westlaw citation is currently available. United States District Court, D. Nevada. Joseph VALDEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. COX COMMUNICATIONS LAS VEGAS, INC., Video Internet Phone Installs, Inc., Quality Communications, Inc., Sierra Communications, Co., Defendants. No. 2:09–CV–01797–PMP–RJJ. | April 11, 2012. Attorneys and Law Firms Leon Marc Greenberg, Leon Greenberg Professional Corporation, Las Vegas, NV, Christian James Gabroy, Gabroy Law Offices, Henderson, NV, for Plaintiff. Annette A. Idalski, Chamberlain, Hrdlicka, White, Williams & Martin, Atlanta, GA, Dominica C. Anderson, Ryan A. Loosvelt, Duane Morris, LLP, Laura J. Thalacker, Kirby J. Smith, Malani L. Kotchka, Lionel Sawyer & Collins, Rick D. Roskelley, Montgomery Y. Paek, Littler Mendelson, PC, Howard E. Cole, Jennifer Hostetler, Lewis & Roca, LLP, Las Vegas, NV, for Defendants. ORDER PHILIP M. PRO, District Judge. *1 Before the Court for consideration is Defendant Cox Communications Las Vegas, Inc.'s fully briefed Motion for Summary Judgment on the Issue of Joint Employer Liability (Doc. # 191). By this Motion, Defendant Cox renews its motion for summary judgment under the joint employer liability issue which was the subject of a prior Order of this Court (Doc. # 133). The Court heard argument on the instant motion on November 22, 2011 (Doc. # 305). Count I of Plaintiff's Amended Complaint alleges a FLSA Claim against Defendant Cox. The FLSA requires employers to pay a minimum wage and overtime to employees who are employed in an enterprise engaged in commerce. 29 U.S.C. §§ 206, 207. An employer who violates these provisions is liable to the affected employees for their unpaid wages and overtime compensation, as well as for an equal amount as liquidated damages. Id. § 216(b). The FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Id. § 203(d). Under the FLSA, two or more employers may employ a person jointly. Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1469 (9th Cir.1983), abrogated on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 539 (1985); 29 C.F.R. § 791.2(a). Each joint employer is individually responsible for complying with the FLSA with respect to the entire employment. Bonnette, 704 F.2d at 1469 (citing 29 C.F.R. § 791.2(a)). The Court applies an “economic reality” test to determine whether a joint employment relationship exists. Torres– Lopez v. May, 111 F.3d 633, 639 (9th Cir.1997). Under this test, the Court considers all factors relevant to the particular situation to evaluate the economic reality of an alleged joint employment relationship. Id. Among the factors the Court considers are “ ‘whether the alleged employer (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of payment, (3) determined the rate and method of payment, and (4) maintained employment records,’ “ collectively the Bonnette factors. Moreau v. Air France, 356 F.3d 942, 946–47 (9th Cir.2004) (quoting Bonnette, 704 F.2d at 1470). Because the Court must consider the totality of the circumstances, the inquiry is not limited to the Bonnette factors. Id. Other factors the Court considers include, but are not limited to: (1) whether the work was a specialty job on the production line; (2) whether responsibility under the contracts between a labor contractor and an employer pass from one labor contractor to another without material changes; Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 509 of 520 PageID 1145 Valdez v. Cox Communications Las Vegas, Inc., Not Reported in F.Supp.2d (2012) 2012 WL 1203726 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 (3) whether the premises and equipment of the employer are used for the work, (considering the alleged employee's investment in equipment or materials required for his task, or his employment of helpers); (4) whether the employees had a business organization that could or did shift as a unit from one [worksite] to another; (5) whether the work was piecework and not work that required initiative, judgment or foresight; (6) whether the employee had an opportunity for profit or loss depending upon [the alleged employee's] managerial skill; (7) whether there was permanence [in] the working relationship; and (8) whether the service rendered is an integral part of the alleged employer's business. *2 Torres–Lopez, 111 F.3d at 639–40 (internal citations omitted); see also Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 72 (2d Cir.2003) (listing similar factors). The test is not mechanical and these are not the only factors the Court should consider. Bonnette, 704 F.2d at 1470. Ultimately, the determination is “based upon the circumstances of the whole activity.” Id. (quotation omitted). Both direct and indirect control may demonstrate joint employment. Torres–Lopez, 111 F.3d at 643. “[T]he concept ofjoint employment should be defined expansively under the FLSA.” Torres–Lopez, 111 F.3d at 639. The economic reality test “is intended to expose outsourcing relationships that lack a substantial economic purpose.” Jacobson v. Comcast Corp., 740 F.Supp.2d 683, 689 (D.Md.2010). However, “it is manifestly not intended to bring normal strategically oriented contracting schemes within the ambit of the FLSA.” Id. (quotation omitted). Whether a party is an employer for purposes of the FLSA is a question of law for the Court. Torres at 638. To find no joint employment as a matter of law at the summary judgment stage, the Court “would have to conclude that, even where both the historical facts and the relevant factors are interpreted in the light most favorable to plaintiffs, defendants are still entitled to judgment as a matter of law.” Zheng, 355 F.3d at 76. The Court may find no joint employment even if some factors weigh in favor of finding joint employment. Id. 1. The Bonette Factors a. Power to Hire and Fire Employees The evidence shows that each individual contractor decided which employees to hire and fire. (MSJ, Ex. A at 57–58.) However, no contractor employee could receive a badge from Cox and work on a Cox project unless that employee met Cox's standards, which included a background check, a drug test, and a proficiency test. (MSJ, Ex. A at 64.) The contractor performed the background check and drug test and reported to Cox that those two tests were performed satisfactorily. (MSJ, Ex. D at 69, 71.) The proficiency test was given on Cox's premises. (MSJ, Ex. A at 202.) If Cox indicated an installer was not permitted to perform work on Cox projects, either prior to beginning work or at any time during the installer's employment, the contractor had a choice whether to retain that employee for other, nonCox related work. However, practically speaking, if Cox decided an installer could not work on Cox projects, that meant termination for installers at VIP which obtained 100% of its work from Cox. (MSJ, Ex. D at 82.) Additionally, although Sierra did work for another company named Charter, that work was done only in Reno. (MSJ, Ex. H at 2–3.) Consequently, if Cox indicated an installer in Las Vegas could not do work for Cox, that meant de facto firing of the installer in Las Vegas, even if technically the contractor could choose to retain the employee. Many, but not all, Cox contractors have ceased business entirely after they lose the contract with Cox. (Sealed Exs., Ex. 1.) *3 Plaintiff also avers that Cox identified by name certain installers Cox thought were not performing well. (Opp'n, Ex. E at 4 .) If Cox indicated displeasure with a particular installer, the contractor would terminate that person because contractors who did not meet Cox's performance standards would be terminated by Cox. (Id.) However, Valdez does not state that Cox ordered a contractor to terminate any particular employee or that a contractor did so in response to such a command. Rather, Valdez avers that contractors would terminate an individual installer WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 510 of 520 PageID 1146 Valdez v. Cox Communications Las Vegas, Inc., Not Reported in F.Supp.2d (2012) 2012 WL 1203726 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 who Cox identified as a poor performer out of a need to keep Cox happy with the contractor. (Id.) Plaintiff also contends Cox maintains a blacklist of installers who have filed FLSA claims against Cox, and that Cox does not permit contractors to hire these individuals. Plaintiff has no evidence supporting this allegation, and offers only a newspaper article in support of this contention, which is hearsay. Moreover, Cox employees have stated under oath there is no blacklist. b. Supervise and Control Employee Work Schedules or Conditions of Payment Cox provides each contractor with its work orders for the next work day. It is up to the contractor to decide which installer will service which customer, and what each installer's route will be for any particular day. The contractors, not Cox, train the installers. Cox has presented evidence that Cox did not monitor individual installers through the TOA computer system, a web-based computer program through which Cox scheduled service to customers and doled out installation projects to contractors. (MSJ, Ex. K at 95.) Cox acknowledges it has the capability of daily monitoring, but contends it does not do so. (Id.) However, Plaintiff avers that Dennis Ruiz (“Ruiz”), Cox's contract coordinator in Las Vegas, did track the progress of every installation job and every installer throughout the course of each work day. (Opp'n, Ex. A at 8.) According to Plaintiff, if Ruiz was not satisfied with the progress of a particular job, he would call the contractor's manager and complain. (Id.) According to Plaintiff, when Plaintiff was a Sierra manager, Ruiz would send emails to him throughout the work day regarding the “currently ongoing work of individual installers of Sierra and the progress or more typically the lack of progress those installers were making on completing their assigned jobs for the day.” (Opp'n, Ex. E at 2–3.) Ruiz's emails were considered commands to which the contractor responded immediately and would send other personnel to assist with the install. (Id.) Plaintiff avers that while he was a supervisor with Sierra, he attended meetings with Ruiz four times a week. (Opp'n, Ex. A at 6.) According to Plaintiff, at those meetings Cox first would meet with all contractors and advise which contractor were performing well and which were not. (Id.) Following the collective meetings, Ruiz would meet with each contractor's managers, at which Ruiz would “identify and discuss each contractor's individual installers who he had identified as being poor performers.” (Id. at 7.) Contractors who kept employing such employees would not receive further work from Cox, and Cox's individual assessment of particular installers resulted in installers losing their jobs with the contractors. (Id.) *4 Valdez also avers that installers were expected to make sales for Cox, and if they did not do so they would not last long in their jobs. (Opp'n, Ex. J at 5.) According to Valdez, Cox monitored contractors for sales numbers, and if the contractor did not make sufficient sales, it lost its contract with Cox. (Id.) According to Valdez, “[a]n installer who made no sales or very few sales for Cox would not keep their job for very long.” (Id.) Cox scheduled the installations with the customer. (Opp'n, Ex. A at 9.) The contractors had no choice about when to schedule installations. (Id.) By contract, Cox requires contractor employees comply with Cox's Code of Excellence, which applies to Cox employees. (Opp'n, Ex. F at 14; Sealed Exs., Ex. 2.) Cox does not discipline the contractor employees directly. However, Cox complains to the contractors if a customer calls Cox to complain. According to Plaintiff, Cox also evaluates each contractor on a weekly basis, and comments on the performance of individual installers. c. Rate and Method of Payment Cox does not control the method of payment to contractor employees. Cox paid different rates to each contractor, and each contractor in this case paid different rates to their installers. There is no evidence Cox dictated any particular rate or pay structure to any contractor. d. Maintain Employment Records Each contractor maintains employment records on the installers. The only potential employment record Cox maintains is a database which contains the installers' name and other identifying information which is gathered as part of the badging process. Cox has declined to turn over this database, and in recent Orders, this Court has sustained their objections to doing so. 2. Other Factors WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 511 of 520 PageID 1147 Valdez v. Cox Communications Las Vegas, Inc., Not Reported in F.Supp.2d (2012) 2012 WL 1203726 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 a. Integral Part of Business Plaintiff attempts to analogize installation work to the deboning workers in a slaughterhouse in Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947). The Court finds this an imperfect analogy. This factor makes the most sense in integrated operations, like work on an assembly line. In Rutherford, the workers' tasks were part of a “series of interdependent steps.” 331 U.S. at 725–26. That is not the case with the cable installations. Each installation is a series of tasks unrelated to any other project or process, all performed by the installer at a single location. An installation is not part of other, interdependent tasks performed by Cox employees. b. Responsibility Under Contracts Between Contractor and Employer Pass from One Contractor to Another Without Material Changes Cox offers the contracts to contractors on a non- negotiable take it or leave it basis. (Opp'n, Ex. C Kennedy Dep. at 64.) Pursuant to the contract, work is performed only on an as needed basis in Cox's sole discretion. (Opp'n, Ex. F at 3.) The contract does not guarantee to the contractor any particular quantity or frequency of work. (Id.) Cox may terminate the agreement on fourteen days notice without cause. (Id. at 7.) *5 However, Cox presented evidence it does not pay the same rates to every contractor. Although there may be some movement among installers when a contractor loses its contract, that may be more indicative of a worker looking for a job within his skill set than a lack of material change in contractors. To compare to Rutherford, there the employer kept changing the identity of the individual contractor who hired the boning employees. But the same terms applied and the same employees continued to provide the same work in the same location on the employer's premises. c. Premises and Equipment The only time installers are on Cox's premises is for the proficiency test and badging. Thereafter, the installer obtains work orders and equipment from the contractor and returns to the contractor to close out jobs and equipment. The contractor provides the employee with a uniform, although Cox provides the badge identifying the installer as working for a contractor for Cox. Plaintiff argues the customer's home is Cox's premises because the contractor is there only because allowed to be by Cox. Plaintiff likens this to leased premises. However, customer homes are not Cox premises. Cox does not own or lease such premises. Cox does not provide installers with equipment other than basic parts used for the install. The installer or contractor provides the necessary tools and vehicle. d. Employee Business Organization According to Plaintiff, Cox installers move from contractor to contractor. (Opp'n, Ex. J at 4.) Plaintiff gives the specific example of Defendant VIP's owners, who previously had worked for another Cox contractor that lost its Cox contract. (Id. at 4–5.) These individuals formed VIP and hired approximately half of the installers who worked for the company that went out of business. (Id.) Contractors who lose their contract with Cox do not tend to stay in business in Las Vegas. Of the 19 contractors Cox used, only 8 are currently still have active corporate status, while 10 have permanently revoked, withdrawn, or dissolved their corporate status in Nevada. (Sealed Exs. (Doc. # 205), Ex. 1.) However, in this case, Sierra and VIP remained in business even after Cox revoked their contracts. Further, installers did not simply shift automatically to the new contractor. Rather, installers, including Plaintiff, had to apply for a job at each company. e. Skill Level Cox describes installers as skilled workers. Cox required workers to pass a proficiency exam to perform installations for Cox. Plaintiff avers Cox installers “need not be particularly skilled or have the sort of experience possessed by journeymen electricians.” (Opp'n, Ex. J at 3.) Contractors hire trainers whom they train for approximately 30 days before they are sent out on their own, even if they have no prior experience. (Id.) f. Opportunity for Profit or Loss from Managerial Skill The quantity, quality, and schedule of work for each contractor is set by Cox. However, Cox argues the individual employee had the opportunity for profit within these parameters based on avoiding chargebacks, which basically were deductions from a quality bonus under WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 512 of 520 PageID 1148 Valdez v. Cox Communications Las Vegas, Inc., Not Reported in F.Supp.2d (2012) 2012 WL 1203726 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 the contract for any tasks left unperformed or which were done improperly. Cox also argues there was room for advancement within each contractor, as shown by Plaintiff's promotion to a supervisory position at Sierra. g. Permanence in the Working Relationship *6 Plaintiff has presented evidence that installers at the various contractors in Las Vegas worked exclusively for Cox. If one contractor lost its contract, the installers could, and many would, either start their own contracting company or move to another contractor. However, Plaintiff has not presented evidence like that in Rutherford where the exact same employees continued to do the same work in the same location, and there really was just a name change of the contractor supervisor. Here, if a contractor lost its contract, any installer wishing to work on Cox projects had to apply to another contractor and would work on Cox projects only if Cox entered into an agreement with that contractor and assigned it work under that contract. h. Other Factors Plaintiff argues another factor the Court should consider is Cox's past history of similar FLSA violations. While such evidence may be relevant to show the contractors are sham economic entities designed to avoid FLSA liability for Cox, Plaintiff presents no probative issue on the point. Defendants argue every case to address cable installers has found the cable company is not the installers' joint employer. See Jean–Louis, Doc. # 275 (granting summary judgment of no joint employment for cable installers under similar facts); Jacobson, 740 F.Supp.2d at 689–93 (same); Smilie v. Comcast Corp., 07–CV– 3231 (N.D.Ill. Feb. 25, 2009) (unpublished) (same); Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1317–18 (S.D.Fla.2001) (finding no joint employment at summary judgment where employee failed to show purported joint employer “checked the work on a daily basis, gave work commands or otherwise intervened in the performance of the installers' duties, on a daily basis or anytime”); Herman v. Mid–Atlantic Installation Servs., Inc., 164 F. Supp 2d 667 (D.Md.2000) (granting summary judgment on issue of no joint employment for cable installers; however, installers in that case were independent contractors for company which contracted with cable company); see also Zhao v. Bebe Stores, Inc., 247 F.Supp.2d 1154, 1160–61 (C.D.Cal.2003) (holding garment store was not joint employer where company that employed sewing employees was a going concern with its own facilities, equipment, employees, and supervisors; quality control did not amount to control or supervision of employees). Although the details are sometimes different, every court to address this issue ultimately has found no joint employment for cable installers at the summary judgment stage under factual circumstances fairly similar to those before this Court. In sum, the Court concludes that even when both the historical facts and relevant factors cited above are interpreted in the light most favorable to Plaintiff, Defendant Cox is still entitled to summary judgment as a matter of law. IT IS THEREFORE ORDERED that Defendant Cox Communications Las Vegas, Inc.'s Motion for Summary Judgment on the Issue of Joint Employer Liability (Doc. # 191) is GRANTED. All Citations Not Reported in F.Supp.2d, 2012 WL 1203726 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 513 of 520 PageID 1149 Walker v. Darby, 911 F.2d 1573 (1990) 5 IER Cases 1342 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Follow by Hornberger v. American Broadcasting Companies, Inc., N.J.Super.A.D., May 21, 2002 911 F.2d 1573 United States Court of Appeals, Eleventh Circuit. Jessie WALKER, Plaintiff-Appellant, v. Thomas E. DARBY, Hugh L. Robinson, Jr., and Kenneth Day, Defendants-Appellees. No. 89-7199. | Sept. 20, 1990. Synopsis Postal employee brought action against supervisors, alleging that they had intercepted his conversations with third parties in violation of antiwiretap statute. The United States District Court for the Northern District of Alabama, No. CV-88-HM-5256-NW, E.B. Haltom, Jr., J., 706 F.Supp. 1467, granted supervisors' motion for summary judgment, and appeal was taken. The Court of Appeals, Peckham, Senior District Judge, sitting by designation, held that genuine issue of material fact whether employee had subjective expectation that conversations were free from interception and whether that expectation was objectively justified under circumstances precluded grant of summary judgment. Reversed and remanded. Edmondson, Circuit Judge, filed concurring opinion. West Headnotes (6) [1] Federal Civil Procedure Burden of Proof Party opposing summary judgment may not rest upon mere allegations or denials in its pleadings; rather, its responses, either by affidavits or otherwise as provided by rule, must set forth specific facts showing that there is genuine issue for trial. Fed.Rules Civ.Proc.Rules 56, 56(c), 28 U.S.C.A. 1303 Cases that cite this headnote [2] Federal Civil Procedure Weight and Sufficiency Mere scintilla of evidence supporting position of party opposing summary judgment will not suffice to defeat summary judgment; there must be enough of a showing that jury could reasonably find for that party. 2864 Cases that cite this headnote [3] Federal Civil Procedure Wiretapping and Electronic Surveillance, Cases Involving Postal employee could raise question of fact regarding supervisors' actual interception of his conversations, for purposes of precluding summary judgment in his action against supervisors under the antiwiretap statute, without proving contents of specific conversations allegedly intercepted. 18 U.S.C.A. § 2511. 15 Cases that cite this headnote [4] Federal Civil Procedure Wiretapping and Electronic Surveillance, Cases Involving For purposes of precluding summary judgment in postal employee's action against supervisors under antiwiretap statute, evidence was sufficient to raise questions of material fact regarding whether supervisors participated in installing intercom or other listening device and whether they in fact intercepted employee's conversations from his work station. 18 U.S.C.A. §§ 2511, 2520. 3 Cases that cite this headnote [5] Federal Civil Procedure Wiretapping and Electronic Surveillance, Cases Involving In order to survive summary judgment in postal worker's action against supervisors under antiwiretap statute, postal employee Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 514 of 520 PageID 1150 Walker v. Darby, 911 F.2d 1573 (1990) 5 IER Cases 1342 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 would have to raise question of fact regarding whether he had subjective expectation that his conversations were free from interception, and whether such expectation was objectively reasonable. 18 U.S.C.A. §§ 2510(2), 2520. 22 Cases that cite this headnote [6] Federal Civil Procedure Wiretapping and Electronic Surveillance, Cases Involving Genuine issue of material fact as to whether postal employee had subjective expectation that conversations taking place near his work station were free from electronic interception by supervisors and whether such expectation was objectively justified under circumstances precluded grant of summary judgment in favor of supervisors in employee's action under antiwiretap statute; employee presented affidavit that he did not give permission to supervisors to monitor any conversations at work station, and although employee might have expected conversations uttered in normal tone of voice to be overheard by those standing nearby, it was highly unlikely that he would have expected his conversations to be electronically intercepted and monitored in office in another part of building. 18 U.S.C.A. §§ 2511, 2520. 28 Cases that cite this headnote Attorneys and Law Firms *1574 John R. Benn, Florence, Ala., for plaintiff- appellant. Frank W. Donaldson, U.S. Atty., James D. Ingram, Asst. U.S. Atty., Birmingham, Ala., for defendants-appellants. Appeal from the United States District Court for the Northern District of Alabama. Before JOHNSON and EDMONDSON, Circuit Judges, and PECKHAM * , Senior District Judge. * Honorable Robert F. Peckham, Senior U.S. District Judge for the Northern District of California, sitting by designation. Opinion *1575 PECKHAM, Senior District Judge: Appellant brought suit under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. for the alleged unauthorized interception of oral communications. The district court, 706 F.Supp. 1467, granted summary judgment in favor of appellees, finding that appellant had failed to present evidence sufficient to make out a prima facie case. 1 Because we believe that a question of material fact remained for trial in this case, we reverse. 1 The district court also granted summary judgment on a pendent state claim for invasion of privacy. Because it is not discussed in appellant's brief, we assume that appellant does not appeal the state invasion of privacy claim. I. FACTS AND PROCEDURE. Appellant Jessie Walker was employed as a letter carrier in the United States Post Office in Florence, Alabama. During the period leading up to the events underlying his claims, the relationship between Walker and three of his supervisors who are appellees in this action was extremely negative. Walker is black. The three supervisors-Superintendent of Mail Thomas E. Darby, Delivery Supervisor Kenneth Day, and Delivery Supervisor Hugh L. Robinson-are white. Walker and some of the other employees in the Florence Post Office believed that the three were engaged in a racially- motivated campaign to have Walker's employment terminated. 2 Walker had filed several EEOC complaints against appellees; he had filed assault charges against Kenny Day. 2 Rodney “Roscoe” Hollis describes efforts by the three to terminate Walker by gathering evidence that he was not performing his duties quickly enough: HOLLIS: They said, “When Jessie saw us coming it was like he threw an anchor out the back of his jeep.” You know, he slowed down Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 515 of 520 PageID 1151 Walker v. Darby, 911 F.2d 1573 (1990) 5 IER Cases 1342 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 so much he was pulling an anchor. And they'd say, “Guess where we're going, Roscoe?” And I'd say “Where?” and they'd say, “We're going coon hunting.” I'd say “Coon hunting?” And [Robinson]'d say, “Yeah, we're going out and tree us a coon.” He said, “We're going out on Tech 24.” Q: You knew that to be Mr. Walker's route? HOLLIS: Oh, yes. Hollis states that Day told him they were planning ways to circumvent postal regulations, which required that an employee be allowed several probationary periods before being terminated. It was against this backdrop that Rodney “Roscoe” Hollis, who was temporarily stationed at the Florence Post Office as a substitute letter carrier, approached Walker. Hollis, a good friend of Kenny Day, told Walker to be careful about what he said while standing near his workstation or “case,” because Hollis believed that Day and the others were monitoring Walker's conversations. Hollis describes the following conversation which he says he had with Kenny Day: [Day] come up to me and he said, “Roscoe, boy, you ought to see what we got up there in Darby's office.” And I said “What?” But he never did come right out and say what. But he said, “Boy, you can sit in Darby's office and you can hear everything that nigger says.” He said, “You can hear that nigger when he mumbles under his breath.” Deposition of Rodney Hollis at 12. After this conversation, Walker took note of two objects in the area around his case. He noticed an object attached to the wall above his case, and another intercom-like object with buttons sitting on a desk opposite from his case. Rodney Hollis had also mentioned his conversation with Day to Alan Gray, an employee in the Florence Post Office, who was an officer of the local postal workers' union. Gray took it upon himself to walk by the area near Walker's case to investigate Hollis' allegations. He noticed a brown box with buttons on it attached to the wall above Walker's case. Walker filed a complaint in federal district court on May 26, 1988, charging Darby, Day, and Robinson with illegal interception of his conversations and invasion of privacy. In December, 1988, appellees filed a motion to dismiss or, in the alternative, for summary judgment. As grounds for dismissal they argued that Walker's claims were based exclusively on conclusory allegations and hearsay testimony. *1576 They denied that any interception ever took place. The three submitted affidavits stating that the activity observed by Gamble and Hovater was merely the repair of an inoperative public address system to be used for paging employees. R1-38. In his opposition to defendants' motion, Walker provided the district court with a significant amount of eyewitness testimony addressing Darby, Day, and Robinson's alleged installation of an intercom or other monitoring device. Everett Carter Gamble, another postal worker, testified at his deposition that he observed the three installing and testing “a little box speaker of some sort” diagonally across from Walker's case. He jokingly remarked to Darby, “ ‘You're gonna hear everything we say now, aren't you?’ ” to which Darby replied, in a joking manner, “ ‘Oh yeah, we've got it fixed up.’ ” Deposition of Carter Gamble at 6-9. Harold Hovater, a letter carrier whose case was located near Walker's, said he observed the three working with a maintenance person named Ed Grigsby to wire and test an intercom in the area. In his deposition, Hovater described the process, which he said took about forty-five minutes, as follows: When they started testing the intercom, Mr. Darby, Mr. Day, and Robinson was in Mr. Darby's office. And Mr. Grigsby was talking over the intercom and he would ask them if they could hear okay and they would say yes, you know. And they would tell him to move around in certain positions in that area to see how far it would pick up.... ... [A]fter they had him to test it Kenny [Day] and Robbie [Robinson] came out and done the same thing.... Q. Did they stand close to Mr. Walker's work or case area? A. Yes, they did. [Deposition of Harold Hovater at 9-12.] Hovater later describes being asked by Darby to write out a statement of what he had seen. He alleges that Darby told him, “if this wasn't dropped there would be some jobs at stake.” Deposition of Harold Hovater at 13. WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 516 of 520 PageID 1152 Walker v. Darby, 911 F.2d 1573 (1990) 5 IER Cases 1342 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Other postal employees related admissions to them by appellee Robinson that conversations in the area near Walker's case were being monitored. Mike Nale, another letter carrier with a case near Walker's, states that Robinson told him to watch what he said in the area because “the place was wired.” Deposition of Mike Nale at 9. Letter carrier William Thomas Childers stated that Robinson told him Day was recording conversations. The district court granted summary judgment on February 10, 1989. On the same day, Walker filed a notice of this appeal. II. DISCUSSION. A. Standard of Review. An appellate court reviews a district court's summary judgment rulings using the standard provided in Fed.R.Civ.P. 56 and the case law interpreting it. See, e.g., Brown v. City of Clewiston, 848 F.2d 1534, 1537 (11th Cir.1988); Kramer v. Unitas, 831 F.2d 994, 997 (11th Cir.1987). In other words, review is de novo. Federal Rule of Civil Procedure 56(c) provides for the granting of summary judgment where there is no triable issue of material fact and where the moving party is entitled to summary judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). However, once the moving party has met that burden by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, Federal Rule of Civil Procedure 56(e) shifts to the non-moving party the burden of presenting specific facts showing that such contradiction is possible. British Airways Board v. Boeing Co., 585 F.2d 946, 950-52 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). [1] [2] A party opposing summary judgment may not rest upon the mere allegations or denials in its pleadings. Rather, its responses, either by affidavits or otherwise *1577 as provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. A mere “scintilla” of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). B. Unauthorized Interception of Oral Communications. Plaintiff invokes the private right of action contained in § 2520 of the anti-wiretapping statute, 18 U.S.C. §§ 2510 et seq. Section 2520 provides in pertinent part: [A]ny person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate. In order to recover under § 2520, plaintiff must show that defendants violated § 2511, which prohibits the interception, disclosure, or use of any wire or electronic communication. 3 Walker alleges only interception of communications. He does not allege disclosure or use of any communications. 4 As defined by 18 U.S.C. § 2510(4), “ ‘intercept’ means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Walker alleges only the interception of his oral communications; he does not allege a violation with respect to wire or electronic communications. As defined by 18 U.S.C. § 2510(2), “ ‘oral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation....” 3 Section 2511 provides in pertinent part: “[A]ny person who ... intentionally intercepts ... any wire, oral, or electronic communication ... shall be subject to suit as provided....” 4 The language of the statute indicates that this phrase is to be read in the disjunctive; that is, a showing of either interception, disclosure, or use will be sufficient to maintain an action. Thus, in order for Walker's claim to survive summary judgment, the district court would have had to find WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 517 of 520 PageID 1153 Walker v. Darby, 911 F.2d 1573 (1990) 5 IER Cases 1342 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 that a question of material fact remained with respect to the following three elements: 1) whether Walker's communications were indeed intercepted by Darby, Day, and Robinson through the use of any electronic, mechanical or other device; 2) whether Walker had an expectation that his oral communications were not subject to interception; and 3) whether, if Walker had such an expectation, the expectation was justified under the circumstances. 18 U.S.C. § 2510. The district court believed that in order to raise a question of material fact regarding the first element-the actual interception of conversations-Walker would need to allege the specific contents of conversations. The district court came to this conclusion by way of interpretation of a phrase in Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir.1976). The Broadway court, in holding that the plaintiff had failed to make out a claim under § 2520, wrote, “appellants must show that the oral communications were in fact intercepted, disclosed, or used by defendants.” 530 F.2d at 659 (emphasis added). The plaintiff had failed to do this, the court found, where he had failed to present any evidence whatsoever linking either of the two defendants to the recording device discovered in his home. While the district court here read the use of “in fact” to require proof of contents, the Broadway court did not require the plaintiff to prove the specific contents of the intercepted conversations. Indeed, a Georgia district court case later cited favorably in Scutieri v. Paige, 808 F.2d 785 (11th Cir.1987), rejected the argument that the phrase “in fact” as used in Broadway required proof of the specific contents of intercepted conversations. 5 In Awbrey v. Great Atlantic & Pac. Tea Co., Inc., 505 F.Supp. 604 (N.D.Ga.1980), defendants *1578 relied on Broadway 's use of “in fact” to argue that no action should lie under § 2520 where plaintiff was unable to allege interception of specific conversations by offering proof of the conversations' dates and contents. In rejecting that argument, the Awbrey court wrote: 5 While the Awbrey case involved interception of wire rather than oral communications, this distinction does not render the Awbrey holding inapplicable to the facts of this case. [D]efendant's argument flies in the face of the statute and the nature of the tort.... the fact that most of the plaintiffs have no personal, first-hand knowledge that any particular phone call was tapped is not remarkable.... The intentional tort of wiretapping created by 18 U.S.C. § 2520 is obviously one which by its very nature is unknown to the plaintiff. 505 F.Supp. at 606-607. This circuit adopted the Awbrey reasoning in Scutieri, when it held that plaintiffs could establish a wiretapping claim with circumstantial evidence. Citing Awbrey, the Scutieri court held that “Direct evidence may not have been available based on the stealthiness of the invasion. The success of the wiretap ultimately depends on secrecy and concealment.” 808 F.2d at 790. See also Watkins v. L.M. Berry & Co., 704 F.2d 577, 584 (11th Cir.1983) (criminal violation of anti-wiretap statute requires only interception, not interception of particular material). [3] [4] Thus, we find that appellant can raise a question of fact regarding appellees' actual interception of his conversations without proving the contents of specific conversations allegedly intercepted. Having resolved this, we find that the district court erred in finding that no question of fact remained for trial regarding the interception of oral communications in violation of § 2511. Given the facts detailed above, there was clearly evidence sufficient to raise a question of material fact regarding whether Darby, Day and Robinson had participated in installing an intercom or other listening device and whether they had in fact intercepted Walker's communications. 6 6 The district court found that the evidence Walker submitted consisted only of hearsay and conclusory allegations not rooted in personal knowledge. We disagree with this conclusion. Day and Robinson both allegedly made statements admitting that communications were being intercepted. These statements are admissions by party opponents and therefore admissible non-hearsay. Fed.R.Evid. 801(d) (2). The testimony by Gamble and Hovater regarding appellees' alleged installation of a monitoring device was based on those witnesses' own observations and thus clearly rooted in personal knowledge. [5] The other two elements required to make out a § 2520 claim can be treated together. In order to survive summary judgment, Walker would have had to raise a question of fact for trial regarding whether he expected his conversations to be free from interception, and whether, if he had this expectation, it was justified by WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 518 of 520 PageID 1154 Walker v. Darby, 911 F.2d 1573 (1990) 5 IER Cases 1342 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 the circumstances. These two elements may be viewed as subjective and objective prongs of the same inquiry. We note as an initial matter that we do not need to determine whether Walker had a reasonable expectation of privacy in his case area in the Florence Post Office. 7 The statute requires us to determine whether he had a subjective expectation that his conversations were free from interception, and whether that expectation was objectively reasonable. 18 U.S.C. §§ 2510(2), 2520. 7 In O'Connor v. Ortega, the Supreme Court held that the question of whether a public employee has a reasonable expectation of privacy in his or her workplace must be addressed on a case-by-case basis by weighing the general societal expectation of privacy in the workplace against the practical realities of the particular workplace-i.e., the amount of access enjoyed by co-workers, supervisors, or the public. 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). See generally Note, A Proposal for Mandatory Drug Testing of Federal Employees, 62 N.Y.U.L.Rev. 322, 331-37 (1987) (Fourth Amendment limitations on searches of public employees in drug testing context). Other courts have found that an action for violation of the anti-wiretap statute may be maintained even in the absence of an expectation of privacy as generally understood in the Fourth Amendment search and seizure context. Boddie v. American Broadcasting Companies, Inc., 731 F.2d 333, 338-39 and n. 5 (6th Cir.1984); Bianco v. American Broadcasting Companies, 470 F.Supp. 182, 185 (N.D.Ill.1979) (“... *1579 there may be some circumstances where a person does not have an expectation of total privacy, but still would be protected by the statute because he was not aware of the specific nature of another's invasion of his privacy.”) These courts distinguish between an expectation of privacy and the expectation of noninterception that is discussed in § 2510(2). We agree that there is a difference between a public employee having a reasonable expectation of privacy in personal conversations taking place in the workplace 8 and having a reasonable expectation that those conversations will not be intercepted by a device which allows them to be overheard inside an office in another area of the building. 8 We note another way in which the facts of this case differ from the facts of other cases in which courts have considered the expectation of privacy issue. The issue of a public employee's expectation of privacy generally arises in the context of legitimate attempts by employers to police employee conduct. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (warrantless search of employee's office to investigate charges of extortion and sexual harassment). No such attempt is suggested by the facts of this case. Walker asserts that Darby, Day and Robinson intercepted his conversations in pursuit of a personal vendetta against him. Darby, Day and Robinson contend that no interception took place. No party contends that appellees acted in an official capacity in intercepting Walker's conversations. [6] Therefore, the issue is whether a question of fact remained for trial regarding whether Jessie Walker had a subjective expectation that conversations taking place near his case were free from interception. The only evidence in the record on this point is an affidavit submitted to the district court by Walker in opposition to appellees' motion for summary judgment. In the affidavit, Walker states: I never gave permission to Kenneth Day, Thomas Darby or Hugh Robinson to intercept or monitor any of my conversations that took place while I was at my work station in the post office. That during the time of the events alleged in my lawsuit, I had numerous private and personal conversations with various other employees.... R1-42. The district court had no other evidence before it contradicting this statement by Walker. Therefore, there was a question of fact for trial concerning the subjective prong of the inquiry. The district court did not discuss whether any subjective expectation that Walker's oral communications would be free from interception was objectively justified under the circumstances. Again, we must distinguish this inquiry from the question of whether Walker had an objectively reasonable expectation that conversations taking place near his case would be overheard. The case was located in an area shared with other workers. But while Walker might have expected conversations uttered in a normal tone of voice to be overheard by those standing nearby, WESTl.AW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 519 of 520 PageID 1155 Walker v. Darby, 911 F.2d 1573 (1990) 5 IER Cases 1342 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 it is highly unlikely that he would have expected his conversations to be electronically intercepted and monitored in an office in another part of the building. Given that we must draw all inferences in favor of the non- moving party, we find that a question of fact remained for trial on this point. The record shows that questions of fact remained for trial on the three elements required to make out a claim of violation of 18 U.S.C. § 2520. We therefore REVERSE and REMAND for further proceedings consistent with this opinion. EDMONDSON, Circuit Judge, concurring: I concur in the judgment. I agree that in a lawsuit alleging the interception of oral communication in violation of 18 U.S.C. § 2511, a plaintiff need only show interception of communication, not that particular conversations were intercepted. Given the facts, as detailed in today's opinion, sufficient evidence raised a question of material fact regarding whether Walker's communications had been intercepted. I thus agree that the district court erred in finding that no question of fact remained on this issue and in granting summary judgment. While I concur in the judgment, I believe that much of today's court opinion is dicta. The district court never discussed whether plaintiff's expectations of being free from interception were justified, and defendants' *1580 motion for summary judgment says nothing about the reasonableness of such expectation in the circumstances. The reasonableness point was not raised in district court and not raised on appeal as I read the briefs. Today's court need not decide the point to decide this appeal. And, on this record, I decline to address the question of when an employee may have a reasonable expectation of non- interception, especially without the district court having first addressed the question. On remand, the district court- with the help of the parties-can still consider the matter of reasonable expectations as more facts are developed, either at trial or in advance of trial. All Citations 911 F.2d 1573, 5 IER Cases 1342 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. 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