Campos v. Zopounidis et al
ORDER granting 45 Plaintiff's Motion for Partial Summary Judgment. See the attached Memorandum of Decision. For the reasons explained in the attached Memorandum, The Court holds that the Plaintiff was an employee of the Defendants rather than an independent contractor, and therefore that he may avail himself of the FLSA's protections in this lawsuit. This case will proceed to trial in accordance with the Court's September 7, 2010 Scheduling Order [Doc. #39], pursuant to which the Joint Trial Memorandum is due by 8/15/11 and Jury Selection shall take place on 10/4/11 at 9:30 a.m. Signed by Judge Vanessa L. Bryant on 7/20/11. (Engel, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EVDOXIA ZOPOUNIDIS AND
EZ ENTERPRISES LLC,
CIVIL ACTION NO.
July 20, 2011
MEMORANDUM OF DECISION GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [Doc. #45]
The plaintiff, Jamie Campos (“Campos”), filed this action against his
former employers, Evdoxia Zopounidis and EZ Enterprises, LLC (collectively, the
“Defendants”). Campos alleges that the Defendants violated the overtime and
minimum wage provisions of the federal Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq., and the minimum wage, overtime and wage payment
provisions of Connecticut law, Conn. Gen. Stat. §§ 31-58 et seq. Campos seeks
as damages double his unpaid wages, as well as reasonable attorney’s fees and
costs. Presently pending before the Court is Campos’s partial motion for
summary judgment. [Doc. #45]. Campos requests that the Court find as a matter
of law that he was an “employee” of the Defendants rather than an “independent
contractor,” and therefore that he may avail himself of the protections of the
FLSA in this lawsuit. For the reasons stated below, Campos’s motion is
I. FACTUAL BACKGROUND
Campos worked as a delivery person for Pappa’s Pizzeria from April 1998
until April 2009. Pappa’s Pizzeria was owned and operated by EZ Enterprises,
LLC, a Connecticut limited liability company. Evdoxia Zopounidis (“Zopounidis”)
is the sole principal in EZ Enterprises, LLC, and the manager of Pappa’s Pizzeria.
Zopounidis Aff. [Doc. #47-2] ¶ 3. Zopounidis has owned and operated the
restaurant since late 2006 when she bought it from her son, George Volouktis. Id.
¶ 4. Pappa’s Pizzeria offers onsite dining, pick-up, and food delivery service to its
customers. See http://www.pappaspizzeria.com.
When she purchased the restaurant in 2006, Zopounidis was aware that
Campos had worked for her son, but she did not know how long he had worked at
the restaurant, what his duties had been, or how he was compensated.
Zopounidis Dep. [Doc. #45-7] at 22-23. Zopounidis did not ask Campos to reapply
for his job, nor did she enter into a written employment agreement with him after
she purchased the business from her son. Id. at 22-23. Instead, he continued to
do the same work he had been doing for her son on the same terms and
conditions and at the same rate of pay. Campos Aff. [Doc. # 45-8] ¶ 8.
Zopounidis claims that Campos told her what his “rates” and schedule were, and
she simply agreed to the terms of employment that he dictated. Zopounidis Aff.
[Doc. #47-2] ¶¶ 13-21.
Pappa’s Pizzeria is open from 11:00 a.m. to 11:00 p.m. on Monday
through Saturday and from 12:00 p.m. to 10:00 p.m. on Sunday. Pl. Rule 56(a)(1)
Statement ¶ 6. Id. ¶ 7. Campos worked two six hour shifts every day from
Monday through Friday, for a total of sixty hours per week. Id. ¶ 8. He was paid
$8 per hour for the first shift, lasting from 11:00 a.m. until 5:00 p.m., and $6 per
hour for the second shift, lasting from 5:00 p.m. until 11:00 p.m. Id. ¶ 9.
Zopounidis claims that Campos also charged a $1, $2, or $3 fee to the restaurant
for each delivery, depending upon the distance and/or neighborhood to which the
delivery was being made. Zopounidis Aff. [Doc. #47-2] ¶ 16. She further claims
that Campos kept all of the tips he received from his deliveries. Id. ¶ 17.
According to Zopounidis, the reason Campos was paid at a lower hourly rate for
his second shift was that he was able to make more money on delivery fees and
tips in the evening hours. Id. ¶ 22. Campos used his own vehicle for deliveries
and paid his own automotive expenses. Id. ¶ 19. Zopounidis provided Pappa’s
Pizzeria signs to Campos and other delivery persons to place on top of their cars.
Id. ¶ 33.
Zopounidis paid Campos and her other workers in cash for their work. Pl.
Rule 56(a)(1) Statement ¶¶ 25-26. Campos never received a paycheck, pay stub,
or any document showing any deductions from his pay. Campos Aff. [Doc. # 458] ¶ 12. Campos claims that Zopounidis told him that she preferred to pay him in
cash because she did not want to pay taxes, Campos Aff. [Doc. # 45-8] ¶ 13, while
Zopounidis contends that Campos insisted on being paid in cash because he was
in the United States illegally. Zopounidis Aff. [Doc. #47-2] ¶ 20. Zopounidis did
not keep any records of the hours that Campos worked or the wages that he was
paid. Pl. Rule 56(a)(1) Statement ¶ 6.
The parties dispute the scope of Campos’s job duties. Zopounidis claims
that Campos performed no work for the restaurant other than delivering food.
Zopounidis Aff. [Doc. #47-2] ¶ 26. Campos, however, contends that he typically
made twelve to fifteen deliveries each day, but that he performed several other
duties at the restaurant as well. Campos Aff. [Doc. # 45-8] ¶¶ 24-25. In addition to
food delivery, Campos claims that he helped to prepare the ingredients for pizza
and other food, cleaned the restaurant at the end of every work shift, shoveled
snow from the sidewalk in front of the restaurant during winter months, and ran
errands such as making bank deposits, going to the supermarket, and delivering
mail. Id. ¶¶ 17-23.
Zopounidis testified that, in addition to Campos, at any given time she
would have a second, part-time delivery person who delivered food and worked
thirty hours per week at the restaurant. Zopounidis Dep. [Doc. #45-7] at 35.
However, there were times during the day when Campos was the only delivery
person present at the restaurant. Id. at 36.
During the time that Campos worked for Pappa’s Pizzeria from April 1998
to April 2009, Campos had no other regular employment. Campos Aff. [Doc. # 458] ¶¶ 30-31. He did not advertise or market his services in any way. Id. Campos
claims that he always provided advance notice to Zopounidis or her brother,
George (who worked for Zopounidis at the restaurant), whenever he was going to
be late to work because of an emergency and informed them of the time he would
come in. Id. ¶¶ 34-35. He also requested a fifteen day leave from Zopounidis to
recuperate from a surgery in May 2008. Id. ¶¶ 32-33.
Campos stopped working for Pappa’s Pizzeria on or about April 6, 2009.
Campos claims that Zopounidis let him go from his position when he refused to
accept a reduction in wages to $6 per hour for both of his shifts. Id. ¶¶ 37-39.
Zopounidis admits that, as a result of a decline in the restaurant’s business, she
told Campos that she would no longer pay him $8 per hour for delivery services
and would not agree to charge customers more a $1 delivery charge. Zopounidis
Aff. [Doc. #47-2] ¶ 28.
During the period that Campos worked for Zopounidis, Fredericka Bikakis
served as the accountant for Pappa’s Pizzeria. Bikakis has handled payroll and
prepared tax returns for Zopounidis since she purchased the restaurant in 2006.
Bikakis Dep. [Doc. #45-11] at 10. Bikakis testified that for most of the period from
2006 to 2009, the Defendants had two employees, both of whom were treated as
salaried rather than hourly employees. Id. at 18-20. Campos claims that the two
employees were Zopounidis’ brothers. Bikakis prepared payroll and taxes based
solely upon information verbally provided to her by Zopounidis, which she did
not independently verify. Id. at 18-20, 31. Zopounidis never provided any written
records showing the amount of money that she paid her workers. Id. The IRS
Schedule Cs to the Defendants’ tax returns from 2006 to 2009 report the following
wage payments to employees: no wages in 2006; $19,500 in 2007; $10,400 in
2008; and $11,375 in 2009. See Schedule Cs for 2006-2009 [Doc. ##45-12, 45-13,
45-14, and 45-15). Zopounidis did not provide Bikakis with any documentation
showing that she had paid anyone as an independent contractor, and no
payments to independent contractors were reported on the Schedule C’s that
Bikakis prepared for the Defendants for tax years 2006 to 2009. Bikakis Dep.
[Doc. #45-11] at 25-30. There are also no records showing that Zopounidis ever
deducted federal or state taxes or social security from the wages paid to any of
her employees. Id. Bikakis calculated the employer portions of any deductions
for Zopounidis’s employees on a quarterly basis. Id.
II. STANDARD OF REVIEW
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court “construe[s] the
evidence in the light most favorable to the non-moving party and . . . draw[s] all
reasonable inferences in its favor.” Huminski v. Corsones, 396 F.3d 53, 69-70 (2d
Cir. 2004). “[I]f there is any evidence in the record that could reasonably support
a jury’s verdict for the non-moving party, summary judgment must be denied.”
Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313,
315 (2d Cir. 2006) (internal quotation marks omitted). “The moving party bears
the burden of showing that he or she is entitled to summary judgment.”
Huminski, 396 F.3d at 69. “[T]he burden on the moving party may be discharged
by ‘showing’ – that is pointing out to the district court – that there is an absence
of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola
Co., 315 F.3d 101, 105 (2d Cir. 2002). “If the party moving for summary judgment
demonstrates the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence
that would be sufficient to support a jury verdict in its favor.” Burt Rigid Box, Inc.
v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
In their answer, the Defendants assert that they are not liable to Campos
under the FLSA because, at all relevant times, Campos was an independent
contractor and therefore he was not entitled to wages, minimum wages, or
overtime. [Doc. #27], Affirmative Defenses ¶ 1. Campos now moves for partial
summary judgment, asking the Court to hold as a matter of law that he is an
employee under the FLSA and therefore may avail himself of the FLSA’s
protections. The FLSA broadly defines an employee as “any individual employed
by an employer” and defines “employ” as “to suffer or permit to work.” 29 U.S.C.
§§ 203(e)(1), (g). Independent contractors are not covered by the FLSA. See
Brock v. Superior Care, Inc., 840 F.2d 1054, 1058 (2d Cir. 1988). The United States
Supreme Court has stated that exemptions to coverage under the FLSA “are to be
narrowly construed against the employers seeking to assert them.” Arnold v.
Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960).
In light of the broad definitional scope and remedial purpose underlying
the FLSA, the Second Circuit has endorsed an “economic realities test” under
which individuals are considered to be employees if “as a matter of economic
reality [they] are dependent upon the business to which they render service.”
Frankel v. Bally, Inc., 987 F.2d 86, 89 (2d Cir. 1993). The Second Circuit has
identified the following five factors that a court should consider in applying the
economic realities test to determine whether workers are employees or
independent contractors for purposes of the FLSA:
(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 and duration of the
working relationship, and (5) the extent to which the work is an
integral part of the employer’s business.
Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir. 1988) (citing United
States v. Silk, 331 U.S. 704, 716 (1947)).
“No one of these factors is dispositive; rather the test is based on a
totality of the circumstances.” Id. at 1059. “The 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 business for themselves.” Id.
A. Employer’s Degree of Control over Worker
The following factors are relevant to determining whether an entity has
exercised formal control over its workers:
[W]hether 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.
Carter v. Dutchess Cmty. College, 735 F.2d 8, 12 (2d Cir. 1984).
The parties dispute the scope of Campos’s job duties. Zopounidis claims
that Campos performed no work for the restaurant other than delivering food.
Campos, however, claims that he performed many other duties at the direction of
Zopounidis, including preparing ingredients, cleaning the restaurant, shoveling
snow, and running errands. Since the evidence must be viewed in the light most
favorable to the nonmoving party on a motion for summary judgment, the Court
accepts Zopounidis’s version of the facts and assumes for purposes of the
instant motion that Campos only delivered food for the restaurant. Even
assuming that delivering food was his only duty, however, the record supports a
finding that Zopounidis exercised sufficient control over his work to be indicative
of employee status.
First, Zopounidis had the power to hire and fire Campos. Campos worked
full-time at Pappa’s Pizzeria for eleven years, from April 1998 to April 2009. When
Zopounidis purchased the restaurant from her son in 2006, she continued
Campos’s employment, and did not ask him to reapply or reduce their
arrangement to a written agreement. Since Campos did not enter into a written
agreement with Zopounidis, and Zopounidis was the owner and sole manager of
the restaurant, there can be no reasonable dispute that she “hired” him as a
delivery person and could have terminated him from the job at any time. See Wu
v. Chang’s Garden of Storrs, LLC, No. 3:08-CV-746 (WWE), 2010 WL 918079, at *3
(D. Conn. Mar. 11, 2010) (finding that defendant’s status as sole owner and
president of the LLC that bought and owned restaurant for several years should
have afforded him the power to exercise control over kitchen workers even
though his son managed the restaurant).
Second, the record reflects that Zopounidis had control over Campos’s
work schedule and conditions of employment. Campos worked exclusively for
the Defendants. He was required to be at the restaurant from 11:00 a.m. to 11:00
p.m., Monday through Friday, a total of sixty of the eighty-four hours that the
restaurant was open each week. At times during the day, he was the only
delivery person at the restaurant. Campos informed Zopounidis or her brother
when he had an emergency that would cause him to be late to work, and he
requested leave from work when he needed time to recuperate from surgery in
May 2008. These facts are inconsistent with the Defendants’ argument that
Campos set his own schedule and “could come and go as he pleased.” Def.
Mem. at 3. Zopounidis set Campos’s hourly rate of pay and the delivery fee he
charged. She provided signage for his vehicle denoting her restaurant.
Furthermore, Campos delivered food only for and at the direction of Pappa’s
Pizzeria. By the very nature of his job, Zopounidis exercised control over his
schedule and conditions of employment by directing him where to deliver orders
placed by the restaurant’s customers.
Third, Zopoundis’s self-serving statements in her affidavit that Campos
dictated his rate of pay and work schedule and that she simply acquiesced do not
create a genuine issue of material fact for trial. See Brock, 840 F.2d at 1059
(noting that “an employer’s self-serving label of workers as independent
contractors is not controlling”); Ramsey v. Goord, 661 F. Supp. 2d 370, 384
(W.D.N.Y. 2009) (“Vague assertions supported only by self-serving statements in
the nonmoving party’s affidavit are insufficient to defeat a properly supported
summary judgment motion.”) (citing Coniglio v. High Services, Inc., 495 F.2d
1286, 1292 (2d Cir. 1974)). As an initial matter, “the subjective intent of the parties
in forming the employment relationship has little to no significance in
determining whether a plaintiff is an independent contractor or employee.”
Trejos v. Edita’s Bar & Rest., Inc., No. CV-08-1477 (ARR), 2009 WL 749891, at *2
(E.D.N.Y. Mar. 17, 2009). Therefore, even if Zopounidis did not intend for Campos
to be an employee, this is not dispositive of the issue. More importantly, the
evidence in the record is inconsistent with Zopounidis’s assertions. For
instance, Zopounidis concedes that, in April 2009, she informed Campos that
would no longer pay him $8 and would no longer charge a delivery fee of more
than $1, which prompted the end of Campos’s work for the restaurant. This
admission demonstrates that Zopounidis did in fact have the power to decide
what Campos’s rate of pay and delivery charge would be. In addition, Zopounidis
claims that it was Campos who insisted on being paid in cash, but concedes that
it was her general practice to pay all of her workers in cash. Finally, as
previously noted, Zopounidis’s assertion that Campos set his own schedule and
could come and go whenever he wanted is contradicted by both the regularity of
his hours and the nature of his job, which entailed making deliveries to
customers who placed delivery orders with Pappa’s Pizzeria.
Fourth, although Zopounidis did not maintain employment records for
Campos, she had the power to do so and thus this is not inconsistent with a
finding of control in the context of this case. Zopounidis paid all of her workers,
including Campos, in cash. Zopounidis’ accountant testified that she prepared
payroll and taxes based upon information that Zopounidis gave to her verbally;
Zopounidis never provided her with any written employment records. Therefore,
Zopounidis’s apparent failure to maintain employment records for Campos was
consistent with her general practice.
Accordingly, as Zopounidis controlled the terms, place, manner of, and
compensation for Campos’s work, she exercised a sufficient degree of control
such that the first factor weighs in favor of Campos.
B. Opportunity for Profit or Loss and Investment in the Business
The second factor is the worker’s opportunity for profit or loss and
investment in the business. Although the Second Circuit has not addressed this
factor in a case comparable to the instant matter, the Court finds cases outside
the Circuit to be instructive. For instance, in Herman v. Express Sixty-Minute
Delivery Service, Inc., 161 F.3d. 299, 303-04 (5th Cir. 1998),1 the Fifth Circuit found
that the relative investment of on-call courier delivery service drivers was
insignificant as compared to the investment of the delivery service. The drivers
in Herman provided their own vehicles, paid their own automotive expenses and
The Fifth Circuit’s test for determining whether a worker is an independent
contractor or employee for purposes of the FLSA is substantially similar to the
test adopted by the Second Circuit. Id.
supplied their own uniforms, radios and pagers, biohazard bags and dry ice. Id.
at 302. The delivery service, however, made a far more significant investment in
the business, which included leases on two offices, biweekly payroll, a $25,000
computer system and other expenses. Id. at 304. The Fifth Circuit also noted that
most drivers also used their vehicles for personal purposes, which diluted the
significance of their investment in the business. Id. Thus, the Fifth Circuit found
this factor to weigh in favor of a finding that the drivers were employees rather
than independent contractors. Id. Here, Campos’s relative investment was even
smaller by comparison to the Defendants’ investment in the restaurant. Campos
merely supplied a vehicle, which he also used for personal purposes, and paid all
related expenses. By comparison, the Defendants invested in the restaurant
premises, the supplies, telephones, vehicle signage, payroll service, utilities and
all the other expenses of operating the business.
Further, an indicium of the opportunity for profit or loss recognized by the
Fifth Circuit in Herman was the delivery drivers’ ability to choose how much they
wanted to work as well as which jobs to work, thereby forgoing less profitable
jobs in favor of more profitable jobs. Id. In this case, Campos had no discretion.
He was required to make all assigned deliveries during his shift and Zopounidis
set the delivery fee and his hourly rate of compensation unilaterally. See
Gustafson v. Bell Atlantic Corp., 171 F. Supp. 2d 311, 325 (S.D.N.Y. 2001) (finding
that former chauffeur for company who formed his own corporation to provide
driving services at company’s behest made insubstantial investment in the
business and had minimal opportunity for profit or loss where he was
economically dependent on the company for all of his revenues).
Similarly, in Harrell v. Diamond A. Entertainment, Inc., 992 F. Supp. 1343,
1350 (M.D. Fla. 1997), the district court held that an exotic dancer’s investment in
the business was minor compared to the nightclub’s investment. The plaintiff in
Harrell made sizeable expenditures from her own account for costumes,
hairstyling, make-up and shoes. Id. at 1350. However, the district court found
these expenditures insignificant in comparison to the nightclub’s investment in
the business for such things as advertising, facilities and maintenance. Id. The
nightclub also exercised control over the dancer’s profit-making ability by
establishing a fee for table dances, having a disc jockey announce the fee on a
regular basis, and obligating each dancer to perform on center stage during her
“stage rotation.” Id. at 1349-50. Here, as in Harrell, there is no evidence that
Campos had any influence over the management of the restaurant, such as the
food it offered or the prices it charged. Zopounidis received requests for and
scheduled the deliveries, determined when and which deliveries Campos made,
and set the hourly rate and delivery fee he received. Campos had no control over
customer volume or the delivery area. Thus, Campos was totally dependent on
Zopounidis for work and had no control over the work he performed or the
amount he earned.
Campos was required to work at the restaurant 60 hours per week, during
which time he could not make deliveries for others. He was required to make all
assigned deliveries during his rotation and could not select the more profitable
deliveries. He did not advertise delivery services and had no role in developing
either the restaurant or the delivery business. He was paid an hourly rate and
worked at timed determined by Zopounidis. He made deliveries to the areas
dictated by Zopounidis unilaterally. He supplied a vehicle and paid his own
automotive expenses, but bore none of the other more substantial expenses of
the business, such as rent, utilities, supplies, vehicle signage, payroll, tax or
other business expenses. Campos’s nominal investment in the business and
inability to earn a profit militate in favor of a holding that Campos was an
employee rather than an independent contractor. Therefore, this factor weighs in
favor of Campos.
C. Degree of Skill and Independent Initiative Required
The third factor is the degree of skill or independent initiative required to
perform the work. There is no evidence that Campos’s job as a delivery person
required him to possess any particular degree of skill. Campos did not need
education or experience to perform his job. Although he needed a driver’s
license in order to legally drive his vehicle for deliveries, the possession of a
driver’s license and the ability to drive an automobile is properly characterized as
a “routine life skill” that other courts have found to be indicative of employment
status rather than independent contractor status. E.g. Edwards, 251 F. Supp. 2d
at 1099 (finding that position of home health care provider did not require skill
and independent initiative because “most of the tasks required . . . are routine life
skills such as cooking, cleaning, and balancing a checkbook”).
Moreover, even in cases involving skilled workers who require several
years of specialized training, courts have noted that skill in itself is not indicative
of independent contractor status where the workers do not exercise significant
initiative in locating work opportunities. See Brock, 850 F.2d at 1060; Gayle v.
Harry’s Nurses Registry, No. CV-07-4672(CPS)(MDG), 2009 WL 605790, at *8
(E.D.N.Y. Mar. 9, 2009). In Brock, for example, the Second Circuit found that
nurses who worked as temporary health-care personnel were employees
because, although they were skilled workers, the record indicated that they
depended entirely on referrals to find job assignments and did not use their skills
in any independent way. 850 F.2d at 1060. In this case, Campos’s job was to
deliver food for Pappa’s Pizzeria exclusively. There is no evidence in the record
that Campos exercised any independent initiating in performing this job. Instead,
Campos only delivered food to customers who placed delivery orders with the
restaurant. He did not advertise his delivery services separately and
independently from the restaurant. Therefore, this factor weighs in favor of
D. Permanence and Duration of Working Relationship
The fourth factor is the permanence and duration of the working relationship.
Where an individual is working for a business under a term agreement, such as a
year-to-year contract, courts have found the relationship to be more indicative of
an independent contractor than an employee. See, e.g., Edwards, 251 F. Supp. 2d
at 1100. On the other hand, where there is no agreement dictating a particular
term of work and the worker puts in significant hours over a substantial period of
time, courts have found this factor to weigh in favor of employment status. See,
e.g., Scwind v. EW & Assocs., 357 F. Supp. 2d 691, 702 (S.D.N.Y. 2005) (finding
this factor to weigh in favor of finding employment status where plaintiff worked
exclusively for defendants for four years performing the same duties); Rosso v.
PI Mgmt. Assocs., LLC, No. 02 Civ. 1702(KNF), 2005 WL 3535060, at *6 (S.D.N.Y.
Dec. 23, 2005) (work in full-time position over a two-year period sufficient to
demonstrate employment status). In this case, Campos worked full-time for
Zopounidis for three years, and worked in the same position for a total of eleven
years. There is no evidence in the record that the parties ever considered their
working relationship to be temporary or fixed in duration. Therefore, this factor
weighs in favor of Campos.
E. Extent to which Work is Integral to Business
The final factor is the extent to which the work performed by the worker was
an integral part of the employer’s business. Pappa’s Pizzeria is a restaurant that
offers delivery service to its customers. Indeed, delivery services are
prominently advertised on the restaurant’s website. See
http://www.pappaspizzeria.com. Campos worked on a full-time basis delivering
food for the restaurant for eleven years, the last three for the Defendants. It
cannot be seriously disputed that the job of a delivery person for a restaurant that
provides delivery serves is integral to the business. See Ansoumana v.
Gristede’s Operating Corp., 255 F. Supp. 2d 184, 195 (S.D.N.Y. 2003) (finding that
delivery workers for a drug store were integral to the business because the
employer “used the delivery workers to extend its shelves and counters to the
homes of customers, allowing them the convenience of shopping from home
instead of having to come physically into a store”). Therefore, this factor weighs
in favor of Campos.
F. Balancing of Five Factors
Each of five factors enumerated in the “economic reality” test to
determine whether a worker is an employee or independent contractor weighs in
favor of Campos. The evidence in the record demonstrates that Zopounidis
exercised control over Campos, that Campos had little to no opportunity for profit
or loss and an insubstantial investment in the business, that Campos did not
need skill or independent initiative to perform his job as a delivery person, that
Campos worked for Pappa’s Pizzeria on a permanent rather than a temporary
basis and did so over a substantial period of time, and that Campos’s work was
integral to the restaurant’s business. Therefore, considering the totality of the
circumstances, the Court concludes that the evidence clearly demonstrates that,
as a matter of economic reality, Campos was an employee of the Defendants
rather than an independent contractor at all times during their working
relationship. Campos’s motion for partial summary judgment is GRANTED.
Based on the foregoing reasoning, Campos’s motion for partial summary
judgment [Doc. #45] is GRANTED. The Court holds that Campos was an
employee of the Defendants rather than an independent contractor. Therefore, he
may avail himself of the FLSA’s protections in this lawsuit.
IT IS SO ORDERED.
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 20, 2011.
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