Anaya et al v. Directv Inc et al

Filing 148

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 4/7/2016. Mailed notice(sj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICARDO ANAYA, et al.,
Plaintiffs,
v.
DIRECTV, LLC and
DIRECTSAT USA, LLC,
Defendants.

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Case No. 14-cv-5703
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
On March 5, 2015, Plaintiffs filed a First Amended Complaint (“FAC”) against
Defendants DIRECTV, LLC and DirectSat USA, LLC (hereinafter, “Defendants”) 1. The FAC
alleged violations of the Fair Labor Standards Act of 1938 (the “FLSA”), 29 U.S.C. § 201, et
seq.; the Illinois Wage Payment and Collection Act; and the Illinois Employee Classification
Act. Defendants filed Motions to Dismiss [94, 100], pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim for which relief can be granted. On September 23, 2015, this
Court granted Defendants’ Motions to Dismiss. On October 23, 2015, Plaintiffs filed a Second
Amended Complaint (“SAC”) against Defendants. The SAC alleges one count under the FLSA,
alleging overtime wage violations. Defendants have filed Motions to Dismiss [131, 135]
pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6). For the reasons discussed below,
Defendants’ Motions to Dismiss [131, 135] are denied.
BACKGROUND
DIRECTV is a Delaware corporation with its principal place of business in
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Plaintiffs Steven Earhart, Milan Puljezevic, and Mario Romero bring their claims solely
against DIRECTV. Plaintiffs Ricardo Anaya, David Blake, Javier Cruz, Danyale Gage,
Bill Intzekotis, Daniel Sobieszek, and Andrew Cyprien bring their claims against DIRECTV and
DirectSat.

El Segundo, California. (SAC ¶ 16.) DirectSat is a Delaware limited liability company with its
principal place of business in King of Prussia, Pennsylvania. (Id. at ¶ 17.) Plaintiffs are
individuals residing in Illinois. (Id. at ¶¶ 6-15.) Plaintiffs worked as satellite television
installation technicians whose principal duty was to install and repair DIRECTV satellite
television service. (Id. at ¶ 21.) Plaintiffs were treated as 1099 independent contractors. (Id. at
¶ 22.)
DIRECTV controls and manages their service technicians by either employing them
directly (“W-2 Employees”) or through an employment network of service providers (the
“Provider Network”) consisting of Home Service Providers (“HSPs”), including DirectSat,
Secondary Services Providers (“Secondary Providers”), subcontractors, and service technicians.
(Id. at ¶ 23.) DIRECTV was the primary client of the HSPs and Secondary Providers and was
the source of substantially all of their income. (Id. at ¶ 26.) DIRECTV gives Providers advance
payments in order to keep Providers afloat. (Id. at ¶ 46.) DIRECTV has absorbed several
Providers through acquisition. (Id. at ¶¶ 46-47.) DIRECTV controls the Provider Network
through contracts with HSPs and Secondary Providers; the HSPs and Secondary Providers then
enter into contracts with largely captive entities that DIRECTV refers to as subcontractors; and
those subcontractors then enter into contracts with the technicians who install the satellite
television equipment. (Id. at ¶ 28.) In some cases, the HSPs and Secondary Providers contract
directly with technicians. (Id.). DirectSat passed along scheduling from DIRECTV and
provided supervision of technicians. (Id. at ¶ 30.) DirectSat maintained a contractor file for each
technician working for them. (Id. at ¶ 30.) The files were regulated and audited by DIRECTV.
(Id.) DirectSat had the ability to enter into and terminate contracts with the 1099 technicians.
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(Id. at ¶ 31.) DirectSat also maintained warehouses where 1099 technicians had to pick up some
equipment and take some training. (Id. at ¶ 34.)
Technicians installed DIRECTV’s satellite television equipment according to the same
policies, procedures, practices, and performance standards required by DIRECTV. (Id. at ¶ 33.)
DIRECTV uses Provider Agreements to ensure that technicians perform their work as specified,
and Subcontractor Agreements and Technician Agreements incorporate the provisions of the
Provider Agreements. (Id. at ¶¶ 34, 36.) The Provider Agreements control almost all facets of
the technicians’ work. (Id. at ¶ 37.) Each technician is assigned a work order through a
centralized computer software system that DIRECTV controls. (Id. at ¶ 38.) DIRECTV
mandates certain methods and standards of installation. (Id. at ¶ 35.) Because of this, each
technician’s job duties are virtually identical. (Id.) DIRECTV used a database program known
as SIEBEL to coordinate the assignment of work orders to technicians using a unique “Tech ID
Number” for each technician. (Id. at ¶ 40.) Upon arriving at each work site, technicians were
required to check-in with DIRECTV. (Id. at ¶ 42.) After an assigned job, technicians were
required to report to DIRECTV that the installation was complete. (Id.) Through the Providers
system, DIRECTV controls the details of Plaintiffs’ day-to-day work and compensation. (Id. at
¶ 60.)
Plaintiffs were required to purchase and wear uniforms with DIRECTV insignia on them
and to display DIRECTV insignia on vehicles driven to customers’ homes. (Id. at ¶ 43.)
Plaintiffs were also made to hold themselves out as agents of DIRECTV. (Id. at ¶ 80.)
DIRECTV also requires that all technicians pass pre-screening and background checks and
obtain a certification from the Satellite Broadcasting & Communications Association before they
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could be assigned work orders. (Id. at ¶ 70.) Plaintiffs were also required to purchase supplies
necessary to perform installations and required to provide all maintenance and purchase all gas
for the vehicles they drove between customers’ homes. (Id. at ¶ 106.)
Plaintiffs were compensated on a piece-rate payment scheme that is utilized throughout
DIRECTV’s network. (Id. at ¶ 85.) Under the piece-rate system, technicians are paid on a pertask basis for certain “productive” tasks. (Id. at ¶ 101.) Plaintiffs were not compensated for
assembling satellite dishes, transportation to and from assignments, reviewing and receiving
schedules, contacting customers to confirm installations, obtaining required supplies, assisting
other technicians, performing required customer education, contacting DIRECTV to report in or
activate service, working on installations that were not completed, and working on installations
where Plaintiffs had to return and perform additional work on previously completed installations
(“rollbacks”). (Id. at ¶ 102) There was no contract, memorandum, or other document between
Plaintiffs and Defendants, memorializing or explaining the pay system. (Id. at ¶ 99.)
DIRECTV and Providers’ quality-control personnel reviewed Plaintiffs’ work and
imposed “chargebacks” and/or “rollbacks” based on those reviews. (Id. at ¶ 87.) Chargebacks
were deductions from technicians’ pay if there were issues with an installation or questions from
a customer. (Id. at ¶ 105.) Some issues included: faulty equipment, improper installation,
customer calls on how to operate their remote control, and customers’ failure to give greater than
a ninety-five percent satisfaction rating for the services provided. (Id.)
Plaintiffs allege that they were routinely required to work more than forty hours per
week, while being denied overtime pay. (Id. at ¶ 110.)

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LEGAL STANDARD
To properly state a claim, the plaintiff must present “a short and plain statement of the
claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought . . . .”
Fed. R. Civ. P. 8. Rule 8 “does not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand a 12(b)(6) motion, a plaintiff must plead sufficient factual matter to state a
claim for relief that is “plausible on its face.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550
U.S. at 570). “While legal conclusions can provide the complaint’s framework, they must be
supported by factual allegations.” Iqbal, at 1939. Plaintiffs are not required to “plead the
elements of a cause of action along with facts supporting each element.”
Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 517
(7th Cir. 2015). The complaint must provide a defendant “with ‘fair notice’ of the claim and its
basis.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Fed. R. Civ. P.
8(a)(2) and Twombly, at 544-555). Under Rule 12(b)(6), the court accepts the complaint’s wellpleaded factual allegations as true, and all reasonable inferences are construed in the plaintiff’s
favor. Twombly, at 555-56.
ANALYSIS
FLSA
Plaintiffs allege that Defendants violated the FLSA by failing to pay overtime wages and
failing to pay minimum wage. Defendants argue that Plaintiffs have not shown that an
employer-employee relationship existed for the purposes of the FLSA. Employer is defined as
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including “any person acting directly or indirectly in the interest of an employer in relation to an
employee . . . .” 29 U.S.C. § 203(d). The “FLSA contemplates several simultaneous employers
who may be responsible for compliance with the FLSA.” Villareal v. El Chile, Inc., 776 F.
Supp. 2d 778, 784 (N.D. Ill. 2011) (citing Falk v. Brennan, 414 U.S. 190, 191 (1973)). “Two or
more employers may jointly employ someone for the purpose of the FLSA.” Karr v.
Strong Detective Agency, Inc., 787 F.2d 1205, 1207 (7th Circ. 1986); see also 29 C.F.R. § 791.2.
For a joint-employer relationship to exist, each alleged employer must exercise control over the
working conditions of the employee. See Moldenhauer v. Tazewell-Pekin Consol.
Commc’ns Ctr., 536 F.3d 640, 644 (7th Cir. 2008) (quoting Moreau v. Air France, 343 F.3d
1179, 1182 (9th Cir. 2003)).
Under the Department of Labor’s regulations:
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, such as 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.
29 C.F.R. § 791.2(b); see also Cuff v. Trans States Holdings, Inc., 768 F.3d 605, 608 (7th Cir.
2014).
Courts look at several factors to determine whether an entity is a joint employer,
including whether the alleged employer: “(1) had the power to hire and fire employees,
(2) supervised and controlled employee work schedules or conditions of payments,
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(3) determined the rate and method of payment, and (4) maintained employment records.”
Moldenhauer, 536 F.3d at 644. The FLSA “has been construed liberally to apply to the furthest
reaches consistent with congressional direction.” Mitchell v. Lublin, McGaughy & Associates,
358 U.S. 207, 2011 (1959). “A determination of 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). The economic reality of
the situation controls whether the FLSA applies. See Goldberg v. Whitaker House Co-op., Inc.,
366 U.S. 28, 33 (1961).
Power to Hire and Fire Employees
Defendants contend that Plaintiffs have not sufficiently alleged Defendants had the power
to hire or fire them. Plaintiffs allege Defendants authorized subcontracting principals to hire
Plaintiffs to perform DIRECTV work only if they met DIRECTV’s non-discretionary pre-hire
conditions, including that Plaintiffs: (1) complete DIRECTV’s New Hire training and the
Satellite Broadcasting & Communications Association Certified Installer Training, (2) pass a
criminal background check, and (3) pass a nine-panel drug screen. (SAC ¶ 70.) But Plaintiffs
concede that DIRECTV and the HSP Defendants did not accept applications or interview
potential candidates. However, Plaintiffs contend Defendants nonetheless determined who could
and could not be hired to install DIRECTV systems. (Id. ¶¶ 68-69.) Plaintiffs also allege
Defendants retained the ultimate and unilateral authority to terminate their employment by deauthorizing their technician ID number and prohibiting Plaintiffs from continuing to receive
work orders. (Id. ¶¶ 64, 71-72.)

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As pled, DIRECTV “unquestionably plays a role in hiring and firing technicians.”
Jacobson v. Comcast Corp., 740 F. Supp. 2d 683, 689 (D. Md. 2010). DIRECTV does set some
standards for the hiring of technicians and maintains and distributes lists of poorly performing
technicians. (SAC, ¶¶ 75-76). Plaintiffs also allege that DirectSat had the power to enter into
and terminate contracts with technicians. (Id. at ¶ 31.) Plaintiffs have sufficiently pled that
Defendants had influence over the hiring and/or firing process.
Supervision and Control
Defendants argue that Plaintiffs’ assertions that DIRECTV “directly and indirectly”
supervised their “work schedules and conditions of employment” are insufficient to establish a
joint-employer relationship. Plaintiffs allege Defendants retained authority to control and did
control all meaningful conditions of Plaintiffs’ employment. Specifically, DIRECTV
promulgated mandatory rules, policies, and practices regarding the manner and method by which
installations were to be performed. (Id. ¶¶ 33-35, 79.) DIRECTV contractually obligated
DirectSat to hand down these rules and policies to all technicians. (Id. at ¶¶ 36-37.) DIRECTV
developed and provided mandatory training, which it required of all technicians, including
Plaintiffs. (Id. at ¶¶ 32, 82.)
DIRECTV maintained an online scheduling and management system to schedule, track,
and manage all DIRECTV installation work performed by Plaintiffs. (Id. ¶¶ 29, 78.) DIRECTV
created daily work orders and assigned them to Plaintiffs. (Id. ¶ 42.) Furthermore, DIRECTV
required all technicians, including Plaintiffs, to wear DIRECTV uniforms, drive the DIRECTVbranded vehicles and display DIRECTV-marked credentials. (Id. ¶ 40.) Plaintiffs also allege
Defendants supervised and controlled them through personnel monitoring and post-installation
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customer surveys. (Id. ¶¶ 75-77.) Defendants measured Plaintiffs’ work performance against
metrics they developed, circulated reports identifying low-performing technicians, and
demanded improvement from bottom-performing technicians. (Id. ¶¶ 76-77.)
Defendants argue that these requirements are “quality assurance measures.” (Dkt. 113 at
14.) “[D]etailed instructions and a strict quality control mechanism will not, on their own,
indicate an employment relationship.” Jacobson v. Comcast Corp., 740 F. Supp. 2d 683, 690
(D. Md. 2010). However, the conduct Plaintiffs allege goes beyond quality control. Plaintiffs
allege that they were given work orders by Defendants, who then monitored and tracked
Plaintiffs, evaluated that work, and demanded improvement when necessary. Plaintiffs have
plausibly alleged control and supervision by Defendants.
Rate and Method of Payment
Plaintiffs admit that Defendants did not pay the Plaintiffs but argue that the compensation
method was set by and ultimately funded by DIRECTV. There are no specific allegations that
DIRECTV or DirectSat set Plaintiffs’ rate and method of payment. Rather Plaintiffs allege that
DIRECTV “sets an amount it is willing to pay for certain defined tasks.” (SAC ¶ 85.) These
allegations remain substantively unchanged from the FAC. While DIRECTV determined what
tasks were compensable and what tasks were not, there is no allegation that they determined the
rate for compensation. Further, Plaintiffs admit that Providers, and not DIRECTV, paid
Plaintiffs using their own payroll and paycheck systems. Plaintiffs have not sufficiently alleged
that DIRECTV and DirectSat determined the rate and method of payment.

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Employment Records
Plaintiffs admit that DIRECTV does not keep employment-related records. (Id. ¶ 90.)
DIRECTV does require HSPs to retain paperwork on technicians, which is subject to inspection
by DIRECTV. (Id.) DIRECTV assigned Plaintiffs and all other subcontractor technicians a
unique identification number. (Id. ¶¶ 41.) Through the SIEBEL system, DIRECTV maintained
records of the work orders completed by Plaintiffs, as well as other performance, personal, and
payroll data. (Id. ¶ 91.) Plaintiffs have sufficiently alleged that DirectSat kept
paperwork/personnel files for each of its technicians. (Id. ¶ 90.)
Joint Employer
Plaintiffs have alleged that Defendants had some control over hiring and firing and
exerted substantial control and supervision over Plaintiffs’ work schedules and conditions of
employment. Taking all well-pleaded factual allegations as true, making all reasonable
inferences in Plaintiffs’ favor, and considering the liberal scope of the FLSA, Plaintiffs have
plausibly alleged that Defendants were joint employers for the purposes of the FLSA.
Limitations Period
Defendants incorporate their previous arguments, from the first Motions to Dismiss,
regarding the limitations period. Defendants argue that Plaintiffs fail to state a claim under the
FLSA for recovery beyond a two-year period. “[E]xcept for cases of willful violations, claims
under the FLSA must be brought within two years of the violation.” Bankston v. State of Ill., 60
F.3d 1249, 1253 (7th Cir. 1995). In contrast, “a cause of action arising out of a willful violation
may be commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a).

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Willful violations are those where “the employer either knew or showed reckless disregard for
the matter of whether its conduct was prohibited by the statute.” McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133 (1988). “[A]n employer’s mere negligence or a good
faith ̶ but incorrect ̶ belief that they were in compliance with the FLSA, are not sufficient to
rise to the level of a willful violation.” Difilippo v. Barclays Capital, Inc., 552 F. Supp. 2d 417,
425 (S.D.N.Y. 2008).
Defendants claim that Plaintiffs have not sufficiently alleged willfulness to allow for a
three-year limitations period. Plaintiffs have alleged that “Defendants’ unlawful conduct was
willful because . . . DIRECTV and other members of the Provider Network knew, or should have
known, that the fissured employment scheme utilized a piece-rate system(s) that unlawfully
denied Plaintiffs minimum wage, overtime wage, and other employment benefits.” (SAC ¶ 182.)
Plaintiffs have sufficiently alleged willfulness to extend the limitations period to three years.
Overtime
Defendants incorporate their previous arguments, from the first Motions to Dismiss,
regarding overtime wages. “Under the FLSA, a nonexempt employee who works more than
forty hours in a given week must be compensated for those excess hours.” Caraballo v.
City of Chicago, 969 F. Supp. 2d 1008, 1014 (N.D. Ill. 2013) (citing 29 U.S.C. § 207(a)(1)). As
several appellate courts have found, Plaintiffs’ allegations that they typically worked for more
than forty hours a week and were not compensated for all time worked is sufficient to withstand
a motion to dismiss. See Davis v. Abington Mem’l Hosp., 765 F.3d 236, 243 (3d Cir. 2014) (“a
plaintiff's claim that she ‘typically’ worked forty hours per week, worked extra hours during such

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a forty-hour week, and was not compensated for extra hours beyond forty hours he or she
worked during one or more of those forty-hour weeks, would suffice.”); Lundy v.
Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013) (“. . . in order to state
a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given
workweek as well as some uncompensated time in excess of the 40 hours.”); Landers v. Quality
Commc’ns, Inc., 771 F.3d 638, 645 (9th Cir. 2014) (“A plaintiff may establish a plausible claim
by estimating the length of her average workweek during the applicable period and the average
rate at which she was paid, the amount of overtime wages she believes she is owed, or any other
facts that will permit the court to find plausibility.”). Plaintiffs have sufficiently alleged that they
worked in excess of forty hours a week without being fully compensated.
Claim Splitting
Defendant DIRECTV also seeks to dismiss Plaintiff Romero’s FLSA claim, arguing that
it is improper claim splitting. The doctrine of claim splitting “bars a party from maintaining a
suit that arises from the transaction or events underlying a previous suit simply by changing their
legal theory” and “can be applied before either action reaches a final judgment on the merits.”
Anderson v. Guaranteed Rate, Inc., No. 13 C 431, 2013 WL 2319138, at *4 (N.D. Ill.
May 28, 2013). Defendants argue that Romero remains part of a class action in Missouri for
similar claims against DIRECTV. Plaintiffs respond that the current suit is for different times
than the Missouri action and that Plaintiff was an independent contractor for the current action
and a W-2 employee for the Missouri action. Defendants reply that it is unclear from the SAC
whether the claims overlap or not. The SAC specifically states that the claims do not overlap.
(SAC ¶ 113, n. 21) Taking all well-pleaded factual allegations as true and construing all
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reasonable inferences in Plaintiffs’ favor, Romero’s claim in the current action does not arise
from the same transaction or event underlying the Missouri action. Therefore, Plaintiff
Romero’s claims are not precluded by claim splitting.
Rule 8
Defendants also ask that the Complaint be dismissed due to violations of Federal Rule of
Civil Procedure 8. Rule 8 requires “a short and plain statement of the claim showing that the
pleader is entitled to relief” and that “each allegation shall be simple, concise, and direct.”
Fed.R.Civ.P. 8(a)(2), (d)(1). Defendants argue that the Complaint unnecessarily includes
multiple references to legal authority, as well as several footnotes of legal citation. Defendants
also argue that the Complaint is, at times, contradictory. This may be true; however, “when the
complaint adequately performs the notice function prescribed for complaints by the civil rules,
the presence of extraneous matter does not warrant dismissal.” Davis v. Ruby Foods, Inc., 269
F.3d 818, 820-21 (7th Cir. 2001). The Complaint adequately performs the notice function, and,
therefore, the presence of extraneous material does not warrant dismissal.
CONCLUSION
For the reasons set forth above, Defendants’ Rule 12(b)(6) Motions to Dismiss [131, 135]
are denied. Defendants’ Motions to Dismiss pursuant to Rule 8 are denied.

Date:

April 7, 2016
JOHN W. DARRAH
United States District Court Judge

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