Mendiola et al v. Howley et al
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 7/19/2021.Mailed notice.(jlj, )
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 1 of 15 PageID #:1069
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
PEDRO MENDIOLA and JUAN CARLOS CRUZ
JOHN HOWLEY and GALWAY PAINTING, INC.,
18 C 8536
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Pedro Mendiola and Juan Carlos Cruz Valentin allege in this suit that their former
employer, Galway Painting, Inc., and its president, John Howley, violated the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law
(“IMWL”), 820 ILCS 105/1 et seq., by failed to pay them minimum and overtime wages.
Doc. 1. With discovery closed, Plaintiffs move for partial summary judgment on liability on
their overtime wage claim. Docs. 59, 60. The motion is denied.
The court recites the facts as favorably to Defendants as the record and Local Rule 56.1
permit. See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). At
this juncture, the court must assume the truth of those facts, but does not vouch for them. See
Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).
Galway is a commercial painting contractor, and Plaintiffs are painters who performed
jobs for Galway over the course of several years. Doc. 72-1 at p. 1, ¶¶ 1-2; Doc. 74 at ¶ 2.
Plaintiffs did not receive overtime wages from Galway for the hours they worked in excess of
forty per week. Doc. 72-1 at p. 2, ¶ 4. The key question in this case is whether Plaintiffs were
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 2 of 15 PageID #:1070
(1) employees to whom Defendants owed overtime pay under the FLSA and the IMWL or,
rather, (2) independent contractors to whom Defendants owed no such duty. The pertinent facts
on that question are as follows.
Valentin performed jobs for Galway from October 2016 through February 2018. Id. at p.
1, ¶ 2. According to Defendants, whose version of the facts must be accepted at this stage,
Mendiola performed jobs for Galway from 2011 until 2013, took a break from the company for
about a year, and resumed working with it from mid-2014 through May 2018. Doc. 72-4 at ¶ 4;
see Doc. 72-1 at p. 1, ¶ 1.
At the time Plaintiffs began working with Galway, they were “experienced painters,”
“skilled in spray techniques, manual painting, spackling and sanding[,] and in the use of
scaffolding and painter stilts to reach difficult spaces.” Doc. 72-4 at ¶ 8; see Doc. 74 at ¶ 24.
Defendants “did not train or direct [Plaintiffs] in the performance of their trade,” but they did
expect Plaintiffs to do a professional job and leave their worksites in a clean condition.
Doc. 72-4 at ¶ 8.
Plaintiffs worked in crews of two or more painters at each worksite. Doc. 72-5 at 18
(68:3-11). Mendiola occasionally brought friends to a worksite “to help do the job.” Id. at 16
(59:12-13); see Doc. 74 at ¶ 25. Defendants were responsible for identifying worksites and
directing crews to report to those worksites. Doc. 72-1 at p. 5, ¶¶ 15, 18. Once at a site,
Plaintiffs were “basically unsupervised.” Doc. 74 at ¶ 24. Mendiola testified that Howley, while
nominally his “direct supervisor,” would visit a worksite just “in the afternoons or the following
day” and that no one supervised the crew in Howley’s absence. Doc. 72-5 at 11 (37:16-38:23);
see Doc. 72-1 at p. 4, ¶ 12. Valentin did not state whether he had a supervisor, but he noted that
his crew members did not supervise his work. Doc. 72-7 at 4 (12:14-23).
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 3 of 15 PageID #:1071
Galway supplied some of the tools and equipment that Plaintiffs used while performing
work for Galway. Doc. 74 at ¶ 23. Specifically, Galway provided Plaintiffs with the paint
selected by its customers and allowed Plaintiffs to use the company’s scaffolding, sprayers, and
other tools. Doc. 72-4 at ¶ 10; Doc. 72-9 at ¶ 7; Doc. 74 at ¶ 23. Plaintiffs supplied their own
brushes and a small ladder, and Valentin brought his own paint tray and rollers. Doc. 74 at ¶ 23;
Doc. 72-7 at 7 (21:1-2 & 22-24, 22:1-2). Plaintiffs transported their equipment to and from job
sites in their own “work trucks.” Doc. 74 at ¶ 22; Doc. 72-5 at 15 (55:16-23).
Plaintiffs were paid by the hour. Doc. 72-1 at pp. 3-4, ¶¶ 9-10. Each morning, they
reported to the job site at 7:00 am and worked through 5:00 pm, with a lunch break around noon.
Id. at p. 4, ¶ 13; Doc. 72-5 at 14 (50:19-20), 18 (67:19-23); Doc. 72-7 at 7 (22:12-19),
8 (27:8-19). Plaintiffs had to receive approval to leave work before 5:00 pm or to take a day off.
Doc. 72-1 at p. 4, ¶ 13. Mendiola testified that he worked from Monday through Saturday, and
sometimes on Sundays when required. Doc. 72-5 at 19 (70:3-19). “[I]f there was something that
[Mendiola] had to do with [his] family [on Sunday], [he] would ask [Howley]” for permission
not to work that day. Id. at 19 (70:6-10). Mendiola further testified that he did not recruit
clients, bill customers, or address their complaints, and that he did not have the authority to hire,
fire, or discipline other members of his crew. Id. at 23 (86:6-21, 87:1-11).
The parties disagree on two matters pertaining to Plaintiffs’ autonomy over their
schedules. The first concerns whether they had discretion to pick and choose their job
assignments. Doc. 74 at ¶ 27. Defendants assert that “Mendiola and Valentin retained control
over which projects … they accepted and were free to reject projects[.]” Doc. 72-4 at ¶ 6
(Howley declaration); see Doc. 74 at ¶ 27. Plaintiffs assert that “when [they] finished one job
they were told where to report … the next work day. There was never any discussion about
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 4 of 15 PageID #:1072
‘taking jobs’ [but rather] Howley decided what jobs to take and which workers to send to each
job.” Doc. 74 at ¶ 27 (citing Doc. 74-1 at ¶¶ 12-13). In Mendiola’s telling, “Galway never gave
[him] the option of refusing jobs.” Doc. 74-1 at ¶ 9. The evidence that Plaintiffs cite to support
their view at most creates a tie between the parties’ positions, and that tie must be resolved in
Defendants’ favor on summary judgment.
Second, the parties dispute whether and, if so, to what extent Plaintiffs could accept side
jobs or work for other contractors while performing jobs for Galway. Doc. 74 at ¶ 26.
Defendants assert that Plaintiffs were free “to work for another contractor or on their own jobs.”
Doc. 72-4 at ¶ 6; see Doc. 74 at ¶ 26. Valentin, by contrast, testified that he was told that he was
“not allowed to do any side jobs,” and that he in fact did not take on side jobs while working
with Galway. Doc. 72-7 at 7 (21:5-8 & 19-21). According to Mendiola, Howley did not tell him
not to take on other jobs, and he completed “two or three” side jobs for friends while doing work
for Galway, but he did not work for another contractor during that time. Doc. 72-5 at 15 (53:1122), 20 (75:20-24, 76:1-3), 23 (87:16-18). Again, the dispute between the parties concerning
Plaintiffs’ ability to take on side jobs or work for other contractors must be resolved in
Defendants’ favor at this stage.
As noted, the complaint alleges that Defendants violated the FLSA and the IMWL by
failing to pay Plaintiffs minimum and overtime wages. Doc. 1 at ¶¶ 17-50. Plaintiffs seek
summary judgment as to liability on their overtime wage claim.
The FLSA was enacted “to protect all covered workers from substandard wages and
oppressive working hours.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 5 of 15 PageID #:1073
(1981). The FLSA’s overtime provision requires “employers” to pay their “employees”
overtime pay for hours worked above forty per week:
[N]o 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). Defendants do not dispute that Galway is a covered “enterprise” and that,
if Plaintiffs were covered “employees,” Howley is a covered “employer.” Doc. 11 at ¶¶ 7-9;
Doc. 72 at 8-15. The only disputed question—which pertains to both the overtime and minimum
wage claims—is whether Plaintiffs were Galway’s employees or, rather, independent
contractors. Doc. 72 at 8-15.
The FLSA’s text “is of little use” is assessing whether Plaintiffs were “employees” for
purposes of the overtime provision. Hollins v. Regency Corp., 867 F.3d 830, 834-35 (7th Cir.
2017). “Section 203(e)(1) [of the FLSA] defines ‘employee’ in an unhelpful and circular fashion
as ‘any individual employed by an employer.’” Berger v. NCAA, 843 F.3d 285, 290 (7th Cir.
2016) (quoting 29 U.S.C. § 203(e)(1)). “Section 203(g) broadly defines ‘employ’ as ‘to suffer or
permit to work.’” Ibid. (quoting 29 U.S.C. § 203(g)). Thus, “[t]o qualify as an employee for
purposes of the FLSA, one must perform ‘work’”—a term not defined by the statute—“for an
“The Supreme Court has instructed the courts to construe the term ‘employee’ …
expansively under the FLSA” to accomplish its remedial purposes. Vanskike v. Peters, 974 F.2d
806, 807 (7th Cir. 1992) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992));
see also Sec’y of Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987). Consistent with that
instruction, the Seventh Circuit has held that “employees [are] those ‘who as a matter of
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 6 of 15 PageID #:1074
economic reality are dependent upon the business to which they render service.’” Simpkins v.
DuPage Hous. Auth., 893 F.3d 962, 964 (7th Cir. 2018) (quoting Lauritzen, 835 F.2d at 1534).
In undertaking that inquiry, courts must “utiliz[e] a broader definition of employee than the
common law, and determine whether an arrangement is an employment or independent
contractor relationship with a six-factor test to determine the ‘economic reality’ of the situation.”
Est. of Suskovich v. Anthem Health Plans of Va., Inc., 553 F.3d 559, 565 (7th Cir. 2009).
Determining whether an individual is dependent on a putative employer as a matter of
“economic reality” involves examining and balancing the following nonexclusive factors, which
have come to be called the Lauritzen 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
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
Lauritzen, 835 F.2d at 1535. Under this standard, “no criterion is by itself, or by its absence,
dispositive or controlling.” Id. at 1534. “Instead, the inquiry is aimed at determining the
economic reality of the working relationship by examining the totality of the circumstances.”
Simpkins, 893 F.3d at 965. While “the Lauritzen factors are not the exclusive means” for
determining “employee” status under the FLSA, id. at 964-65, the parties agree that they supply
the appropriate analytical framework here.
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 7 of 15 PageID #:1075
Before continuing, the court pauses to describe the legal and factual aspects of the
Lauritzen analysis. The Seventh Circuit has identified “three types of findings [that are] relevant
to the determination of employment status [under the FLSA]: 1) ‘historical findings of fact’ that
underlie a finding regarding the [six Lauritzen] factors; 2) [factual] findings on the factors
themselves, which are based on inferences drawn from the historical facts; and 3) the ultimate
legal conclusion [regarding whether an individual is an “employee” or independent contractor]
based on those two types of factual findings.” Id. at 965; see also Lauritzen, 835 F.2d at 1535.
Because “a district court makes no factual findings of its own [on summary judgment],” the
court’s role at this stage is limited “to determin[ing] whether … there [are] disputes of fact
material to the determination of [Plaintiffs’] employment status” that preclude summary
judgment against Defendants on the question whether Plaintiffs were Galway’s employees.
Simpkins, 893 F.3d at 965.
1. The nature and degree of the alleged employer’s control as to the manner in which the
work is to be performed. An employer’s exercise of control over the manner in which work is
performed and the details of “the operation as a whole” weighs in favor of an employeremployee relationship. Lauritzen, 835 F.2d at 1536. Here, the record presents several
competing facts as to the degree of control exercised by Defendants over Plaintiffs’ work.
On the one hand, Defendants set Plaintiffs’ working hours and required them to obtain
permission to leave early or take a day off. Moreover, by Mendiola’s account, Howley oversaw
his work in part, visiting his crew’s worksites “in the afternoons or the following day.” Doc. 725 at 11 (37:16-38:23); see Doc. 72-1 at p. 4, ¶ 12. Defendants also controlled most aspects of the
operation as a whole: they recruited clients, directed painters to particular worksites, fielded
customer complaints, and retained the authority to hire and fire crew members. See Simpkins,
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 8 of 15 PageID #:1076
893 F.3d at 966 (considering whether the defendant “required [the plaintiff] to work … set
hours” when determining whether the “control” factor favored employee status under the FLSA);
Lauritzen, 835 F.2d at 1536 (in holding that migrant pickle farmers were “employees” under the
FLSA, reasoning that the “control” factor favored employee status because the defendants
“occasionally visit[ed] the [farmworkers] in the fields,” some workers “expressed a belief that
[defendants] had the right to fire them,” and the defendants exercised “pervasive control” over
the “entire pickle-farming operation, not just the details of harvesting”).
On the other hand, Plaintiffs received no training or instruction from Defendants and
worked “basically unsupervised,” and Mendiola sometimes recruited his friends to help him
perform Galway jobs. See Nassis v. LaSalle Exec. Search, Inc., 2018 WL 2009502, at *7 (N.D.
Ill. Apr. 30, 2018) (while acknowledging that the defendants “exercised some supervision over
[the] [p]laintiff’s work,” holding that the fact that the defendants “generally did not directly
oversee the [plaintiff’s] work” weighed against finding that the defendants “controlled” the
plaintiff’s work); cf. Calderon v. J. Younes Constr. LLC, 2013 WL 3199985, at *6 (N.D. Ill. June
23, 2013) (holding that the “control” factor favored employee status for construction workers
because the putative employer controlled the details of their work and they “typically were not at
the work site at times when [the owner of the company] was not there”); Solis v. Int’l Detective
& Protective Serv., Ltd., 819 F. Supp. 2d 740, 750 (N.D. Ill. 2011) (same for security guards,
where the putative employer “not only … instruct[ed] [them] on exactly how they should
perform their jobs, but it also closely monitored their compliance with [the company’s]
procedures”). Furthermore, evidence adduced by Defendants shows that Plaintiffs could accept
and reject projects as they wished and were free “to work for another contractor or on their own
jobs” while doing work for Galway. Doc. 72-4 at ¶ 6; see Doc. 74 at ¶¶ 26-27. True enough,
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 9 of 15 PageID #:1077
Mendiola avers that “Galway never gave [him] the option of refusing jobs,” Doc. 74-1 at ¶ 9, and
Valentin avers that he did not perform side jobs while working with Galway because he and his
co-workers understood that they were “not allowed to do any side jobs,” Doc. 72-7 at 7 (21:521), but Plaintiffs’ version of the facts cannot carry the day on summary judgment.
Drawing all reasonable inferences from the record in Defendants’ favor, the “control”
factor does not favor Plaintiffs on summary judgment. See Simpkins, 893 F.3d at 966-67
(holding that the district court erred in holding on summary judgment that the plaintiff was not
an “employee” under the FLSA, in part due to material fact disputes as to “the extent and effect
of th[e] [plaintiff’s] autonomy” over his schedule and work assignments); Nassis, 2018 WL
2009502, at *7-8 (in denying the FLSA plaintiff’s summary judgment motion, noting that the
record presented “conflicting evidence about the degree of control exercised by [d]efendants”).
2. The alleged employees’ opportunity for profit or loss depending upon their
managerial skill. Workers are more likely to be independent contractors, not employees, if they
retain the opportunity to increase their profits by exercising managerial skill and risk losing their
investments with poor performance. See Lauritzen, 835 F.2d at 1536; Perez v. Super Maid, LLC,
55 F. Supp. 3d 1065, 1077 (N.D. Ill. 2014). Plaintiffs argue that they had no meaningful
opportunity to affect their “profit or loss” because they invested few of their own resources in
Galway work—meaning that they had little to lose—and their profits were capped by the number
of hours they worked. Doc. 60 at 7; Doc. 73 at 3. While not disputing that Plaintiffs faced little
risk of loss, Defendants argue that Plaintiffs had the opportunity for additional profit by taking
on side jobs and working for other contractors. Doc. 72 at 13.
This factor favors Plaintiffs. Because Plaintiffs worked a set number of hours at a fixed
hourly rate—as opposed to a flat rate per job—they had no opportunity to earn additional
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 10 of 15 PageID #:1078
compensation by performing their work more efficiently. Nor could Plaintiffs increase their
profits by exercising initiative or business judgment, for they did not solicit clients, negotiate
contract prices, or share in Galway’s overall profits. See Rutherford Food Corp. v. McComb,
331 U.S. 722, 730 (1947) (recognizing that an individual is more likely to be an independent
contractor for FLSA purposes if his earnings depend on the exercise of “initiative, judgment[,] or
foresight”); Perez, 55 F. Supp. 3d at 1077 (holding that maids who worked fixed hours at fixed
rates were “employees,” reasoning that they did not have “any autonomy to increase their
earning rate through managerial discretion”); Int’l Detective & Protective Serv., 819 F. Supp. 2d
at 751 (holding that the “opportunity for profit or loss” factor favored employee status because
the plaintiffs “were paid by the hour” and “had no opportunity, by performing their tasks
efficiently and skillfully, to earn additional profit, nor did they have a share in [the defendant’s]
overall profits or losses”); cf. Strom v. Strom Closures, Inc., 2008 WL 4852998, at *5 (N.D. Ill.
Nov. 7, 2008) (holding that this factor favored independent contractor status where the plaintiff
was paid a commission on each sale, thereby giving her the potential to earn more than a weekly
Contrary to Defendants’ submission, the fact that Plaintiffs could perform jobs for firms
other than Galway has no bearing on whether they had the opportunity to increase their profits.
If the opportunity to perform side jobs or work for others were relevant, “the opportunity for
profit or loss” factor almost invariably would favor independent contractor status because most
individuals are able to perform work for firms other than their putative employers. See Baker v.
Flint Eng’g & Constr. Co., 137 F.3d 1436, 1441 (10th Cir. 1998) (in holding that welders paid at
a fixed hourly rate did not have the opportunity to increase their profits, reasoning that their
“ability to maximize their wages by ‘hustling’ new work is not synonymous with making a
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 11 of 15 PageID #:1079
profit”); Bulaj v. Wilmette Real Estate & Mgmt. Co., LLC, 2010 WL 4237851, at *6 (N.D. Ill.
Oct. 21, 2010) (in holding that the “opportunity for profit or loss” factor favored employee
status, rejecting the defendant’s argument that the plaintiff janitor had the opportunity for
additional profit or loss because he ran his own maintenance business while performing work for
In short, because the amount Plaintiffs earned had no correlation to their performance,
they were “far more akin to wage earners toiling for a living, than to independent entrepreneurs
seeking a return on their risky capital investments.” Morse v. Mer Corp., 2010 WL 2346334, at
*4 (S.D. Ind. June 4, 2010) (quoting Reich v. Circle C. Invs., Inc., 998 F.2d 324, 328 (5th Cir.
1993)). The “opportunity for profit or loss” factor thus favors Plaintiffs.
3. The alleged employees’ investment in equipment or materials required for their tasks,
or their employment of workers. Workers who make “large expenditures, such as risk capital,
capital investments, and not negligible items or labor itself,” are more likely to be considered
independent contractors than employees. Lauritzen, 835 F.2d at 1537 (quoting Donovan v.
Gillmor, 535 F. Supp. 154, 161 (N.D. Ohio 1982)). Plaintiffs argue that this factor favors
employee status because Defendants provided them with paint and certain equipment, and
“[t]here is no evidence that Plaintiffs [brought] anything else to the worksites” other than
“brushes and a ladder.” Doc. 60 at 8. The record is not as clear as Plaintiffs say. For one,
Valentin testified that, in addition to brushes and a four-foot ladder, he supplied his own paint
tray and rollers. Doc. 72-7 at 7 (21:1-2 & 22-24, 22:1-2). For another, Mendiola occasionally
enlisted friends to help him perform Galway jobs, and Plaintiffs owned the trucks they used to
transport their equipment to and from worksites. Compare Derolf v. Risinger Bros. Transfer,
Inc., 259 F. Supp. 3d 876, 882-84 (C.D. Ill. 2017) (holding that truck drivers were independent
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 12 of 15 PageID #:1080
contractors rather than employees in part because they leased their trucks from Defendants and
were allowed to hire assistants), with Perez, 55 Supp. 3d at 1077 (holding that maids did not
make the sorts of large personal investments typical of independent contractors, and stressing
that their putative employer provided insurance, vehicles, transportation expenses, and all
cleaning supplies, and prohibited them from hiring assistants).
Considering the evidence in the light most favorable to Defendants, a reasonable jury
could find that Plaintiffs’ and Defendants’ relative investments in the equipment and materials
needed to perform Plaintiffs’ tasks weigh against employee status. See Simpkins, 893 F.3d at
966 (holding that the defendant was not entitled to summary judgment due to disputed facts
concerning the parties’ relative investment in the tools needed to perform the plaintiff’s tasks).
4. Whether the service rendered requires a special skill. A specialized skillset generally
favors independent contractor status. See Lauritzen, 835 F.2d at 1537. That said, “[s]kills are
not the monopoly of independent contractors,” and a worker may still qualify as an employee
despite having received occupational training. Ibid.; see Int’l Detective & Protective Serv., 819
F. Supp. 2d at 752 (holding that security guard work “did not demand a high degree of technical
experience or skill” even though guards were required to receive firearms training, reasoning that
most of their day-to-day work involved unspecialized tasks such as completing incident reports
and walking around worksites to detect unauthorized activity); Bulaj, 2010 WL 4237851, at *7
(holding that a janitor did not deploy specialized skills, despite having received “training and
education in certain specialized trades, including carpentry, plumbing, and electrical work,”
because his “day-to-day tasks principally entailed rudimentary janitorial and building
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 13 of 15 PageID #:1081
The parties agree that Plaintiffs were “experienced painters” when they began performing
jobs for Galway, but disagree on whether painting is a specialized skill. Doc. 74 at ¶¶ 4, 24;
Doc. 60 at 8; Doc. 72 at 14; Doc. 73 at 4. As Plaintiffs see it, anyone who has ever painted a
room can attest that painting is a skill but would not say that the task calls for a “particularly
specialized” skill. Doc. 60 at 8. That argument has some intuitive appeal, but Plaintiffs neglect
to account for the fact that they received training on a variety of matters—“spray techniques,
manual painting, spackling and sanding[,] and in the use of scaffolding and painter stilts to reach
difficult spaces,” Doc. 72-4 at ¶ 8—some of which are beyond the ken of an amateur painter.
Because the record does not reveal whether and, if so, to what extent Plaintiffs drew on
specialized training in their day-to-day responsibilities for Galway, this factor remains subject to
competing interpretations and, given the need to draw reasonable inferences in Defendants’
favor, does not favor Plaintiffs on summary judgment.
5. The degree of permanency and duration of the working relationship. The more
“permanent” and “exclusive” the working relationship, the more likely workers are to be
employees. Lauritzen, 835 F.2d at 1537. That the duration of Plaintiffs’ work for Galway
occurred over an extended timeframe—at least five to six years in Mendiola’s case, and about a
year and a half in Valentin’s—favors employee status. As noted, though, there is a material fact
dispute over whether Plaintiffs were free to work for other companies while doing work for
Galway, and Defendants’ assertion (which, again, is taken as true at this stage) that Mendiola
took a one-year break from Galway raises additional questions about the permanency of the
working relationship. As with the “specialized” skill factor, the “permanency and duration”
factor cannot be said to favor Plaintiffs on summary judgment. See Nassis, 2018 WL 2009502,
at *8 (holding that this factor was “subject to competing interpretations” in light of conflicting
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 14 of 15 PageID #:1082
evidence on the permanence of the plaintiff’s position); Jackson v. Leader’s Inst., LLC, 2015 WL
7573228, at *7 (S.D. Ind. Nov. 24, 2015) (denying summary judgment where the record
presented a “material factual dispute regarding whether the [p]laintiffs were at liberty to work for
6. The extent to which the service rendered is an integral part of the alleged employer’s
business. “Individuals are more likely to be employees if they perform the primary work of the
alleged employer.” Perez, 55 F. Supp. 3d at 1078 (internal quotation marks omitted); see also
Lauritzen, 835 F.2d at 1537-38 (holding that pickle harvesters were an “integral part of the
pickle business” because they were an essential link in the sale of pickles). There can be little
doubt that Plaintiffs, who performed at worksites the painting services that Defendants offer,
were an integral part of the business. Accordingly, this factor favors employee status. See
Perez, 55 F. Supp. 3d at 1078 (holding that this factor favored employee status because “the
primary business of Supermaid is providing cleaning services” and “[m]aids who work for
Supermaid perform that cleaning”); Int’l Detective & Protective Serv., 819 F. Supp. 2d at 753
(same, where security guards were an integral part of a security services company’s business).
In sum, two of the six Lauritzen factors—the “opportunity for profit or loss” and
“integral-to-business” factors—favor Plaintiffs on summary judgment, but the remaining factors
either favor Defendants or are incapable of resolution in Plaintiffs’ favor at this juncture due to
competing or genuinely disputed facts. Because a reasonable jury could find that Plaintiffs were
independent contractors, summary judgment on their FLSA overtime pay claim is denied. See
Simpkins, 893 F.3d at 967 (holding that the district court “erred in concluding that [the plaintiff]
was not an employee under the FLSA as a matter of law” due to genuine factual disputes);
Case: 1:18-cv-08536 Document #: 80 Filed: 07/19/21 Page 15 of 15 PageID #:1083
Ingram v. Hagen, 161 F. Supp. 3d 639, 644 (S.D. Ill. 2015) (denying summary judgment on a
FLSA claim because several Lauritzen factors were inconclusive); Nassis, 2018 WL 2009502, at
Like the FLSA, the IMWL requires “employers” to pay their “employees” no less than
one and one-half times their regular hourly wage for hours worked above forty hours in one
week. 820 ILCS 105/4(a)(1); see Haynes v. Tru-Green Corp., 507 N.E.2d 945, 951 (Ill. App.
1987). Because the overtime provisions of the IMWL and the FLSA are similar in scope, the
same analysis governs whether a plaintiff was a defendant’s employee or, rather, an independent
contractor. See Urnikis–Negro v. Am. Family Prop. Servs., 616 F.3d 665, 672 n. 3 (7th Cir.
2010) (“The overtime provision of the Illinois Minimum Wage Law, 820 ILCS 105/4a(1), is
parallel to that of the FLSA, and Illinois courts apply the same principles … to the state
provision.”); Condo v. Sysco Corp, 1 F.3d 599, 601 n.3 (7th Cir. 1993) (same); Haynes, 507
N.E.2d at 951 (same). It follows, for the reasons given above, that Plaintiffs are not entitled to
summary judgment on liability for their IMWL overtime claim. See Ingram, 161 F. Supp. 3d at
643-48 (denying summary judgment as to the plaintiff’s status as an employee under the FLSA
and the IMWL after applying the same analysis to both claims).
Plaintiffs’ summary judgment motion is denied. The case will proceed to trial as to
liability and damages on Plaintiffs’ minimum wage and overtime claims.
July 19, 2021
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?