Roeder et al v. DIRECTV, Inc et al

Filing 108

MEMORANDUM Opinion and Order denying 59 Motion for Summary Judgment on the claims of Plaintiff Roeder; denying 62 Motion for Summary Judgment on the claims of Plaintiff Grill; denying 67 Motion for Partial Summary Judgment; denying 75 Motion to Strike the statement of Kevin Jackson; granting 83 Motion for Leave to File statements of additional facts and appendices out of time (See Order Text). Signed by Judge Leonard T Strand on 1/13/2017. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JEFF ROEDER and CHRISTOPHER
GRILL,
Plaintiffs,

No. C14-4091-LTS

vs.
DIRECTV, INC., and DIRECTV,
L.L.C.,

MEMORANDUM OPINION
AND ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT

Defendants.
____________________
TABLE OF CONTENTS
I. 

Introduction .................................................................................. 3 

II. 

Procedural history .......................................................................... 3 

III. 

Relevant facts ................................................................................ 4 

IV. 

Analysis ..................................................................................... 11 
A. 

DIRECTV’s Motion to Strike Statement of Kevin Jackson ............... 11 

B. 

Plaintiffs’ Motion for Leave to File Statements of Additional
Facts and Appendices Out of Time ............................................ 14 

C. 

Motions for Summary Judgment .............................................. 16 
1. 

Were Plaintiffs Properly Classified as Independent
Contractors? ............................................................... 18 
a. 

Degree of Control ................................................ 21 

b. 

Worker’s Investment ............................................ 34 

c. 

Degree to Which The Worker’s Opportunity for
Profit and Loss is Determined by The Alleged
Employer........................................................... 37 

d. 

Skill and Initiative in Performing The Job.................. 41 

e. 

Permanency ....................................................... 45 

f. 

Whether The Work is an Integral Part of The
Business............................................................ 48 

g. 

Other Factors ..................................................... 48 

h. 

Conclusion Regarding Independent Contractor
or Employee Status ............................................. 52 

2. 

Was Grill Jointly Employed By DIRECTV? ........................ 53 

3. 

Are Plaintiffs Exempt From Overtime Under The 7(i)
Exemption? ................................................................ 54 
a. 

Is DIRECTV a Retail or Service
Establishment? ................................................... 55 

b. 

Was More Than Half of Plaintiffs’ Pay
Commissions?..................................................... 61 

c. 

Was Plaintiffs’ Regular Rate of Pay At Least
One and One-Half Times the Minimum Wage?
....................................................................... 65 

4. 
5. 

Are Roeder’s Claims Barred By The FLSA’s Statute
of Limitations? ............................................................ 67 

6. 
V. 

Is There Adequate Evidence Regarding DIRECTV’s
Knowledge of Any FLSA Violations? ................................. 67 

Do Plaintiffs Have Sufficient Proof of Damages? ................. 69 

Conclusion ................................................................................. 71 

2

I.

INTRODUCTION

This case is before me on motions (Doc. Nos. 59 and 62) for summary judgment
by defendants DIRECTV, Inc., and DIRECTV, LLC,1 as to all claims asserted by
plaintiffs Jeff Roeder (Roeder) and Christopher Grill (Grill), along with plaintiffs’ motion
(Doc. No. 67) for partial summary judgment. Also before me are (1) DIRECTV’s motion
(Doc. No. 75) to strike the statement of Kevin Jackson, offered in support of plaintiffs’
motion for partial summary judgment, and (2) plaintiffs’ motion (Doc. No. 83) for leave
to file statements of additional facts and appendices out of time. All motions are resisted.
The parties have requested oral argument, but I find that oral argument is not necessary
and would serve only to cause delay. See N.D. Ia. L. R. 7(c).
II.

PROCEDURAL HISTORY

Roeder and Grill filed their complaint (Doc. No. 2) against DIRECTV on October
20, 2014.

They allege that they worked as DIRECTV technicians and assert that

DIRECTV violated the Fair Labor Standards Act of 1938 (FLSA) by failing to meet
minimum wage2 and overtime requirements. Id. DIRECTV filed a pre-answer motion
(Doc. No. 13) to dismiss on January 2, 2015. On January 19, 2015, plaintiffs requested
a stay pending the Judicial Panel on Multidistrict Litigation’s ruling on motions for
consolidation and transfer of related actions pursuant to 28 U.S.C. § 1407. Doc. No.
15. The motion was granted. Doc. No. 16. On February 12, 2015, the stay was lifted
after consolidation was denied. Doc. No. 18. The Honorable Mark W. Bennett, to

1

Defendants indicate that DIRECTV, Inc., merged into DIRECTV, LLC, effective January 1,
2012, with DIRECTV, LLC, being the surviving entity. Doc. No. 59 at n.1. While DIRECTV,
Inc., has not been dismissed as a party, for the sake of simplicity I will refer to the defendants
singularly as DIRECTV.

2

Plaintiffs later stipulated they would not seek to recover based on their minimum wage claims
under 29 U.S.C. § 206. Doc. No. 55.

3

whom this case was then assigned, denied DIRECTV’s motion to dismiss on September
22, 2015. Doc. No. 24. DIRECTV filed an answer (Doc. No. 28) to the complaint on
October 6, 2015. The case was subsequently reassigned to me.
On August 19, 2016, DIRECTV filed a motion (Doc. No. 59) for summary
judgment on Roeder’s claims and a separate motion (Doc. No. 62) for summary judgment
on Grill’s claims. DIRECTV also filed a motion (Doc. No. 65) to bifurcate/sever.3 The
same day, plaintiffs filed a joint motion for partial summary judgment on two of the same
issues. Doc. No. 67.
On September 12, 2016, DIRECTV filed a motion (Doc. No. 75) to strike the
statement of Kevin Jackson, which was submitted with plaintiffs’ statement of facts in
support of their motion for partial summary judgment. On September 13, 2016, plaintiffs
filed a motion (Doc. No. 83) for leave to file statements of additional facts and appendices
out of time. Both motions have been resisted. Doc. Nos. 90 and 93. Additionally, the
parties filed resistances and replies to each other’s motions for summary judgment. See
Doc. Nos. 87-89, 91, 97-98.
A jury trial in this matter is currently scheduled to begin June 5, 2017. Doc. No.
104.
III.

RELEVANT FACTS

The following facts are undisputed except where noted otherwise:
DIRECTV sells and provides satellite television service to the general public.
More than 75 percent of DIRECTV’s revenue comes from the sale of goods and services
to end users, meaning the goods and services are not for resale. After a customer signs
up for DIRECTV service, a technician will visit the customer’s home or business to
install the receiving equipment, which is owned by DIRECTV. Technicians may also

3

This motion has been referred to Chief United States Magistrate Judge C.J. Williams.

4

receive work orders for service calls and upgrades. All of the dishes and receivers
installed by technicians are owned by DIRECTV.

Technicians are often the only

representatives of DIRECTV who have personal contact with DIRECTV customers.
Through DIRECTV’s owned and operated division, DIRECTV Home Services,
technicians employed by contracting companies or subcontractors install and service
DIRECTV systems. Until 2008, DIRECTV entirely outsourced the installation function.
As of 2015, more than half of DIRECTV’s installations are still outsourced, meaning
DIRECTV uses both W-2 employees and 10994 subcontractor technicians to install,
service and maintain its satellite systems.
Roeder performed work orders for DIRECTV as a 1099 subcontractor through
Wireless Technologies and White Communications in South Dakota and Sioux City,
Iowa.

DIRECTV’s SIEBEL5 system indicates Roeder performed work orders for

DIRECTV from July 7, 2010, through May 31, 2012. Roeder was with Wireless
Technologies from June 2009 through June 2010. However, Roeder took a 12-week
break during that time to perform carpentry work. At some point, Wireless Technologies
became ineligible to perform DIRECTV work in the Sioux Falls, South Dakota, market
because it had been caught “ghosting.” Ghosting occurs when a subcontracting company
allows a technician to perform DIRECTV work orders using a technician identification
number that is assigned to a different individual.
Roeder began performing DIRECTV work orders through White Communications
in October 2010. He stopped working for White Communications around March 2011,
and returned in September 2011. During this time, he took 20 to 30 consecutive days
4

W-2 and 1099 refer to tax forms. W-2 forms are typically used for employees while 1099
forms are typically used for independent contractors. Use of a specific form is not determinative
of whether an individual is an employee or independent contractor. See Shelter Mut. Ins. Co.
v. Jones, 343 F.3d 925, 926 (8th Cir. 2003).
5

SIEBEL was DIRECTV’s online scheduling and management system to schedule, track and
manage installation work performed by technicians during the relevant time.

5

off from performing DIRECTV work orders to go beaver trapping. He also requested
time off to spend time with his son.
Communications in May 2012.

He ended his employment with White

Between 2009 through 2012, Roeder completed

approximately 800 DIRECTV installations. Out of these 800 installations, he can recall
only three instances when a DIRECTV employee was onsite while he completed the
orders. Roeder’s work was reported under DIRECTV’s field service site in Sioux Falls,
South Dakota, which was managed by Chet Jones during the relevant time. Roeder
interacted with his supervisor at Wireless Technologies only twice in five months. He
interacted with his supervisor at White Communications on a daily basis.
Roeder did not work exclusively for White Communications and Wireless
Technologies, as he also installed satellite systems for Dish Network, DIRECTV’s main
competitor.

Roeder also picked up side work including carpentry, landscaping,

handyman tasks, pre-cabling houses and bounty trapping. In 2012, the bulk of his income
was from sources other than DIRECTV work orders. He reported $71,292 in gross
receipts and sales for his work in 2012, of which $19,657.70 was income from White
Communications. Roeder also performed custom labor for customers who paid him
directly in cash or by check. Custom work included such things as wall fishing and
installing a pole mount.
Grill performed work orders for DIRECTV as a 1099 subcontractor through U.S.
Citadel, which was a subcontractor of HD Experts, which contracted with DIRECTV.
Pursuant to the agreement between U.S. Citadel and HD Experts, U.S. Citadel agreed to
perform DIRECTV installations, upgrades, service and repairs. DIRECTV’s SIEBEL
system indicates Grill performed work orders for DIRECTV from April 14, 2011 through
August 26, 2011. Grill’s work was reported under DIRECTV’s field service site in
Cedar Rapids, Iowa, which was managed by Kevin Jackson during the relevant time.
Grill completed hundreds of work orders for DIRECTV while with U.S. Citadel. During
this time, there were only two occasions in which a supervisor performed on-site quality
6

control inspections. Grill believed that Rich Glaspie, a DIRECTV employee, was his
direct supervisor while he was at U.S. Citadel. Grill ended his relationship with U.S.
Citadel in August 2011.
White Communications, Wireless Technologies and HD Experts all have virtually
identical Service Provider Agreements with DIRECTV. These agreements contain the
following clause:
Contractor is an independent contractor authorized during the term hereof
to perform and provide services to DIRECTV. Except as otherwise
expressly provided herein, Contractor shall have full control over the
methods, techniques, sequences, and procedures of the Services to be
provided hereunder. This Agreement is intended to create an independent
contractor relationship between the parties for purposes of federal, state and
local law, including the Internal Revenue Code of 1986, as amended.
Without limitation Contractor agrees to provide DIRECTV with a
completed “Request for Taxpayer Identification Number and Certification”
in which the applicable taxpayer identification number is identified.
Because Contractor and Contractor’s employees and subcontractors are not
employees, franchisees, agents or otherwise of DIRECTV, Contractor and
its employees and agents or otherwise of DIRECTV, Contractor and its
employees and subcontractors are not entitled to any benefits to which
DIRECTV employees may be entitled under DIRECTV policies or as
otherwise required by law, including workers’ compensation or
unemployment compensation benefits.
White Communications Service Provider Agreement at ¶ 19 (Doc. No. 69 at 46);
Wireless Technologies Service Provider Agreement at ¶ 19 (Doc. No. 69 at 192); HD
Experts Service Provider Agreement at ¶ 19 (Doc. No. 69 at 152). All subcontractors
of the contractor were also required to comply with the Service Provider Agreement.
Before DIRECTV would assign work to a subcontractor technician, he or she had
to pass a criminal background check, a drug test and a motor vehicle record review,
performed by DIRECTV’s selected vendor. DIRECTV required the subcontracting
companies to secure the written consent of each potential subcontractor to release his or
her qualifying results to DIRECTV.
7

All DIRECTV work orders were required to be performed in accordance with
DIRECTV’s Standard Professional Installation Guide (SPIG) standards. DIRECTV also
sets forth quality and technical requirements in its agreements with contractors such as
Wireless Technologies, White Communications and HD Experts. DIRECTV provides
the same technical training materials to the subcontracting companies that it provides to
its W-2 employees. The Service Provider Agreements provide that technicians must
“receive [ ] and successfully complete [ ] SBCA Certified Installer Training.” Doc. No.
69 at 63, 168, 209.
As for technicians’ dress and appearance, the Service Provider Agreements require
“all subcontractor technicians, performing Services within the residences or commercial
establishments of DIRECTV customers wear no less than the approved DIRECTV shirt
and cap while performing the services.”

Doc. No. 69 at 64, 169, 210.

The

subcontracting companies could (in their sole discretion) also require DIRECTV logos to
be displayed on vehicles and equipment.
Technicians were required to purchase work tools and equipment to perform
DIRECTV installations. However, they had the discretion to purchase these tools and
equipment from any vendor. Roeder spent $2,000 on equipment. Plaintiffs claimed these
supplies and other business expenses as deductions on their tax returns. In 2012, Roeder
claimed total expenses of $57,659. Grill claimed $5,280 in vehicle expenses and $488
in supplies for 2011. Plaintiffs were also required to have a vehicle and a computer or
cellphone with access to the internet to complete work orders. Roeder and Grill both
owned these items prior to performing DIRECTV work.
1099 technicians receive daily work orders from DIRECTV. When a customer
puts in an appointment request, SIEBEL creates a work order, which is then assigned to
a specific technician identification number.6 The system does not differentiate between
6

One exception to this is White Communications, which would receive work orders in bulk from
DIRECTV and then assign technicians to each work order.

8

in-house W-2 employee technicians and subcontractor technicians. The system selects a
specific technician for a work order based on the “three S’s”: (1) the technician’s start
and stop location (or the technician’s service area); (2) the technician’s schedule (the days
and times the technician has indicated he or she is available for work); and (3) the
technician’s skill set (any specialized skills or certifications) needed to perform the work
order. SIEBEL tracks every work order from its creation until it is closed or canceled.
SIEBEL also maintains a schedule provided by contracting companies for each
technician. This schedule contains the technician’s availability. It is not a schedule
assigned by DIRECTV to a technician. For instance, if a technician needs a sick day or
a day off for vacation, an “exception” is recorded in the SIEBEL system so no work
orders are routed to that technician’s number on that day. Unlike DIRECTV, contracting
and subcontracting companies do not have access to SIEBEL. SIEBEL also keeps
telephone numbers for technicians or the subcontractor owner or manager and keeps
records of certifications obtained by technicians. For 1099 technicians, SIEBEL also has
the technician’s preferred starting address, skill set and work order history.
DIRECTV site managers are responsible for making sure all technicians in their
region are complying with DIRECTV requirements. However, technicians are required
to communicate directly with DIRECTV for specific work order tasks, such as arriving
on site at a customer’s location. Each DIRECTV site manager receives reports showing
when technicians arrive on site at their morning and afternoon jobs. SIEBEL maintains
an expected duration for each work order and some DIRECTV site managers receive
“Assigned Duration” reports. DIRECTV personnel randomly visit a certain percentage
of customer locations after jobs have been completed by 1099 technicians for quality
assurance purposes. DIRECTV also follows up with customers through a post-call
survey. The questions asked in the survey and the metrics of success for a technician’s
work are the same regardless of whether the technician is a 1099 technician or a W-2
technician. Customers are given only DIRECTV’s central telephone number to call for
9

any issues regarding their service.
The Service Provider Agreements DIRECTV has with White Communications,
Wireless Technologies and HD Experts contain an “Exclusivity” paragraph, which
provides:
Due to the fact that Contractor will have access to Customer Information
and other DIRECTV Confidential Information as defined below, during the
term of this Agreement, Contractor agrees that neither it, nor its parent
entities, subsidiaries or affiliates, shall perform installations or Services for
any other provider or distributor of products/services which compete with
DIRECTV’s programming services or any other DIRECTV product or
service within the DMA(s) it is receiving DIRECTV work orders, except
as otherwise permitted by DIRECTV. This includes but is not limited to
the distribution via DTH/DBS, cable, MMDS, FiOS/IPTV or any and all
other technologies and media now existing or hereafter developed.
Doc. No 69 at 43-44, 149-50, 189-90.
As for payment, DIRECTV paid each contractor according to a rate matrix and
then each contractor would determine how much to pay its technicians. DIRECTV did
not determine how contracting companies or their subcontractors paid technicians –
whether hourly or via piece-rate. Roeder was paid by the job during his time with both
White Communications and Wireless Technologies. The contractor’s name appeared on
his paychecks. Grill was also paid by the job and his subcontractor’s name appeared on
his paychecks. Plaintiffs were paid a set amount for each work order, regardless of the
time it took them to complete the order. In the event DIRECTV would determine that
the services were not substantially performed pursuant to DIRECTV’s standards, it could
issue a chargeback to the contractor. It was up to the contractor or subcontractor whether
to pass this on to the technician. Grill recalled that he incurred chargebacks of $50 on
approximately four occasions.
Roeder testified that during the three years he completed DIRECTV orders, he
worked an average of 55 to 60 hours per week and was paid a gross average of $1,200
per week, or approximately $20.00 per hour.
10

He never reported the number of hours

he worked to any employee at DIRECTV, Wireless Technologies or White
Communications. Grill alleged in his complaint that he worked approximately 60 hours
per week and testified that he worked on average 55 hours per week.

He earned an

average of $18.18 per hour. DIRECTV did not keep records of the hours the plaintiffs
worked.
These facts, and others as appropriate, will be discussed in more detail in analyzing
the parties’ motions for summary judgment.
IV.

ANALYSIS

Before considering the motions for summary judgment, I must address the related
pending motions that impact the scope of the summary judgment record.
A.

DIRECTV’s Motion to Strike Statement of Kevin Jackson
DIRECTV filed a motion (Doc. No. 75) to strike a recorded statement of Kevin

Jackson7 (Jackson statement) submitted by plaintiffs in support of their motion for partial
summary judgment. DIRECTV also moved to strike any exhibits that were introduced
in support of plaintiffs’ motion through the Jackson statement and any statements of fact
which rely, in full or in part, on the Jackson statement. DIRECTV argues that the
Jackson statement is not a deposition, document, electronically stored information,
affidavit, declaration, stipulation, admission or interrogatory answer under Federal Rule
of Civil Procedure 56(c). To the extent the statement could be considered a document,
DIRECTV argues it has not been authenticated as required under Eighth Circuit law. See
Stuart v. Gen. Motors Corp., 217 F.3d 621, 635 n.20 (8th Cir. 2000) (“[t]o be considered
on summary judgment, documents must be authenticated by and attached to an affidavit
made on personal knowledge setting forth such facts as would be admissible in evidence

7

Jackson was a former Cedar Rapids site trainer and general manager for DIRECTV.

11

or a deposition that meets the requirements of Fed. R. Civ. P. 56(e).”). DIRECTV
submits that the signed statement from Jackson, as well as the declarations from members
of plaintiffs’ counsel’s law firm verifying the accuracy of the transcription, are
insufficient to transform the statement into a deposition transcript or authenticated
declaration. Thus, DIRECTV argues it should not be considered as it is inadmissible
hearsay with no exception.
Plaintiffs characterize this argument as a technical complaint and submit that a
recorded declaration from a witness who has attested it is accurate is allowed under
Federal Rule of Civil Procedure 56(c)(1)(A). Plaintiffs note that they only have to present
evidence that could be admissible at trial, not evidence that is admissible in its present
form. See Gannon Int’l Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012). Plaintiffs
explain that they had intended to depose Jackson, but when they were left without a court
reporter they, along with counsel for DIRECTV, agreed to proceed with a videotaped
interview, during which DIRECTV’s counsel was invited to participate.
Jackson was not sworn at the beginning of the interview but signed a declaration
at the end of the interview stating, “under penalty of perjury,” that “the answers [he]
gave to the questions recorded on that video tape were true and correct.” Later, the
video was transcribed by a third-party vendor and both a paralegal and attorney at
plaintiffs’ counsel’s law firm compared this transcript to the video to verify its accuracy.
Plaintiffs therefore argue that Jackson’s statement has been authenticated by his own
declaration and the declarations of counsel and professional staff. In any event, they note
DIRECTV has not claimed the transcript does not accurately portray Jackson’s
statements. Further, plaintiffs maintain that the statement would be admissible under the
hearsay exception of recorded recollection or as impeachment evidence.

Finally,

plaintiffs point out that many of the statements of fact DIRECTV wants stricken have
already been admitted by DIRECTV.
Unsworn statements may not be considered on summary judgment. See Risdal v.
12

Nixon, 589 F. App’x 801, 803 (8th Cir. 2014) (citing Adickes v. S.H. Kress & Co., 398
U.S. 144, 158 n. 17 (1970)). However, previously unsworn statements may be used if
they are subsequently reaffirmed under oath. See DG&G, Inc. v. FlexSol Packaging
Corp. of Pompano Beach, 576 F.3d 820, 825-26 (8th Cir. 2009) (holding that district
court did not abuse its discretion in considering an unsworn expert report accompanied
by an affidavit at the summary judgment stage); Maytag Corp v. Electrolux Home Prods.,
Inc., 448 F. Supp. 2d 1034, 1064 (N.D. Iowa 2006) (“subsequent verification or
reaffirmation of an unsworn expert’s report, either by affidavit or deposition, allows the
court to consider the unsworn expert’s report on a motion for summary judgment.”).
The issue is whether Jackson’s statement has been effectively cured by a verification that
the answers he provided are true and accurate.
Jackson’s statement consists of 59 pages. The final page consists of the following
typewritten statement:
I Kevin Jackson met with attorneys Todd Werts and Andrew Johnson in
Cedar Rapids, Iowa on August 2, 2106. That meeting was video-taped.
I declare under penalty of perjury that the answers I gave to the questions
recorded on that video tape were true and correct.
Doc. No. 68-2 at 161. The statement also includes a signature for Kevin Jackson and is
dated August 2, 2016.
I find that Jackson’s unsworn statement is sufficiently cured by the signed
verification at the end of the statement, along with the declarations of the transcriber and
an attorney and paralegal attesting to the accuracy of the transcript. See 28 U.S.C. §
1746 (allowing an unsworn declaration signed under penalty of perjury to serve as a
substitute for a sworn statement or affidavit). DIRECTV’s motion to strike the Jackson
statement is denied and that statement will be considered as part of the record for
purposes of summary judgment.
13

B.

Plaintiffs’ Motion for Leave to File Statements of Additional Facts and
Appendices Out of Time
On September 13, 2016, plaintiffs filed a motion (Doc. No. 83) for leave to file

statements of additional facts and appendices out of time.

Counsel noted that its

resistances to the motions for summary judgment against each plaintiff had been timely
filed the day before, on September 12, 2016. However, counsel noted that he was unable
to finalize the appendices and statements of additional facts within the deadline due to his
busy schedule. Plaintiffs seek to add nine paragraphs of additional facts in resistance to
the motion for summary judgment as to Grill and 11 paragraphs of additional facts in
resistance to the motion for summary judgment as to Roeder. These additional facts are
supported by a 68-page appendix for Grill (Doc. No. 84) and a 70-page appendix for
Roeder (Doc. No. 85).
On September 27, 2016, DIRECTV filed a response (Doc. No. 95) to the motion
for leave to submit additional statements of facts and appendices out of time, as well as
to plaintiffs’ separate motion (Doc. No. 78) to file their resistance to DIRECTV’s motion
to sever out of time (Doc. No. 78).8 DIRECTV notes this case is one of more than 40
federal lawsuits plaintiffs’ counsel has filed against DIRECTV across the country and
that plaintiffs’ counsel has similarly missed deadlines in those cases. In this case,
plaintiffs missed the deadline to respond to the motion to sever by 10 days and filed their
motion for leave to file additional statements of facts one day after the deadline.
DIRECTV focused primarily on plaintiffs’ untimely resistance to its motion to sever.9
Plaintiffs filed a reply (Doc. No. 99) on September 29, 2016, explaining that
counsel had mistakenly scheduled out-of-town depositions of DIRECTV witnesses in
related cases on the same day as the deadline for the resistances to DIRECTV’s motions
8

This motion was referred to Chief United States Magistrate Judge C.J. Williams.

9

Judge Williams granted plaintiffs’ motion (Doc. No. 78) for leave to file their resistance to the
motion to sever out of time on October 11, 2016. Doc. No. 100.

14

for summary judgment. Plaintiffs filed their resistances to the motions by the deadline,
but had not finalized the statements of facts and appendices by that time. Therefore, they
sought leave to file additional statements of facts and appendices two hours after the
deadline had passed, attaching the proposed additional statements of facts and appendices
to their motion. DIRECTV has responded to these additional statements of facts in its
replies. See Doc. Nos. 97-2 and 98-2.
Pursuant to the Federal Rules of Civil Procedure, “the court may, for good cause,”
extend a deadline “on motion made after the time has expired if the parties failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Excusable neglect is an
“elastic concept” and requires the court take into account “all relevant circumstances
surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 392-95 (1993). These circumstances include: (1) the possibility
of prejudice to the opposing party, (2) the length of the moving party’s delay and the
possible impact of that delay on judicial proceedings, (3) the moving party’s reasons for
delay, including whether the delay was within their reasonable control and (4) whether
the moving party acted in good faith. See Chorosevic v. MetLife Choices, 600 F.3d 934,
946 (8th Cir. 2010) (citing Sugarbaker v. SSM Health Care, 187 F.3d 853, 856 (8th Cir.
1999)).
Here, the possibility of prejudice was minimal, if at all. Indeed, DIRECTV did
not allege prejudice as a result of the late filing. As to the length of the delay, it can be
measured in hours, not days, and the majority of the resistances were timely filed.
Moreover, DIRECTV has responded to the additional facts such that there will be no
impact on judicial proceedings. Plaintiffs’ counsel indicated the delay was due to being
scheduled for out-of-town depositions the same day plaintiffs’ resistances to the motions
for summary judgment were due. While a busy schedule does not typically constitute
excusable neglect, see Hawks v. J.P. Morgan Chase Bank, 591 F.3d 1043, 1048 (8th
Cir. 2010), it appears plaintiffs’ counsel made a good faith effort to file the entire
15

resistance by the deadline, with the additional statements of facts and appendices missing
the deadline by only a couple of hours.

These additional statements of facts and

appendices are limited in number and volume.
Based on the above-described circumstances, I find plaintiffs have demonstrated
excusable neglect. Their motion (Doc. No. 83) for leave to file statements of additional
facts and appendices out of time is granted. I will consider the additional statements of
facts and appendices (and, of course, DIRECTV’s responses thereto) in considering
DIRECTV’s motions for summary judgment.
C.

Motions for Summary Judgment
DIRECTV has filed separate motions for summary judgment as to each plaintiff

and raises the following issues:
1.

Whether plaintiffs were properly classified as independent contractors;

2.

Whether Grill was jointly employed by DIRECTV;

3.

Whether plaintiffs were exempt from overtime under the 7(i) exemption to
the FLSA;

4.

Whether plaintiffs have adequate evidence regarding DIRECTV’s
knowledge of any alleged FLSA violations;

5.

Whether Roeder’s claims are time-barred by the FLSA’s statute of
limitations; and

6.

the sufficiency of plaintiffs’ proof of damages.

See Doc. Nos. 59-3 at 3-5 and 62-3 at 4-6.
Plaintiffs seek summary judgment in their favor on the first and third issues. They
contend the undisputed facts demonstrate an employer-employee relationship between
each of them and DIRECTV and that DIRECTV’s affirmative defense of an exemption
under 7(i) fails as a matter of law. They argue I should rule on liability such that a jury
would be required to determine only: (1) the extent of their unpaid work and (2) whether
DIRECTV acted in good faith or willfully violated the FLSA.
16

Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of 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 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question.” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475
U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The party moving
for entry of summary judgment bears “the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once
the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or otherwise, designate specific facts showing that there
17

is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir.
2005). The nonmovant must show an alleged issue of fact is genuine and material as it
relates to the substantive law. If a party fails to make a sufficient showing of an essential
element of a claim or defense with respect to which that party has the burden of proof,
then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at
322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. Id. However, “because we view the facts in the light
most favorable to the nonmoving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a
dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1376-77 (8th Cir. 1996).
On cross motions for summary judgment, the “court must rule on each party’s
motion on an individual and separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56 standard.” 10A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720
(3d ed. 1998). Because the parties seek summary judgment on some of the same issues,
I will consider all the parties’ arguments as to each issue, keeping in mind the separate
inferences that are to be drawn from each motion. See Wright v. Keokuk Cnty. Health
Ctr., 399 F. Supp. 2d 938, 946 (S.D. Iowa 2005).
1.

Were Plaintiffs Properly Classified as Independent Contractors?

Under the FLSA, only employees are entitled to overtime compensation. See 29
U.S.C. § 216(b). Independent contractors do not enjoy the FLSA’s protections. The
18

FLSA defines “employee” as “any individual employed by an employer.” 29 U.S.C. §
203(e)(1). “Employ” under the FLSA “includes to suffer or permit to work.” 29 U.S.C.
§ 203(g). To determine whether an individual is an employee under the FLSA, the Eighth
Circuit uses the “economic realities” test. See Ash v. Anderson Merchandisers, LLC,
799 F.3d 957, 961 (8th Cir. 2015); see also Bartels v. Birmingham, 332 U.S. 126, 130
(1947) (“employees are those who as a matter of economic reality are dependent upon
the business to which they render service”). While the Eighth Circuit has not itemized
the factors it considers for this test, other courts generally rely on six factors:10
(a)

the degree of control exercised by the alleged employer;

(b)

the worker’s investment in the business;

(c)

the degree to which the worker’s opportunity for profit and loss is
determined by the alleged employer;

(d)

the skill and initiative in performing the job;

(e)

the permanency of the relationship; and

(f)

the extent to which the work is an integral part of the alleged
employer’s business.

See Dole v. Amerilink Corp., 729 F. Supp. 73, 75-76 (E.D. Mo. 1990) (citing Sec’y of
Labor, United States Dept. of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir. 1987)).
See also Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir. 1988); Martin
v. Selker Bros., 949 F.2d 1286, 1293 (3d Cir. 1991); Schultz v. Capital Intern. Sec.,
Inc., 466 F.3d 298, 304-05 (4th Cir. 2006); Hopkins v. Cornerstone America, 545 F.3d
338, 343 (5th Cir. 2008); Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754
(9th Cir. 1979); Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012);
Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1312 (11th Cir. 2013). No one factor
is controlling and the court must base its decision on the totality of the circumstances.
See Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 (1947) (noting the employer10

These factors are often referred to as the Silk factors, as they originated from United States v.
Silk, 331 U.S. 704, 716 (1947).

19

employee relationship depends “upon the circumstances of the whole activity”); see also
Brock, 840 F.2d at 1059. The above list of factors is also not exhaustive. Id.
DIRECTV relies on several cases in which courts have determined that cable or
satellite television installers are independent contractors under the FLSA. See Bennett v.
UniTek Global Servs., LLC, No. 10 C 4968, 2013 WL 4804841, at *4-11 (N.D. Ill. Sept.
9, 2013); Scruggs v. Skylink, Ltd., Civil Action No. 3:10-0789, 2011 WL 6026152 (S.D.
W. Va. Dec. 2, 2011); Chao v. Mid-Atlantic Installation Servs., Inc., 16 F. App’x 104
(4th Cir. 2001). Of course, for each case DIRECTV cites, plaintiffs cite a case reaching
the opposite conclusion (or at least finding a genuine issue of material fact on the issue).
See Keller v. Miri Microsystems LLC, 781 F.3d 799 (6th Cir. 2015); Lang v. DirecTV,
Inc., 801 F. Supp. 2d 532, 534 (E.D. La. 2011); Perez v. Lantern Light Corp., No. C1201406, 2015 WL 3451268 (W.D. Wash. May 29, 2015).11

This is hardly surprising

11

The United States District Court for the Eastern District of Missouri recently summarized the
varying results around the country as follows:
Following bench trials, the court in Solis v. Cascom, Inc., 3:09CV257, 2011 WL
10501391, (S.D. Ohio Sept. 21, 2011) held that cable installers were employees
under the FLSA, and the court in Parrilla v. Allcom Const. & Installation
Services, LLC, 6:08–cv–1967–Orl–31GJK, 2009 WL 2868432 (M.D. Fla. Aug.
31, 2009) held that cable installers were independent contractors exempt from the
FLSA. Some courts faced with motions for summary judgment on the issue of
whether cable installers are employees under the FLSA or independent contractors
exempt from the FLSA have found that substantial factual disputes precluded
summary judgment. See Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (11th
Cir. 2013); Lang v. DirecTV, Inc., 801 F.Supp.2d 532 (E.D. La.2011); Keeton
v. Time Warner Cable, Inc., 2:09–CV–1085, 2011 WL 2618926 (S.D. Ohio July
1, 2011); Muller v. AM Broadband, LLC, 07–60089–CIV, 2008 WL 708321
(S.D. Fla. March 14, 2008); Santelices v. Cable Wiring, 147 F.Supp.2d 1313
(S.D.Fla.2001). Other courts have granted summary judgment finding that cable
installers were independent contractors based on the particular facts of those
cases. See Keller v. Miri Microsystems, LLC, 12–15492, 2014 WL 1118446 (E.D.
Mich. March 20, 2014) [vacated by Keller v. Miri Microsystems LLC, 781 F.3d

20

given that the Panel on Multidistrict Litigation denied plaintiffs’ motion for consolidation
based, in part, on the “individualized inquiry” of whether an individual is an employee
or independent contractor for nearly 500 plaintiffs. See Doc. No. 17-1. Because this is
a fact-intensive “individualized inquiry,” the cases cited by the parties have limited value
in determining whether there is a genuine issue of material fact as to whether these
plaintiffs were employees under the FLSA. Nonetheless, I will compare and contrast the
facts in those cases with the facts presented in this case.
“Whether a FLSA plaintiff is an employee is a mixed question of law and fact.”
Miri Microsystems LLC, 781 F.3d at 806. “While the existence and degree of each factor
is a question of fact . . . the legal conclusion to be drawn from those facts – whether
workers are employees or independent contractors – is a question of law.” Saleem v.
Corporate Transp. Group, Ltd., 52 F. Supp. 3d 526, 536 (S.D.N.Y. 2014) (internal
quotations omitted). “[W]here there is a genuine issue of fact or conflicting inferences
can be drawn from the undisputed facts, . . . the question is to be resolved by the finder
of fact in accordance with the appropriate rules of law.” Miri Microsystems LLC, 781
F.3d at 806.
a.

Degree of Control

The first factor is the degree of control an employer has over an alleged employee.

799 (6th Cir. 2015)]; Bennett v. Unitek Global Services, LLC, 10C4968, 2013
WL 4804841 (N.D. Ill. Sept. 9, 2013); Scruggs v. Skylink, Ltd., 3:10–0789, 2011
WL 6026152 (S.D. W.Va. Dec. 2, 2011); Chao v. Mid–Atlantic Installation
Services, Inc., 16 Fed.Appx. 104 (4th Cir. 2001); Herman v. Mid–Atlantic
Installation Services, Inc., 164 F. Supp. 2d 667 (D. Md. 2000). It is clear from
the foregoing cases that the analysis is fact intensive and each court must make
the determination as to the employment relationship on the particular facts before
them.
Thornton v. Mainline Commc’ns, LLC, 157 F. Supp. 3d 844, 848-49 (E.D. Mo. 2016).

21

“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.” Scantland,
721 F.3d at 1313 (citing Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308, 1311-12
(5th Cir. 1976)). DIRECTV argues that the undisputed evidence weighs in favor of
finding that Roeder was properly classified as an independent contractor and relies on the
following facts:
 Roeder spent the vast majority of his time working independently in the field.
Doc. No. 59-1 at ¶ 27.
 Roeder testified that he spent “99 percent” of his time working autonomously and
without any supervision from DIRECTV, Wireless Technologies or White
Communications. Id.
 Roeder testified he only saw his Wireless Technologies supervisor twice in five
months and his White Communications supervisor approximately once per day.
Id. at ¶ 34.
 Roeder did not have to report to anyone at DIRECTV as he completed work
orders.12 Id. at ¶ 35.
 Roeder never reported the actual number of hours he worked to any employee of
DIRECTV or either subcontractor. Id. at ¶ 32.
 Roeder could perform work orders outside his scheduled time slot without
consequence.13 Id. at ¶ 31.
12

Roeder denies this fact. See Doc. No. 80-2 at ¶ 35. He states that while he testified he did
not have to call any particular person at DIRECTV as he completed work orders, he did have to
communicate that fact to DIRECTV through the SIEBEL system, which he accessed on a
handheld device and later through his mobile phone.

13

Roeder denies this fact. See Doc. No. 80-2 at ¶ 31. He notes that his testimony on this point
was that there were no consequences “as long as the customer didn’t complain.” See Doc. No.
59-2 at 121.

22

 Roeder took off time every November to go beaver trapping. Id. at ¶ 52.
 Roeder rejected the position of a W-2 employee technician and decided to work as
an independent contractor for White Communications.14 Id. at ¶ 22.
Roeder disagrees that the undisputed facts support a finding that he was an independent
contractor. Indeed, he argues the undisputed facts establish that DIRECTV did maintain
a high degree of control over him, either directly or indirectly. He cites paragraphs 27
through 65 of plaintiffs’ statement of undisputed facts (Doc. No. 72) in support. Only
the following of those paragraphs are admitted by DIRECTV:
 All DIRECTV work orders must be performed according to the SPIG’s
specific standards. Doc. No. 87-1 at ¶ 29.15
 DIRECTV makes the same training materials available to subcontracting

14

Roeder denies this fact. See Doc. No. 80-2 at ¶ 22. He cites his deposition testimony, in
which he testified he was presented the option to work either directly for DIRECTV as a W-2
employee or through a subcontractor and could not recall the reason he ended up with White
Communications. In any event, I do not find this fact material to the issue of whether DIRECTV
exerted a significant degree of control over Roeder.
15

DIRECTV contends plaintiffs’ Exhibit 13 is not authenticated and lacks foundation, such that
it is not “competent evidence” for purposes of summary judgment. Plaintiffs’ Exhibit 13 appears
to be a copy of DIRECTV’s 2003 Standard Professional Installation Guidelines (revised on June
3, 2010). Plaintiffs point out in their reply (Doc. No. 91) in support of their motion for partial
summary judgment that this document was produced by DIRECTV and used as an exhibit in the
deposition of David Baker, an executive of DIRECTV. Plaintiffs’ counsel has submitted a
declaration stating as such. See Doc. No. 68-2 at ¶ 17. “[T]he standard is not whether the
evidence at the summary judgment stage would be admissible at trial – it is whether it could be
presented at trial in an admissible form.” Gannon Int’l Ltd., 684 F.3d at 793. Proper foundation
and authenticity for this document (and others) could be established if offered at trial through the
testimony of the people who created or maintained the documents. DIRECTV’s evidentiary
objections to documents on these bases (lack of foundation and authenticity) are overruled for
purposes of summary judgment.

23

company principals as it uses with W-2 employee technicians. Id. at ¶ 33.16
 DIRECTV maintains standards applicable to 1099 technicians on their
grooming and appearance. Id. at ¶ 36.
 DIRECTV created daily work orders and assigned those work orders to
individual technicians, including Plaintiffs. Id. at ¶ 37.
 DIRECTV maintained an online scheduling and management system called
SIEBEL to schedule, track, and manage all DIRECTV installation work
performed by any technician, including Plaintiffs. Id. at ¶ 38.
 DIRECTV’s SIEBEL system contained a schedule for each technician,
including Plaintiffs which was used by DIRECTV’s SIEBEL system to
randomly soft book work orders to individual technicians. Id. at ¶ 39.
 Within DIRECTV’s SIEBEL system, the technician’s schedule reflects the
time period in which a technician may be scheduled to begin a job, not
necessarily finish. Id. at ¶ 40.
 When 1099 subcontractor technicians like Plaintiffs needed a day off for
vacation or being sick, that “exception” was recorded in DIRECTV’s
SIEBEL system. Id. at ¶ 41.
 DIRECTV’s subcontracting companies did not have full access to SIEBEL.
Id. at ¶ 43.
 DIRECTV site manager Jones was ultimately responsible for the work of
all the technicians assigned to his site, including 1099 subcontractor
technicians like Plaintiffs. Id. at ¶ 44.
16

While DIRECTV admits this fact, it argues that Exhibit 19 (a purported copy of the DIRECTV
Required Training October 2010 Facilitator Guide) is not authenticated, is dated outside the
period of time (June 2009 to June 2010) that Roeder worked for Wireless Technologies, and that
the citation to Jackson’s statement only applies to Grill, not Roeder. Moreover, it argues that
plaintiffs cite to no record evidence that Roeder or Grill ever received any training materials
from DIRECTV during their employment with their respective subcontractors. Plaintiffs
respond that this document was produced by DIRECTV in related litigation. See Doc. No. 91
at 5. They also state it was offered as an example of the training materials DIRECTV provided
to subcontractor and W-2 technicians. I will consider this context in my evaluation of this factor.

24

 DIRECTV’s SIEBEL system tracks every work order throughout its lifecycle until the work order is either closed or cancelled. Id. at ¶ 46.
 Every work order within SIEBEL is associated to a unique technician
identification number. Id. at ¶ 47.
 All technicians – whether they were W-2 employees or subcontractor
technicians – were required to be able to communicate directly with
DIRECTV. Id. at ¶ 48.
 Plaintiffs were required to notify DIRECTV when they arrived on site at a
customer’s location; that information was tracked inside DIRECTV’s
SIEBEL system. Id. at ¶ 49.
 DIRECTV site manager Jones would regularly receive reports called the
“On-Site AM Report” showing the time that every technician, including
both W-2 employees and 1099 contractors, working through his or her site
arrived at the first job of the morning and the first job of the afternoon. Id.
at ¶51.
 For a certain percentage of jobs completed by subcontractor technicians,
DIRECTV personnel visited customer locations after work had been done
to perform a quality assurance review. Id. at ¶ 53.
 DIRECTV customers were only given DIRECTV’s central telephone
number. Id. at ¶ 54.
 The difference between how DIRECTV handles Field Service Requests
(FSRs) for W-2 employees and 1099 subcontractors is which supervisor it
is initially forwarded to. Id. at ¶ 56.17
As to Grill, DIRECTV cites the following undisputed facts as demonstrating

17

DIRECTV points out that only Jackson’s statement is cited in support of this fact, and
therefore, it would not apply to subcontractors who engaged Roeder.

25

insufficient control to characterize him as an employee:
 Grill worked autonomously in the field unsupervised by anyone. Doc. No. 62-1
at ¶ 33.
 He was not required to check in with a supervisor on a regular basis.18 Id. at ¶
36.
 On most days, Grill drove from his house to various jobs at customers’ homes and
then back home at night. Id. at ¶ 34.
 He only made occasional visits to the warehouse, going there to pick up supplies
once or twice per week.19 Id. at ¶ 35.
 Grill did not receive detailed instruction about how to perform his work and he
could control the order and manner in which he completed his work orders.20 Id.
18

Grill denies this statement, citing his own testimony that he did report to a supervisor during
the day when he had a problem. See Doc. No. 88-1 at ¶ 36.

19

Grill admits this statement but notes that his testimony indicated his weekly or bi-weekly trips
to the warehouse were routine, not “occasional.” The word “routine” does not appear in the
parts of Grill’s deposition cited by plaintiffs. Moreover, the testimony cited by Grill (Doc. No.
88-2 at 29-34) does not describe the nature of Grill’s trips to the warehouse. Instead, Grill’s
precise testimony on this point, as cited by DIRECTV, is as follows:
Q.
A.
Q.
A.
Q.
A.

How many days a week did you go to the warehouse?
Usually at least once a week. A lot of weeks it was twice. And depending
on if there was the right equipment available to do the job the way that it
said on the -- I’m making another trip. And then – Yeah.
Did you try to minimize trips to the warehouse?
Yes.
And did you keep DIRECTV equipment in your garage in an effort to
minimize the number of times a week you had to go to the warehouse?
Yes. Yes.

Doc. No. 62-2 at 65.
20

Grill denies both of these statements, pointing out that he testified there “were variables” he

26

at ¶¶ 37, 39.
 He could run personal errands during the day.21 Id. at ¶ 42.
 He arrived at jobs outside the scheduled appointment window without
consequence. Id. at ¶ 40.
 In his short six-month engagement with U.S. Citadel, he declined to perform a
had to deal with such as where to mount the dish and the best way to run the wires. He points
out that DIRECTV provided detailed instructions on other aspects of his work including what a
technician should do while approaching the worksite, what words to use when talking to the
customer, what size drill bit to use when mounting the dish, how much to charge for custom
labor work, and what instructions to leave behind with the customers. See Doc. No. 72 at ¶ 29.
Grill also denies that he could not control the order in which he completed his work. He points
out that DIRECTV’s paragraph 71 states, “[c]ustomers are booked into an appointment window
based on their desired time slot,” which suggests Grill did not have control over the order he
performed his work. However, Grill also testified that he tried to arrange the work orders in a
logical way to minimize his driving and fueling. See Doc. No. 62-2 at 55.
21

Grill denies this statement. His precise testimony on this point, as cited by both plaintiffs and
DIRECTV, is as follows:
Q.
A.

Q.
A.

And if you needed to run a personal errand during the day, could you do
that?
As long as I was in a position where dispatch knew when I was expected,
my customers knew when I was expected. Yeah. Because random tasks
had to be done. There had to be gas put in the van, you know. There
might be a stop off for a slice of pizza at Casey’s or something you know.
Other than – you know, other than that, no, there was no going to the mall
or spending time doing anything else. I was focused on work and get the
– the jobs that DIRECTV was mandating me to have done that day – to
get them done, to the best of my ability.
If you needed to run into the grocery store for something, could you do
that?
I don’t think you had anything in place that would deny someone from
doing that.

Doc. No. 62-2 at 78.

27

work order without consequence when there was inclement weather.22 Id. at ¶ 43.
 He never received any discipline and never had a performance review.23 Id. at ¶¶
44-45.
 In Grill’s own words, this “wasn’t that kind of job where . . . you need
supervision.” Id. at ¶ 36.
Plaintiffs also argue that the degree of control cannot be compared between
DIRECTV and the subcontractor. They contend the court must consider the “degree of
the control that the alleged employer has in comparison to the control exerted by the
worker.” See Schultz, 466 F.3d at 305. To be clear, this means I must consider the
degree of control DIRECTV had over Roeder and Grill, not the degree of control
DIRECTV had over the subcontractors or the degree of control the subcontractors had
over Roeder and Grill.
The material undisputed and disputed facts on this factor can be summarized as
follows:

22

Grill denies this statement. Grill’s precise testimony on this point, as cited by both plaintiffs
and DIRECTV, is as follows:
Q.
A.

So if there was a thunderstorm, would you be the one that would decide
“This is crazy. I’m not going to install this satellite dish,” or would
somebody tell you not to?
I would have somebody tell me not to, after assessing the situation – and
myself first. I guess I would never make the final decision on this job is
not getting done.

Doc. No. 62-2 at 70.
23

Grill denies that he never had a performance review. He cites to his deposition testimony in
which he testified “Rich” was on-site watching him perform his work orders on two specific
occasions. Doc. No. 62-2 at 38. In the testimony cited by DIRECTV, Grill testified that
someone reviewed his performance metrics with him only during training and no one ever talked
to him about what percentage of SIN7s (Service within 7) he had or what percentage of receivers
were successfully connected to the Internet. Doc. No. 62-2 at 60-61.

28

Plaintiff Roeder
Undisputed Facts
From DIRECTV
Roeder spent the vast majority of his time
working independently in the field
Roeder testified that he spent “99 percent”
of his time working autonomously and
without any supervision from DIRECTV,
Wireless
Technologies
or
White
Communications
Roeder did not have to report to anyone at
DIRECTV as he completed work orders
Roeder never reported the actual number
of hours he worked to any employee of
DIRECTV or either subcontractor
Roeder took off time every November to
go beaver trapping

Disputed Facts

Plaintiff Grill
Undisputed Facts
From DIRECTV
Grill worked autonomously in the field
unsupervised by anyone
He was not required to check in with a
supervisor on a regular basis
On most days, Grill drove from his house
to various jobs at customers’ homes and
then back home at night

Disputed Facts
Disputed by Grill
Grill could control the order and manner
in which he completed his work orders
He could run personal errands during the
day
In his short six-month engagement with
US Citadel, he declined to perform a work
order without consequence when there was
inclement weather
He only made occasional visits to the He never received any discipline and
warehouse, going there to pick up supplies never had a performance review
once or twice per week
He arrived at jobs outside the scheduled
appointment window without consequence
In Grill’s own words, this “wasn’t that
kind of job where . . . you need
supervision.”
29

Both Plaintiffs
Undisputed Facts
Disputed Facts
From Plaintiffs
Disputed by DIRECTV
All DIRECTV work orders must be DIRECTV had the authority to prohibit
performed according to the SPIG’s Plaintiffs or any subcontractor technician
specific standards
from continuing to receive work orders
because of performance or disciplinary
issues. Doc. No. 76-2 at ¶ 27.
DIRECTV makes the same training DIRECTV promulgated mandatory rules
materials available to subcontracting policies, and practices regarding the
company principals as it uses with W-2 manner and method by which installations
employee technicians
were to be performed, which are
summarized in DIRECTV’s SPIG. Id. at
¶ 28.
DIRECTV maintains standards applicable Plaintiffs were prohibited from deviating
to 1099 technicians on their grooming and from DIRECTV’s written standards in
appearance
performing
their
work
without
DIRECTV’s prior written approval. Id. at
¶ 30.
DIRECTV created daily work orders and Plaintiffs were required to use only tools
assigned those work orders to individual and supplies that were approved by
technicians, including plaintiffs
DIRECTV. Id. at ¶ 31.
DIRECTV
maintained
an
online DIRECTV maintained ongoing written
scheduling and management system called communication with subcontractors by
SIEBEL to schedule, track, and manage distributing Blast Facts and Tech Tips to
all DIRECTV installation work performed the subcontracting company leads, which
by any technician, including plaintiffs
contained updates on DIRECTV’s policies
and procedures. Id. at ¶ 32.
DIRECTV’s SIEBEL system contained a If a subcontractor did not timely acquire
schedule for each technician, including the
DIRECTV-required
training
Plaintiffs which was used by DIRECTV’s certifications, DIRECTV’s site manager
SIEBEL system to randomly soft book Chet Jones would not allow him to work
work orders to individual technicians
in his market. Id. at ¶ 34.
Within DIRECTV’s SIEBEL system, the DIRECTV required all technicians,
technician’s schedule reflects the time including plaintiffs, to wear a DIRECTV
period in which a technician may be uniform, drive a DIRECTV-branded
scheduled to begin a job, not necessarily vehicle, and display DIRECTV-marked
finish
credentials. Id. at ¶ 35.
When 1099 subcontractor technicians like If a work order assigned to a subcontractor
30

Plaintiffs needed a day off for vacation or technician needed to be reassigned to
being sick, that “exception” was recorded another technician, the subcontracting
in DIRECTV’s SIEBEL system
supervisor had to call or email DIRECTV
to request the reassignment. Id. at ¶ 42.
DIRECTV’s subcontracting companies DIRECTV site managers discussed
did not have full access to SIEBEL
individual technician performance with
subcontracting company managers in
order to effect behavioral changes within
the 1099 subcontractor workforce. Id. at
¶ 45.
DIRECTV site manager Jones was DIRECTV personnel monitored plaintiffs’
ultimately responsible for the work of all work. Id. at ¶ 50.
the technicians assigned to his site,
including 1099 subcontractor technicians
like plaintiffs
DIRECTV’s SIEBEL system tracks every At least weekly, DIRECTV site managers
work order throughout its life-cycle until would receive a report showing the total
the work order is either closed or amount of time that DIRECTV expected
cancelled
every technician, including both W-2
employees and 1099 contractors, to be
inside DIRECTV customers’ homes
during a particular day (though site
manager could pull this report themselves
at any time). Id. at ¶ 52.
Every work order within SIEBEL is If a DIRECTV customer calls into
associated to a unique technician DIRECTV’s customer service center and
identification number
asks for a concern to be addressed, the
local site receives a FSR. Id. at ¶ 55.
All technicians – whether they were W-2 DIRECTV used post-installation customer
employees or subcontractor technicians – surveys to rate plaintiffs’ work as it related
were required to be able to communicate to customer experience in the same
directly with DIRECTV
manner it rated the work of its W-2
technicians. Id. at ¶ 57.
Plaintiffs were required to notify DIRECTV site managers used reports
DIRECTV when they arrived on site at a called technician report cards to identify
customer’s location; that information was particular technicians, including 1099
tracked inside DIRECTV’s SIEBEL subcontractor technicians, who were
system
having issues with properly completing
their work. Id. at ¶ 58.
DIRECTV site manager Jones would Subcontracting companies are provided
31

regularly receive reports called the “OnSite AM Report” showing the time that
every technician, including both W-2
employees and 1099 contractors, working
through his or her site arrived at the first
job of the morning and the first job of the
afternoon
For a certain percentage of jobs completed
by subcontractor technicians, DIRECTV
personnel visited customer locations after
work had been done to perform a quality
assurance review
DIRECTV customers were only given
DIRECTV’s central telephone number

the technician report card weekly and its
contents are discussed with the applicable
DIRECTV site manager. Id. at ¶ 59.

DIRETV measured plaintiffs’ work
performance against metrics it developed
and circulated reports identifying lowperforming technicians. Id. at ¶ 60.

DIRECTV held regular meetings with
subcontractor
principals
regarding
bottom-performing technicians. Id. at ¶
61.
The difference between how DIRECTV Once a month, subcontracting company
handles FSRs for W-2 employees and technicians, like plaintiffs, had to gather
1099 subcontractors is which supervisor it all of the DIRECTV-issued equipment so
is initially forwarded to
that DIRECTV personnel could perform
an inventory of that equipment. Id. at ¶
62.
Similar circumstances have led some courts to find that the workers were

independent contractors. See Freund v. Hi-Tech Satellite, Inc., 185 F. App’x 782, 783
(11th Cir. 2006) (per curiam) (affirming the district court’s finding that plaintiff was
independent contractor where plaintiff had to wear certain shirts during appointments,
follow certain specifications for installations and call the satellite company to confirm
installation and report any problems); Dole, 729 F. Supp. at 76-77 (concluding cable
television installers were independent contractors based, in part, on fact that cable
provider exercised no control over manner in which installers performed their tasks, the
hours they worked, or the number of jobs they performed, and that quality controls and
requirement of wearing a generic “cable television” insignia on their shirts did not amount
to degree of control to make installers employees).
32

Other courts have found a genuine issue of material fact under similar
circumstances. See Pennington v. Integrity Commc’ns, Inc., No. 1:12CV5SNLJ, 2014
WL 2106301, at *5 (E.D. Mo. May 20, 2014) (noting the parties told “a very different
story as to how much control defendants exercised over plaintiffs’ work” and that the
court could not make credibility and factual determinations on a summary judgment
motion); Lang, 801 F. Supp. 2d at 537 (finding material facts in dispute included whether
defendants threatened to fire technicians who did not work evening shifts, whether
plaintiffs received DIRECTV’s Blast Facts and other memoranda, the degree of discretion
plaintiffs retained in performing their jobs, and whether plaintiffs were “charged back”
more than they earned on particular jobs). In some of these cases, the defendant was the
contracting company while in others it was the cable provider. Regardless, the analysis
is the same and, in this case, applies only to DIRECTV’s actions and not those of Wireless
Technologies, White Communications, U.S. Citadel or HD Experts.
Essentially, DIRECTV’s position is that any “control” it had over plaintiffs was
for purposes of efficiency, consistency and quality control. Plaintiffs argue this same
evidence suggests a level of control by DIRECTV that made them employees rather than
independent contractors. Some courts have found that “[r]equiring installers to meet
installation specifications for a customer, and to provide periodic updates on an order’s
status, ‘is entirely consistent with the standard role of a contractor who is hired to perform
highly technical duties.’” See Scruggs, 2011 WL 6026152, at *3 (quoting Herman v.
Mid-Atlantic Installation Servs., Inc., 164 F. Supp. 2d 667, 671 (D. Md. 2000)). Other
courts have not. See Scantland, 721 F.3d at 1315 (finding that defendant’s quality control
measures were one of numerous indicia of control that strongly suggested an employeeemployer relationship).
Clearly, not all facts related to this factor, or the inferences to be drawn from
them, are undisputed. “[W]here there is a genuine issue of fact or conflicting inferences
can be drawn from the undisputed facts, . . . the question is to be resolved by the finder
33

of fact in accordance with the appropriate rules of law.” Miri Microsystems LLC, 781
F.3d at 806 (quoting Lilley v. BTM Corp., 958 F.2d 746, 750 n.1 (6th Cir. 1992)). When
viewing the facts in the light most favorable to plaintiffs for purposes of DIRECTV’s
motions for summary judgment, I find a reasonable jury could find in favor of plaintiffs
on this factor. When viewing the facts in the light most favorable to DIRECTV for
purposes of plaintiffs’ motion for summary judgment, I find a reasonable jury could find
in favor of DIRECTV on this factor. Therefore, I find a genuine issue of material fact
as to the “degree of control” factor. Because the economic reality test is multi-factored,
I will consider the other factors to determine whether summary judgment is appropriate
in favor of either party.
b.

Worker’s Investment

The second factor considers the amount the worker has invested in the business.
The worker’s investment must be compared to that of the alleged employer. Dole v.
Snell, 875 F.2d 802, 810 (10th Cir. 1989). DIRECTV contends the following undisputed
facts demonstrate that Roeder made a significant investment in the tools, equipment,
materials and other items he needed to perform DIRECTV work such that this factor
weighs in favor of finding that Roeder was an independent contractor:
 Roeder purchased a $20,000 Ford pickup truck, which he used when performing
DIRECTV orders.24 Doc. No. 59-1 at ¶ 36.
 He owned the cellphone and computer he used to retrieve work orders. Id. at ¶
41.
 Roeder spent $2,000 on the equipment he used to perform installations for both
White Communications and Wireless Technologies. Id. at ¶ 38.

24

Roeder notes that he had the Ford pickup before he started doing DIRECTV work. See Doc.
No. 80-2 at ¶ 36.

34

 He retained discretion to purchase this equipment from any seller he chose. Id. at
¶ 39.
 Roeder took itemized tax deductions for his equipment when reporting to the IRS
that he operated a business.25 Id. at ¶ 42-43.
As to Grill, DIRECTV contends the following undisputed facts demonstrate Grill
also made a significant investment, which weighs in favor of a finding that he was an
independent contractor:
 Throughout his relationship with U.S. Citadel, Grill made a significant personal
investment in his business, including the purchase of his own tools, equipment,
and materials and the use of his own vehicle and computers.26 Doc. No. 62-1 at
¶ 65.
 He never sought reimbursement for these expenses, instead taking tax deductions
for them when reporting to the IRS that he was operating a business. Id. at ¶ 67.
DIRECTV cites three unpublished cases in support of its argument that these facts
are sufficient to establish “independent contractor” status. See Krupicki v. Eagle One,
Inc., No. 4:12-cv-00150, 2014 U.S. Dist. LEXIS 46038, at *15-16 (E.D. Ark. Apr. 3,
2014) (finding plaintiff’s responsibility to provide own truck or van and specialty tools
weighed in favor of plaintiff being an independent contractor); Scruggs, 2011 WL
6026152, at *6 (finding this factor weighed in favor of independent contractor status
when plaintiffs were responsible for providing their own work equipment and vehicles
and had retained other individuals to assist them in providing installation services); Chao,
16 F. App’x 104, at *3 (finding that this factor weighed in favor of independent contractor
status when plaintiffs were required to supply their own trucks (equipped with 28-foot
25

Roeder denies that he reported to the IRS that he operated a business by merely reporting his
1099 income. See Doc. No. 80-2 at ¶ 42.

26

As to this statement of fact, Grill admits only that he had to purchase the equipment described
in order to perform his DIRECTV work orders. He denies that these constituted a “substantial
investment.” See Doc. No. 79-2 at ¶ 65.

35

ladders), specialized tools, uniforms, and pagers and had the right to employ their own
workers).
Plaintiffs argue these cases are inapposite. In both Scruggs and Chao, the court
considered whether the installers were employees of subcontracting companies, not the
cable provider.

Moreover, the courts noted that the plaintiffs were themselves

subcontractors who paid technician employees and had to manage the overhead costs of
their businesses. The facts in this case, as applied to each plaintiff, are substantially
different. Both Roeder and Grill purchased equipment they used to perform DIRECTV
installation services. They deducted these purchases as business expenses on their tax
returns. Roeder spent approximately $2,000 on equipment while Grill was not asked
how much he spent. See Doc. No. 62-2 at 51-55, 83. Grill deducted $5,280 in vehicle
expenses and $488 in supplies on his tax return the year he performed DIRECTV work.
Doc. No. 79-2 at ¶ 67.
Essentially, these are the only facts DIRECTV has offered in support of this factor,
aside from the purchase of a vehicle. In Krupicki, 2014 U.S. Dist. LEXIS 46038, at
*15-18, the court relied on the worker’s purchase of a 2003 Chevrolet Express Van and
lease of a Bush Truck to conclude that his investments weighed in favor of independent
contractor status. While it is not clear whether the worker could have used those vehicles
for other purposes, they were purchased so he could make deliveries. Id.
Here, I do not find the plaintiffs’ purchase and/or use of personal vehicles to weigh
in favor of finding plaintiffs were independent contractors. Both vehicles had been
purchased prior to taking DIRECTV work orders and the record does not establish
plaintiffs purchased them solely for the purpose of performing DIRECTV work. See
Herman v. Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 299, 304 (5th Cir. 1998)
(“investment of a vehicle is no small matter, [but] that investment is somewhat diluted
when one considers that the vehicle is also used by most drivers for personal purposes.”).
The same analysis applies with regard to plaintiffs’ cell phones and computers. See Miri
36

Microsystems LLC, 781 F.3d at 811.
With regard to the investment factor, I find that the undisputed facts do not weigh
in favor of either independent contractor or employee status. While each plaintiff did
spend money on tools and equipment, these “investments” pale in comparison to
investments in other cases, where courts found this factor weighed in favor of independent
contractor status. See Krupicki, 2014 U.S. Dist. LEXIS 46038, at *15-16, Scruggs, 2011
WL 6026152, at *6; Chao, 16 F. App’x at *3. Therefore, I find a genuine issue of
material fact as to the “investments” factor.
c.

Degree to Which The Worker’s Opportunity for Profit and
Loss is Determined by The Alleged Employer

The third factor considers “the alleged employee’s opportunity for profit or loss
depending on his managerial skill.” Scantland, 721 F.3d at 1316. It also considers
“whether the worker or the alleged employer controlled the major determinants of the
amount of profit which the [worker] could make.” Eberline v. Media Net, L.L.C., 636
F. App’x 225, 228 (5th Cir. 2016) (citing Hopkins, 545 F.3d at 343). DIRECTV cites
the following undisputed facts as to Roeder, which it argues weigh in favor of independent
contractor status:
 Roeder admitted in his deposition he would “try and pick up additional income.”
Doc. No. 59-1 at ¶ 49.
 One of the ways he earned additional income was by performing installation work
for DIRECTV’s competitor, Dish Network. Id. at ¶ 45.
 Roeder offered custom labor work to customers, such as pole mounts and wall
fishes, which were not part of the DIRECTV work order. He would negotiate the
price for this work directly with the customer27 and the customer would pay him
with cash or check. Id. at ¶ 50.

27

Roeder notes in his statement of additional facts that DIRECTV set the upper bound of the
rates that he could charge a customer for custom labor. See Doc. No. 97-2 at ¶ 10.

37

 Roeder performed carpentry work and pre-wired in houses. Id. at ¶ 46.
 In 2012, less than 30 percent of the revenue Roeder reported to the IRS was from
his work for White Communications. Id. at ¶ 48.
 Roeder was able to control his profit by choosing the most affordable liability
insurance and choosing the order in which he performed his work so as to reduce
mileage between jobs.28 Id. at ¶ 51.
As for Grill, DIRECTV cites the following undisputed facts, which it argues weigh
in favor of independent contractor status:
 Grill attempted to minimize his expenses by arranging work orders to minimize
mileage and fuel costs. Doc. No. 62-1 at ¶ 68.
 Grill admitted to shopping around to find the best price on tools and equipment.29
 Grill decided whether he wanted to obtain additional work orders to complete
during the day.30
28

Roeder denies his testimony as to these choices supports an argument that he was attempting
to maximize profits. See Doc. No. 80-2 at 20.
29

While cited in its brief, DIRECTV failed to include this fact in its statement of undisputed
facts. Nonetheless, the record indicates it would likely be considered undisputed as Grill
admitted he had the option of shopping around to try and find the best price for specialized
technical equipment. See Doc. No. 62-2 at 54.

30

DIRECTV failed to include this fact in its statement of undisputed facts. It is unclear whether
Grill would dispute this fact or not. Grill testified as follows when asked about additional work
orders:
Q.
A.
Q.
A.

Were there ever days where you were able to pick up additional work orders
because you finished your work orders early?
Not very often.
Did that happen sometimes?
I -- I believe I do recall one time where I happened to be done and I called Rich
to see if anybody maybe needed help or –

38

 Grill stored his equipment in his garage to limit his commute to the warehouse.31
 By ensuring his work met DIRECTV’s technical specifications, so as to avoid
chargebacks, Grill was increasing his profits.32
With regard to Roeder, I find that this factor does not weigh in favor of either
independent contractor or employee status, as conflicting inferences can be drawn from
the undisputed facts.
contractor work.

Some of those facts are certainly suggestive of independent

Roeder performed satellite installation work for a DIRECTV

competitor and performed custom work for DIRECTV customers, for which he was paid
directly. See Chao, 16 F. App’x at 107 (finding that this factor weighed in favor of
independent contractor status where installer’s net profit or loss depended on skill in
meeting specifications to avoid chargebacks, business acumen in selecting tools and
equipment, and decision whether to hire his own employees or work alone). However,
the record also demonstrates that DIRECTV exercised control over the amount Roeder
could charge customers for his custom work by capping the price.
With regard to the other facts (Roeder’s carpentry work and the reported revenue
to the IRS), I do not find these facts particularly persuasive of independent contractor
Q.
A.

Did you get an additional work order to do?
I don’t remember the outcome. I don’t remember.

Doc. No. 62-2 at 76-77.
31

DIRECTV failed to include this fact in its statement of undisputed facts. However, it appears
to be undisputed as Grill testified he kept DIRECTV equipment in his garage in an effort to
minimize the number of times a week he had to go to the warehouse. See Doc. No. 62-2 at 65.
32

DIRECTV failed to include this fact in its statement of undisputed facts. Moreover, the cited
portion of the record contains no reference to chargebacks or quality control inspections. It is
unclear whether Grill would dispute this purported fact. Grill’s only testimony involving
chargebacks was that he received chargebacks on four occasions for approximately $50 on
average, but he could not recall what they were for or how they were justified. See Doc. No.
62-2 at 51; Doc. No. 88-1 at ¶ 59.

39

status. Nothing in the record indicates these were part of Roeder’s DIRECTV work.
The relevant inquiry is how much of Roeder’s opportunity for profit and loss in
performing his DIRECTV work was controlled by DIRECTV or influenced by Roeder’s
managerial skill. See Scantland, 721 F.3d at 1316-17 (noting plaintiffs’ ability to earn
additional income through their own initiative was limited because they could not charge
more for the work they were doing or offer non-[cable] services to customers).
Also, it appears the plaintiffs never incurred losses or risked incurring losses in
performing DIRECTV work.

The record indicates plaintiffs were paid piece-rate,

meaning they were paid a specified amount for a job regardless of how long it took to
complete. While this would suggest plaintiffs may have been able to take on additional
work orders (and increase profits) by working efficiently, the record indicates this
opportunity rarely presented itself. See Doc. No. 59-2 at 100 (in which Roeder is asked
if he could earn more by completing more work orders, but his answer has been left out
of the record); Doc. No. 62-2 at 76-77 (in which Grill testifies that he can recall only
one occasion in which he completed a job early and asked his supervisor if anyone needed
help, but could not recall whether he received an additional work order). To the extent
the opportunity did arise, this was based on technical skill and efficiency, not on
managerial skill. See Scantland, 721 F.3d at 1316. For these reasons, I find that the
undisputed facts do not weigh in favor of either independent contractor or employee status
as to Roeder when applying the appropriate inferences in favor of each resisting party.
With regard to Grill, I find the evidence is insufficient to demonstrate he had an
opportunity to control profit or loss while performing his DIRECTV work. Many of the
facts DIRECTV cites are incidental (minimizing mileage and fuel costs and finding the
best price for tools and equipment) and do not demonstrate an ability to control profits or
loss as to the actual work being performed. I also do not find DIRECTV’s argument
persuasive that Grill was “maximizing profits” by avoiding chargebacks. While the
record for Roeder’s claim suggests Grill may have had the same opportunities to offer
40

custom work, Grill denied that he ever performed custom work. See Doc. No. 62-2 at
85-86 (“Q. Was there ever a time when you were completing DIRECTV work orders
where a customer would pay you extra to do things like pole mounts or wall fish or
custom wiring? A. No. Q. Did customers ever tip you? A. No. Q. Did customers
ever give you any money at all? A. No.”). Plaintiffs also note Grill’s testimony that
he would not have tried to take on other jobs or sources of income because he was
“exhausted” and “didn’t have any time.” Doc. No. 88-1 at 27.33 Finally, the same
reasoning with regard to pay and the ability (or inability) to pick up additional work
orders as described above applies to Grill as well. He was not able to exercise managerial
skill to increase his profits in this position. For these reasons, I find this factor weighs
in favor of employee status as to Grill when applying the appropriate inferences in favor
of each resisting party.
d.

Skill and Initiative in Performing the Job

In considering this factor, I must determine whether plaintiffs’ profits increased
because of the “initiative, judgment or foresight of the typical independent contractor,”
or whether their work “was more like piecework.” Miri Microsystems LLC, 781 F.3d at
809 (quoting Rutherford Food Corp., 331 U.S. at 730). With regard to this factor,
DIRECTV argues the following facts weigh in favor of independent contractor status:
 Roeder completed satellite technician tests and obtained SBCA Installer
Certification. Doc. No. 59-1 at ¶ 55.
 Roeder admitted he used his skills as a carpenter when installing and mounting
satellite dishes.34 Id. at ¶ 59.
33

The cited testimony from Grill is not a part of the record and therefore, cannot be considered.

34

Roeder testified that his carpentry skills did not add much to his job as a DIRECTV installer.

41

 Each installation presented a different scenario such that Roeder had to assess how
to complete the installation without any step-by-step instructions.35 Id. at ¶ 54.
 Roeder acknowledged that installing satellite television services is a complicated
process that goes beyond simply aligning satellite receivers with the satellite itself.
Id. at ¶ 53.
With regard to Grill, DIRECTV argues the following facts weigh in favor of
independent contractor status:
 Grill admitted during his deposition that properly installing DIRECTV systems is
complicated and cannot be done without training. Doc. No. 62-1 at ¶ 49.
 Grill received training from U.S. Citadel, which included classroom instruction
and approximately two weeks of “shadowing” another U.S. Citadel technician.36
Id. at ¶ 30.
 Grill obtained SBCA certification, which required passing a written test. Id. at ¶
50.
 Grill did not receive detailed instructions on the installation of DIRECTV satellite
See Doc. No. 80-3 at 23 (“Q. Is it fair to say that your carpentry past and your skills made you
more efficient at doing work orders than you otherwise would have been? A. No.”).
35

Roeder denies this statement. He testified there were not step-by-step instructions “of how
you do each individual job.” See Doc. No. 80-3 at 55. Moreover, he points out that DIRECTV
provides very detailed instructions on how it wants its technicians to perform their work,
including what a technician should do while approaching the worksite, what words to use when
talking to the customer, what size drill bit to use when mounting the dish, how much to charge
for custom labor work, and what instructions to leave behind with customers. See Doc. No. 681 at ¶ 29.
36

Grill points out that DIRECTV is the company that drafts, publishes, and distributes the
training used to educate technicians. See Doc. No. 79-2 at ¶ 51. Grill cites Jackson’s statement
that the DIRECTV training materials are provided to subcontracting companies through
satinstalltraining.com, a website run by DIRECTV. See Doc. No. 79-3 at 64-65.

42

services, but exercised his own judgment in deciding the best way to complete
each installation job.37 Id. at ¶ 37.
Plaintiffs maintain that their work did not require a special skill that required them
to exercise their own judgment. See In re McAtee, 126 B.R. 568, 572 (N.D. Iowa 1991)
(“[A] special skill pertains to services which are outside the ordinary course of the
[alleged employer’s] business or beyond the training capabilities of the employer.”).
However, they acknowledge that they did acquire some skills because they were required
to complete training and their skills were verified through a test administered by
DIRECTV.

Workers in skilled trades are traditionally considered independent

contractors. See Scruggs, 2011 WL 6026152, at *7. However, the relevant inquiry is
whether Roeder and Grill could use their skills to increase their business. In Roslov v.
DirecTV, Inc., the court found this factor weighed in favor of independent contractor
status when the technician had to follow standards in performing installations, but could
negotiate directly with customers regarding compensation for custom work he could
perform. Roslov v. DirecTV, Inc., No. 4:14-CV-00616 BSM, 2016 WL 6892110, at *9
(E.D. Ark. Nov. 4, 2016). Here, the undisputed facts establish that Roeder occasionally
performed custom work for DIRECTV customers, for which he was paid directly. Even
37

Grill denies this statement as not accurately portraying his testimony. See Doc. No. 79-2 at ¶
37. The cited testimony is:
Q.
A.
Q.
A.
Q.
A.

Is it fair to say that you didn’t have step-by-step instructions as to how to
complete each work order?
Yeah. Yep.
You had to figure out some things like where the best place was to mount
the satellite dish?
There were variables, yes.
And what the best way was to run the wires, that type of thing?
Yes.

Doc. No. 62-2 at 102. Grill argues there is ample evidence in the record regarding the detailed
instructions DIRECTV provides on how it wanted technicians to perform their work. See supra
n. 35 (citing Doc. No. 68-1 at ¶ 29).

43

though Roeder contends he did not have any special skills, he did have training for those
skills and took initiative in using them to increase his profits. He also admitted to using
his judgment in deciding whether to charge a customer for custom labor at all. See Doc.
No. 97-2 at ¶ 11. I find this to be characteristic of an independent contractor rather than
an employee, even when viewing the facts in the light most favorable to Roeder.
There is no evidence in the record that Grill took similar initiative or used his
skills in this way to increase profits. Indeed, Grill described his work as strictly piece
work. See Doc. No. 62-2 at 64 (“Q. My question was the amount got paid for a specific
job like you – in your example you said the guy told you this is a $100 job. That job was
a $100 job whether it took you guys 30 minutes to do it or whether it took you four hours
to do it; is that right? A. Yeah. Yes.”) In Perez, the court found that the installation
work was “piece work” that did not require initiative, judgment or foresight. See Perez,
2015 WL 3451268 at *15. It noted that while installer efficiency was a metric measured
by DIRECTV, the initiative, judgment or foresight of a given installer “found scant
necessity within the four corners of the work order.” Id. Here, Jackson stated that, to
his knowledge, the subcontracting companies paid the technicians piece-rate, but admitted
that he had never seen their checks. Doc. No. 79-3 at 66. He also noted that DIRECTV’s
W-2 production technicians were paid piece-rate.
In the context of truck driving, the Eighth Circuit has found it noteworthy that
while a certain degree of skill is required to drive a tractor-trailer, “that skill was not
unique and not more prevalent among independent contractors than employees.” See
Northland Cas. Co. v. Meeks, 540 F.3d 869, 873 (8th Cir. 2008). The same logic applies
here. While Grill was performing skilled work, he was not using those skills any
differently than a DIRECTV employee. He also did not exercise any judgment or
initiative with regard to those skills to increase his profits. For these reasons, this factor
weighs in favor of employment status as to Grill.
44

e.

Permanency

The fifth factor considers whether the worker and alleged employer regard the
work as permanent. “If a worker has multiple jobs for different companies, then that
weighs in favor of finding that the worker is an independent contractor.”

Miri

Microsystems LLC, 781 F.3d at 807. “The more permanent the relationship, the more
likely the worker is to be an employee.”

Schultz, 466 F.3d at 309.

“Generally,

independent contractors have variable or impermanent working relationships with the
principal company because they ‘often have fixed employment periods and transfer from
place to place as particular work is offered to them, whereas “employees” usually work
for only one employer and such relationship is continuous and indefinite in duration.’”
Miri Microsystems LLC, 781 F.3d at 807.
With regard to this factor, DIRECTV argues the following facts weigh in favor of
finding Roeder was an independent contractor:
 Roeder did not have a contract with DIRECTV.
 Roeder rejected the opportunity to become a W-2 technician for DIRECTV.38
Doc. No. 59-1 at ¶ 22.
 The only entities Roeder had a contractual relationship with were Wireless
Technologies and White Communications. Id. at ¶¶ 18, 25.
 Roeder did not exclusively perform DIRECTV work orders, and to the contrary,
performed work for a DIRECTV competitor. Id. at ¶ 45.
 Roeder freely took time off work to trap beavers. Id. at ¶ 52.
 Roeder’s relationship with Wireless Technologies was short – lasting
approximately 9 months, with a 3-month break in his engagement. Id. at ¶¶ 7,
20.
38

Roeder denies that he “rejected” the offer. See Doc. No. 89-1 at ¶ 22. He testified that he
was presented the option to work as a DIRECTV W-2 employee or through a subcontractor and
did not recall the reason he ended up with White Communications. See Doc. No. 80-3 at 3435.

45

 Roeder’s first engagement with White Communications lasted approximately 6
months. Id. at ¶ 9.
 Roeder’s second engagement with White Communications lasted approximately
8 months, and included a four-week break to trap beavers in Woodbury County
during hunting season. Id. at ¶¶ 9, 52.
 Roeder voluntarily ended his engagements with Wireless Technologies and
White Communications on his own terms and at the times of his choosing,
specifically after he decided to no longer work in South Dakota and again after
he decided to start his own satellite installation company.39 Id. at ¶ 26.
With regard to Grill, DIRECTV argues the following facts demonstrate he was an
independent contractor:
 Grill had no contract or employment agreement with DIRECTV.
 Grill performed DIRECTV work orders for only six months. Doc. No. 62-1 at ¶
20.
 Grill ended his engagement with U.S. Citadel in the fall of 2011 after he decided
to stop installing DIRECTV systems to avoid working outside in the winter
weather.40 Id. at ¶ 21.
39

Roeder denies that his company, CJ Satellite Services, is a comparable installation company.
His company is a “retailer” in that it sells satellite subscription services for both DIRECTV and
Dish Network. See Doc. No. 89-1 at ¶ 26.

40

The cited testimony does not support this fact. Grill testified as follows:
Q.
A.

And why did you stop installing DIRECTV equipment?
After consideration and deciding that some – some of the main factors
were it wasn’t paying enough to make it worthwhile, with all the extra
things that weren’t included on this but were expected of me. My own
vehicle and gas and buying my own cable and the hours and storing all the
receivers and dishes in my garage and dealing with the cleanup and the
paperwork. And it didn’t supply enough income for what the job required.

46

I find the undisputed facts related to this factor weigh in favor of independent
contractor status as to Roeder. He performed work for other companies, including a
DIRECTV competitor. He also took long breaks, which is not typical of an employment
arrangement. These factors suggest that Roeder did not have a permanent relationship
with DIRECTV, but one where he could choose to receive work from DIRECTV as he
saw fit. The only evidence Roeder offers regarding permanency is the fact that he
performed DIRECTV work for nearly two years (without counting breaks). Even when
viewing the facts in the light most favorable to Roeder, I find that this factor weighs in
favor of independent contractor status.
As to Grill, his employment was short in duration.

However, “even short,

exclusive relationships between the worker and the company may be indicative of an
employer-employee relationship.” Miri Microsystems LLC, 781 F.3d at 807. There is
nothing to suggest that Grill did not treat his employment as anything other than
permanent while he was doing DIRECTV work. While there is some disagreement as to
whether he quit due to pay or the weather, I do not find this fact material given that Grill
did not resume work at a later date (as Roeder did). Grill’s conduct is no different than
that of an employee.

Even when viewing the facts in the light most favorable to

DIRECTV, I find this factor weighs in favor of employee status.

Q.
A.

So you were unhappy with the pay?
Overall, unhappy with the pay and then I knew – you know, when you’re
pushing the end of August, middle of August, you know in Iowa that
winter is coming, and it – I couldn’t use my garage for all of DIRECTV’s
equipment that they required me to have. I needed my space in the garage.
I knew that I – the pay wasn’t going to cover putting a ladder in the – in a
3-foot snowdrift.

Doc. No. 62-2 at 35-36.

47

f.

Whether The Work is an Integral Part of The Business

The last factor considers whether the work is an integral part of the alleged
employer’s business. “The more integral the worker’s services are to the business, then
the more likely it is that the parties have an employer-employee relationship.” Miri
Microsystems LLC, 781 F.3d at 815. DIRECTV does not address this factor. It appears
to be undisputed that plaintiffs played an integral role in DIRECTV’s business by
installing DIRECTV systems for customers.

Indeed, DIRECTV admits that its

technicians (whether W-2 or 1099) are often the only DIRECTV representatives to have
direct and personal contact with its customers. See Doc. No. 87-1 at ¶ 3. This factor
weighs in favor of an employment relationship, even when viewing the facts in the light
most favorable to DIRECTV.
g.

Other Factors

Plaintiffs contend I should consider the following additional factors in determining
whether they are entitled to summary judgment on the issue of whether they were
employees:


DIRECTV employed W-2 workers to perform the same work as plaintiffs



DIRECTV set and enforced prerequisites for hiring and had the authority
to terminate plaintiff’s employment



DIRECTV promulgated work rules, scheduled assignments, set conditions
of employment and method of compensation



DIRECTV was heavily involved in the day-to-day supervision of plaintiffs,
including disciplinary decisions



Personnel records were primarily maintained by DIRECTV

While the Silk factors considered above are not exhaustive, see Thornton, 157 F. Supp.
3d at 848, all but one of the additional factors plaintiffs cite are part of the analysis of
48

whether an entity is a joint employer. See Bonnette v. California Health and Welfare
Agency, 704 F.2d 1465, 1470 (9th Cir. 1983). This is separate from the analysis of
whether the plaintiffs were employees or independent contractors. See Zheng v. Liberty
Apparel Co. Inc., 355 F.3d 61, 67-68 (2d Cir. 2003). For the reasons described infra,
in Section IV(C)(2), I find that an analysis of the joint employment factors is not necessary
as to Grill. I will, however, consider the first additional factor listed by plaintiffs
(similarities between plaintiffs and W-2 technicians) in determining whether the
undisputed facts demonstrate that the plaintiffs were employees.

Plaintiffs cite the

following facts concerning the similarity between DIRECTV’s W-2 employees and the
plaintiffs:


The contracts between the three subcontracting companies at issue in this
case and DIRECTV are virtually identical. Doc. No. 72 at ¶ 82.



Even though multiple subcontracting companies might be assigned to a
particular DIRECTV site, they were each held to the same standards as
DIRECTV’s W-2 technicians.41 Id. at ¶ 83.



By assigning the work, DIRECTV controls schedules of its W-2 technicians
and the 1099 subcontractor technicians in the same way.42 Id. at ¶ 84.

41

DIRECTV clarifies that Jones testified he held all of the technicians who worked out of his
site “accountable,” and, for technicians engaged by subcontracting companies, he testified that
he would talk to their “boss.” Doc. No. 87-1 at ¶ 83.
42

DIRECTV disputes this fact. It contends Jackson only stated that DIRECTV’s SIEBEL system
preliminarily assigned work orders to individual technicians and that the citations to his statement
do not pertain to assignments or schedules. See Doc. No. 87-1 at ¶ 84. His testimony was as
follows:
Q.
A.

Would you agree with me that the SIEBEL system or later FS Scheduler would
assign and track the jobs that were assigned to particular technicians?
Yes.

49



Scheduling exceptions for technicians were recorded and tracked in
SIEBEL the same way regardless of whether it was for a DIRECTV W-2
employee or a 1099 subcontractor.43 Id. at ¶ 85.



Technicians classified as subcontractors were held to the same performance
metrics as were DIRECTV W-2 technicians.44 Id. at ¶ 86.



There were no differences in the way DIRECTV reviewed technicians’
work whether the work was performed by a W-2 employee or a 1099
subcontractor.45 Id. at ¶ 87.

Doc. No. 72-1 at 122. Jackson then described how 1099 technicians and W-2 technicians would
request time off work. W-2 technicians were required to give two weeks’ notice for vacation.
If they needed sick leave, they were required to call in. Jackson stated that with respect to sick
leave, he asked the same thing of subcontracting companies. However, when a subcontractor
had a sick technician, he wanted another subcontractor technician to cover. If either a 1099
technician or W-2 technician simply needed the day off, it would be entered in as an exception
in the system. Id. DIRECTV maintains that Jackson’s statement should not apply to the
subcontractors that engaged Roeder because Jackson was the site manager of the Cedar Rapids
site, with which only Grill was affiliated.
43

DIRECTV disputes this fact based on Roeder’s testimony that the subcontractor he worked for
allowed technicians without DIRECTV-issued technician numbers to perform DIRECTV work
orders. This does not constitute a genuine dispute of fact.

44

DIRECTV disputes this fact. The cited testimony states the following:
Q.
A.
Q.
A.

To your knowledge, was there any difference in how a site’s metrics were
measured depending on whether the work had been done by a W-2 employee or
a technician engaged through a subcontracting company?
The performance metrics, the best I can remember, were the same.
Where there ever any differences in those performance metrics?
I don’t recall.

Doc. No. 72-1 at 96. DIRECTV also argues that this testimony cannot apply to Grill because
DiPalma never had responsibility over the Cedar Rapids site.
45

DIRECTV disputes this fact. Jackson stated: “With W-2 jobs there’s a lot more of I’m going

50



When DIRECTV followed up with customers on the work of 1099
subcontractor technicians through its post-call survey, the questions that
were asked and the metrics by which success was measured were the same
as for W-2 employees. Id. at ¶ 88.



DIRECTV site managers had access to the same reporting information
about their W-2 employee technician workforce as they did for their 1099
subcontractor workforce.46 Id. at ¶ 89.



DIRECTV’s SIEBEL system did not differentiate between in-house W-2
employee technicians and subcontractor technicians when assigning work
orders. Id. at ¶ 69.

Plaintiffs argue the similarities between 1099 and W-2 technicians suggest that they
should be characterized as employees. See Tobin v. Anthony-Williams Mfg. Co., 196
F.2d 547, 550 (8th Cir. 1952) (holding that plaintiffs were employees based, in part, that
“[a]dmitted employees perform[ed] identical work.”). In Tobin, the alleged employer
was a corporation engaged in the production and sale of lumber. It paid truck drivers or
haulers at a certain rate per thousand board-feet hauled, depending on the length of the
haul. Tobin, 196 F.2d at 548. The haulers were required to purchase their trucks from
the employer, which they could only use for business purposes. They also had to hire
their own wood workers to cut the timber. Defendant admittedly employed individuals
who loaded trucks as well as at least two employees who did the same work as the haulers.
Id. at 549. The work was limited by the amount of work done by the employee loaders
and defendant’s storage capacity for logs. Id.
to help you. There’s assistance provided, teaching, and things like that. The 1099’s we weren’t
to teach, we weren’t to really . . . I mean, we might tell them whether they pass or fail and
explain why. But it wasn’t now we are going to offer you a consequence or anything. That was
up to their supervisor.” Doc. No. 72-1 at 105. DIRECTV also notes, again, that Jackson’s
statement cannot apply to Roeder.
46

DIRECTV disputes this fact. It points out Jackson only stated that he received “technician
score cards” for the W-2 and 1099 technicians based out of his site. See Doc. No. 72-1 at 119.

51

DIRECTV attempts to distinguish Tobin by arguing there is no evidence in the
record that plaintiffs’ work was limited in any way by any DIRECTV employee, but only
by “their own free will in deciding how hard, and how much, they worked, and by the
cyclical demand for DIRECTV services.” Doc. No. 87 at 12, n.7. I disagree that the
record establishes plaintiffs’ work was limited only by their “own free will.” See Doc.
No. 62-2 at 54 (in which Grill testified he was given 4 to 6 work orders per day); Doc.
No. 59-2 at 83-84 (in which Roeder testified that at Wireless Technologies the supervisor
handed out the route and at White Communications the supervisor would divide out the
work orders among technicians); Doc. No. 59-2 at 100 (in which Roeder is asked if he
could earn more by completing more work orders, but his answer has been left out of the
record); Doc. No. 62-2 at 76-77 (in which Grill testifies that he can recall only one
occasion where he got done early and asked his supervisor if anyone needed help, but
could not recall whether he received an additional work order).
While DIRECTV disputes many of the above-listed facts, I find that it has not
demonstrated genuine issues of material fact as to this factor. Indeed, in many instances
DIRECTV chose to deny the fact without pointing to evidence supporting the denial. I
find the similarities between DIRECTV’s W-2 employees and its 1099 technicians in the
work they perform, the way their schedules are maintained, the way work orders are
assigned and the standards by which they are measured weighs in favor of finding that
plaintiffs were employees, rather than independent contractors, even when viewing the
facts in the light most favorable to DIRECTV.
h.

Conclusion Regarding Independent Contractor or Employee
Status

In sum, I find that the following factors weigh in favor of concluding Roeder was
an independent contractor: the skill and initiative in performing the work and the
permanence of the relationship. The factors that weigh in favor of concluding he was an
52

employee are: being an integral part of the business and the similarities between
DIRECTV’s W-2 workers and plaintiffs. The opportunity for profit or loss factor could
go either way.
As to Grill, I find that none of the factors weigh in favor of concluding he was an
independent contractor. As to both plaintiffs, the degree of control factor has disputed
facts and the worker investment factor could lead a jury to conclude that plaintiffs were
either employees or independent contractors.
Thus, while Grill seems to have the better argument for “employee” status, neither
plaintiff has established, as a matter of law, that he was an employee of DIRECTV rather
than an independent contractor. Nor has DIRECTV established, as a matter of law, that
the plaintiffs were correctly classified as independent contractors. With regard to both
plaintiffs, the jury must consider and weigh the facts relevant to each factor and reach its
own conclusion, as the finder of fact, as to whether they were employees or independent
contractors.
2.

Was Grill Jointly Employed By DIRECTV?

DIRECTV argues that even if Grill is able to show he was an employee, he cannot
demonstrate that DIRECTV was his employer. DIRECTV instead insists that I must first
determine whether Grill was an employee of U.S. Citadel.

If I conclude he was,

DIRECTV argues that I must then consider whether DIRECTV is a joint employer by
applying the four Bonnette factors.
I do not agree that this is the proper legal framework. First, Grill has not named
U.S. Citadel as a defendant in this lawsuit. Grill only alleges that he was an employee
of DIRECTV. The cases DIRECTV relies on involve both the cable provider and the
cable installation or contracting companies as defendants. See Herman, 164 F. Supp. 2d
at 677 (concluding installation company could not be considered installers’ employer so
neither could cable provider); Thornton v. Charter Commc’ns, LLC, No.
53

4:12CV479SNLJ, 2014 WL 4794320, at *10, n.8 (E.D. Mo. Sept. 25, 2014) (assuming
the technicians were employees of co-defendant Mainline (a contracting company) and
noting that in similar cases where plaintiffs sue both the cable provider and contracting
company, district courts have concluded the cable provider is not a joint employer).
Second, plaintiffs have not admitted that their contracting companies were their
“employers.” DIRECTV provided supplement authority, Roslov, 2016 WL 6892110, at
*1, in which the plaintiffs sued the same DIRECTV entities. The court in Roslov assumed
that the service providers were plaintiffs’ employers and analyzed only whether
DIRECTV was a joint employer, not whether plaintiffs were employees or independent
contractors. The court noted:
It is unclear whether [plaintiff] 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 . . . , but now references independent contractors.
Roslov, 2016 WL 6892110, at *6. The court went on to analyze whether DIRECTV was
a joint employer based on the assumption that the Service Providers were plaintiff’s
employer. That assumption is not appropriate here, as DIRECTV and Grill agree that
“[b]etween March 2011 and August 2011, Grill was engaged as an independent contractor
by US Citadel.” Doc. No. 88-1 at ¶ 20. For these reasons, I will not consider whether
DIRECTV was a “joint employer” of Grill.
3.

Are Plaintiffs Exempt From Overtime Under The 7(i) Exemption?

Section 7(i) of the FLSA provides the following exemption from the overtime
requirements:
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 [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
54

representative period (not less than one month) represents commissions on
goods or services.
29 U.S.C. § 207(i). Therefore, there are three elements DIRECTV must prove for this
exemption to apply: (1) the employer is a “retail or service establishment;” (2) more than
half the employee’s compensation for the representative period is from commissions; and
(3) the employee’s regular rate of pay is at least one and one-half times the minimum
wage. See Reich v. Delcorp, Inc., 3 F.3d 1181, 1182 (8th Cir. 1993). Plaintiffs and
DIRECTV both seek summary judgment on this exemption.
The application of an exemption is a mixed question of law and fact. See Grage
v. Northern States Power Co.-Minnesota, 813 F.3d 1051, 1054 (8th Cir. 2015). “The
question of how the [workers] spent their working time . . . is a question of fact. The
question whether their particular activities excluded them from the overtime benefits of
the FLSA is a question of law.” Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554,
558 (2d Cir. 2012) (quoting Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714
(1986)).

“Exemptions under the FLSA are to be narrowly construed against the

employers seeking to assert them.” Lederman v. Frontier Fire Protection, Inc., 685 F.3d
1151, 1157-58 (10th Cir. 2012).
a.

Is DIRECTV a Retail or Service Establishment?

Plaintiffs argue they are entitled to summary judgment based solely on
DIRECTV’s inability to prove plaintiffs worked for a “retail establishment.” While they
do not concede the other two factors that make up the exemption, they contend summary
judgment may be granted based on the first factor. DIRECTV argues it is entitled to
summary judgment on this factor and urge me to follow the reasoning in Matrai v.
DirecTV, LLC, 168 F. Supp. 3d 1347, 1359 (D. Kan. 2016). In that case, the court
began its analysis of whether DIRECTV was a “retail or service establishment” by citing
Department of Labor (DOL) regulations that define a retail or service establishment as
55

“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.”

See Matrai, 168 F. Supp. 3d at 1359 (quoting 29 C.F.R. §

779.411). The court considered other relevant factors, as set forth in DOL regulations
and relevant case law, and found that DIRECTV qualified as a retail or service
establishment based on the following facts:
 It sells an everyday service delivered through sophisticated equipment
installed in the retail consumers’ homes.
 DIRECTV sells its services to the ultimate customers, and the equipment is
installed and serviced in the customers’ homes, which they do not resell.
 Plaintiffs were completing work orders for the installation of satellite
television equipment purchased in a retail transaction.
 Consumers had purchased installation services as part of a retail package of
equipment and services.
 Plaintiffs were providing installation and repair services in connection with
a retail product for the comfort, convenience and enjoyment of the retail
purchasers.
Id. at 1359-62.
Both parties acknowledge that I am bound by the Eighth Circuit’s definition of
“retail or service establishment” in Reich v. Delcorp, Inc., which is based on 29 U.S.C. §
213(a)(2). This definition is identical to the definition provided in 29 C.F.R. § 779.411.
See Reich, 3 F.3d at 1183 (relying on § 213(a)(2), which defines “retail or service
establishment” 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.”). Based on this definition, DIRECTV argues the
facts in Matrai are identical to the facts in this case. It is undisputed that DIRECTV
provides satellite television service to the general public and that well over 75 percent of
56

DIRECTV’s revenue comes from the sale of goods and services to end users. See Doc.
No. 88-1 at ¶ 1. Plaintiffs, however, dispute that the sale of DIRECTV services and the
technicians’ work constitute “retail services” in the cable and satellite television industry.
Id. at ¶ 4.
First, plaintiffs contend DIRECTV relies on inadmissible evidence to establish this
point. DIRECTV cites the declaration of Steven Hill, the Deputy Executive Director of
the Satellite Broadcast and Communications Association, a national trade organization,
which states:
Sales and services that are generally recognized as “retail” in our industry
include the retail sales of satellite service and equipment by the satellite
company (here, DIRECTV) to consumers through retail outlets (i.e., online, telephonic call center facilities, or brick and mortar locations), and the
services performed by technicians to fulfill the retail transaction between
the Satellite Service and the Consumer by delivering, installing, or
servicing the equipment purchased or leased by the customer, and activating
or maintaining the customer’s connection to the satellite company’s satellite
television service.
Doc. No. 62-2 at 238. Plaintiffs argue I should disregard Hill’s statement because
DIRECTV did not disclose Hill as a witness in its Rule 26 disclosures. DIRECTV
disagrees and notes that its disclosures, which were served May 19, 2016, identified the
following documents: “The depositions transcripts from depositions taken, and the
documents produced, and the pleadings and declaration filed in the Arnold v. DIRECTV,
Lang v. DIRECTV, Arndt v. DIRECTV, Field v. DIRECTV, and all other cases brought
by Plaintiffs’ counsel against DIRECTV.” Doc. No. 98-3 at 13. The caption for the
Hill declaration indicates it was part of the Arnold lawsuit. Doc. No. 62-2 at 237. I
reject plaintiffs’ argument that an alleged failure to disclose this declaration renders it
inadmissible for summary judgment purposes.
Plaintiffs also dispute that their work constitutes “retail services” in the cable and
satellite television industry based on declarations from other executives in the field. They
cite deposition testimony from Dan Yannantuono, the Chief Executive Officer of
57

DIRECTV Home Service Provider DirectSat, who states he has never heard of his
business as being a retail service and he has never referred to his business as a retail
business. See Doc. No. 88-1 at ¶ 4. They also cite deposition testimony from J. Mitchell
Clarke, the Executive Vice President of DIRECTV’s Home Service Provider Multiband,
who testified he did not consider Multiband to be a retail business. Id. DIRECTV argues
these statements do not create a genuine issue of material fact because the executives
were only asked about their businesses, DirectSat and Multiband, and not DIRECTV.
Finally, plaintiffs argue that the “establishments” for which plaintiffs worked did
not have a retail concept. They rely on A.H. Phillips, Inc. v. Walling, 324 U.S. 490
(1945), for the proposition that even if a company’s enterprise is retail in nature, only
those employees who work in a retail “establishment” qualify for the exemption. In A.H.
Phillips, the employer corporation operated a chain of 49 retail grocery stores. A.H.
Phillips, Inc., 324 U.S. at 491. It also maintained a separate warehouse and office
building where the plaintiff employees worked. The court noted that all of the sales were
made exclusively at the retail stores and no deliveries to customers were made from the
warehouse. Id. at 492. The Court reasoned that Congress did not intend to exempt the
warehouse and central office of an interstate chain store system as a “retail establishment”
under Section 13(a)(2).47 It concluded that employees working at the warehouse and
central office were performing wholesale duties and did not fall within the Section
13(a)(2) exemption. Id. at 498.
47

Section 13(a)(2) was intended to exempt “those regularly engaged in local retailing activities
and those employed by small local retail establishments, epitomized by the corner grocery, the
drug store and the department store.” A.H. Phillips, Inc., 324 U.S. at 497. Congress “felt that
retail concerns of this nature d[id] not sufficiently influence the stream of interstate commerce
to warrant imposing the wage and hour requirements on them.” Id. While this section was
repealed in 1989, it did not change § 207(i)’s use of “retail or service establishment” and reliance
on the same definition. See Reich, 3 F.3d at 1183.

58

Plaintiffs argue they are similar to the warehouse workers in A.H. Phillips because
they worked only through DIRECTV’s warehouse facilities, which were not open to the
general public and were considered “cost centers” rather than “revenue centers” by
DIRECTV.48

They also contend the DIRECTV sites never received money from

DIRECTV’s customers and were not set up to do so.
DIRECTV cites numerous cases in which courts have concluded cable companies
are “retail or service establishments” under the 7(i) exemption. See Jones v. Tucker
Commcn’s, Inc., Civil Action No. 5:11-CV-398 (MTT), 2013 WL 6072966, at *5-9
(M.D. Ga. Nov. 18, 2013); Moore v. Advanced Cable Contractors, Inc., Civil Action
No. 1:12-CV-00115-RWS, 2013 WL 3991966, at *3 (N.D. Ga. Aug. 1, 2013); Owopetu
v. Nationwide CATV Auditing Servs., Inc., No. 5:10-CV-18, 2011 WL 4433159, at *37 (D. Vt. Sept. 21, 2011). DIRECTV also argues that plaintiffs’ reliance on A.H. Phillips
is misplaced, as the warehouse workers in that case were undisputedly engaged in
wholesale, not retail services, which the Court found significant.

Additionally,

DIRECTV argues the unavailability of its warehouses to the general public is
insignificant. See 29 C.F.R. § 779.319 (“[a]n establishment, however, does not have to
be actually frequented by the general public in the sense that the public must actually visit
it and make purchases of goods or services on the premises in order to be considered as
available and open to the general public.”). The regulation provides an example that a
refrigerator repair service shop is considered available and open to the general public
even if it receives all of its orders by telephone and performs all of its repair services on
the premises of its customers. Id. DIRECTV also references English v. EcoLab, Inc.,
No. 06 Civ. 5672(PAC), 2008 WL 878456, at *9-10 (S.D.N.Y. Mar. 31, 2008), in

48

DIRECTV disputes this fact. Doc. No. 87-1 at ¶ 95. It notes that this is simply Jackson’s
opinion, rather than a fact, and that plaintiffs have cited no record evidence regarding the Sioux
Falls site.

59

which the court found service specialists who were stationed out of their homes were
available to the public and were, therefore, employees of an “establishment.”
Having considered these arguments and authorities, I find the undisputed facts
demonstrate that DIRECTV is a “retail and service establishment” as the Eighth Circuit
defined that term in Reich. It is undisputed that the goods and services provided by
DIRECTV are not for resale because they are provided to end user customers in their
homes. See Doc. No. 88-1 at ¶ 1. The second part of the analysis requires DIRECTV
to prove that its business is recognized as retail in the industry. This involves a twoprong inquiry of whether (1) the establishment is part of an industry in which there is a
“retail concept” and (2) the establishment’s services are recognized as retail in that
particular industry. Id. at 436.
With regard to whether DIRECTV has a “retail concept,” I find persuasive the
reasoning of those cases that have concluded cable installers (i.e., contracting companies)
have a retail concept. See Jones v. Tucker Commcn’s, Inc., 2013 WL 6072966, at *5-9;
Moore, 2013 WL 3991966, at *3; Owopetu, 2011 WL 4433159, at *3-7; Johnson v.
Wave Comm GR LLC, 4 F. Supp. 3d 423, 447-30 (N.D.N.Y. 2014); Matrai, 168 F.
Supp. 3d at 1361-62. These cases focus on whether the establishment “sells goods or
services to the general public” and “serves the everyday needs of the community in which
it is located.” See 29 C.F.R. § 779.318(a). If this definition applies to the contracting
companies, then it certainly applies to the cable provider that supplies the ultimate product
being purchased.
With regard to whether DIRECTV’s business is recognized as “retail” in the
industry, I also find no genuine issue of material fact. While plaintiffs have submitted
testimony from executives of two of DIRECTV’s home service providers that they do
not consider their businesses to be “retail,” I find this is not sufficient to generate a
genuine issue of material fact as to whether DIRECTV’s business is recognized as “retail”
in the industry.

The executives were only asked about their businesses and not
60

DIRECTV’s business. Even when viewing the facts in the light most favorable to
plaintiffs, there is no evidence in the record upon which a jury could rely to conclude
that DIRECTV is not recognized in the industry as “retail.” The declaration submitted
by DIRECTV from the Deputy Executive Director of the Satellite Broadcast and
Communications Association, a national trade organization, is sufficient to establish this
prong. For these reasons, I find the undisputed facts demonstrate that DIRECTV is a
retail and service establishment for purposes of the 7(i) exemption.
b.

Was More Than Half of Plaintiffs’ Pay Commissions?

“Commission” is not defined in the FLSA. However, some courts rely on the
following three factors:
(1) the employee’s compensation must be tied to customer demand or the
quantity of sales; (2) the compensation plan must provide performancebased 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.
Johnson, 4 F. Supp. 3d at 442. As noted above, plaintiffs testified they were paid on a
piece-rate basis.

DIRECTV relies on Alvarado and Matrai to argue that plaintiffs

received commission-based payment. In Alvarado, the plaintiffs were window washers
who were paid on a piece-rate basis pursuant to a collective bargaining agreement.
Alvarado v. Corporate Cleaning Servs. Inc., 782 F.3d 365, 367 (7th Cir. 2015).

The

court reasoned that this was a commission system because the window washers were paid
only if there was a sale. Id. The court found that in a true piece-rate system, a worker
would be paid per item produced, even if there was no sale. Id. The court also found
that the compensation paid to each worker was proportional and correlated to the price
charged to the customer. Id. at 368. For each window washing job, a certain number
of points was assigned based on the job’s complexity and the estimated number of hours
it would take to complete it. Id. at 367. Workers were then paid by the number of points
61

allocated to them multiplied by a rate specific to each worker. Id. The company also
used the number of points assigned to a job to determine the price to charge customers.
Id. The company would also make price adjustments, such as adding costs of permits
and equipment rentals, rounding the price to the nearest $24 increment, or reducing the
price to remain competitive. Id. Finally, the Alvarado court found the irregular work
hours to be indicative of a commission-based payment system. Id. at 368.
The Matrai court relied on Alvarado and concluded that a commission system is
one that pays employees upon a sale, at a rate that is related to the price of the sale, and
for work involving irregular hours. Matrai, 168 F. Supp. 3d at 1364. It found that all
three indicators in that case had been met as to plaintiffs who installed DIRECTV
systems. It reasoned that the plaintiffs’ compensation fluctuated with the value of the
services they performed and additional products they sold, that the rate of pay did not
depend on the time it took to complete the work orders, that they could earn more by
completing more jobs in a day and that they worked irregular hours. Id. at 1364-65.
Here, Grill admitted he was paid based on the work orders he completed. Doc.
No. 62-2 at 23-24. He also admitted that work orders were generated based on customer
orders for DIRECTV service. Id. at 101. He was paid a certain amount for a basic job
and received additional pay for installation of additional receivers. Id. at 20. The amount
he was paid did not depend on how long it took him to complete the work order. Id. at
64. Similarly, Roeder testified he was paid based on the work orders he closed. Doc.
No. 59-2 at 34. Roeder also was not paid differently depending on how long it took him
to complete an order. Id. at 100.49

49

DIRECTV asserts that Roeder also admitted he was paid more for jobs that involved installing
multiple receivers and that he earned additional money for work orders if he performed custom
labor or sold the DIRECTV Protection Plan to customers. See Doc. No. 59-3 at 22. Roeder

62

Plaintiffs argue their pay was not commission-based because it was not
proportional to the costs to the consumer. See Parker v. NutriSystem, Inc., 620 F.3d
274, 283 (3d Cir. 2010) (“We conclude that when the flat-rate payments made to an
employee based on that employee’s sales are proportionally related to the charges passed
on to the consumer, the payments can be considered a bona fide commission rate for the
purposes of § 7(i).”). DIRECTV argues 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. DIRECTV also relies on
Matrai’s reasoning that when technicians are paid a base amount for a work order and
are paid extra for installing additional receivers, the rate of pay received by the technician
is related to the price of the sale to the customer. See Matrai, 168 F. Supp. 3d at 1364.
While the record in Matrai may have supported that position, DIRECTV has not pointed
to anything in this record demonstrating plaintiffs’ compensation was related in any way
to the price paid by the customer. The fact that plaintiffs were paid more for a work
order that included additional receivers says nothing about the charges passed on to the
customer. Indeed, DIRECTV has not offered any evidence regarding how customers
were charged for specific services performed by plaintiffs. Compare Alvarado, 782 F.3d
at 366-67 (describing the company’s use of a point system to calculate both the sales price
and the compensation paid).
“The hallmark of a commission-based system is the decoupling of payment from
actual time worked.” Almanzar v. C & I Assocs., Inc., 175 F. Supp. 3d 270, 275

testified that he was paid directly for his custom work, so that cannot be considered commissionbased. The other facts are not supported by the record as cited. See Doc. No. 59-2 at 73-74
(discussing whether Roeder filled in dollar amounts for work orders he completed, in which he
testified he was not sure); see also id. at 13, 64-65, 107-08 (acknowledging he sometimes
charged customers extra for custom labor, but as to the protection plan it was his understanding
that he had to meet a quota or DIRECTV would stop assigning him work orders). Roeder did
not testify that he earned additional money if he sold the protection plan.

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(S.D.N.Y. 2016).

When payment is not based on time worked, it presumably

incentivizes the employee to complete work efficiently so he or she may take on additional
work and earn more. The court in Matrai relied heavily on this factor, noting that the
more jobs plaintiffs completed in a day, the more they were paid. Matrai, 168 F. Supp.
3d at 1365. While the plaintiffs in that case were expected to handle at least three jobs a
day, they handled more jobs on some days and less on others. Id. Here, both plaintiffs
testified they were paid a set amount for a work order regardless of how long it took
them to complete it. However, the idea that they could earn more if they worked
efficiently is not supported by the record. See Doc. No. 59-2 at 100 (in which Roeder is
asked if he could earn more by completing more work orders, but his answer has been
left out of the record); Doc. No. 62-2 at 76-77 (in which Grill testifies that he can recall
only one occasion where he got done early and asked his supervisor if anyone needed
help, but could not recall whether he received an additional work order). I also do not
find Matrai persuasive on this point, as it is not clear from the court’s opinion whether
the fluctuation in hours and work orders was based on plaintiffs’ efficiency or customer
demand.
I find that DIRECTV has not met its burden of showing, as a matter of law, that
more than half of plaintiffs’ compensation was based on commissions. Plaintiffs had no
involvement in the sales aspect through which DIRECTV work orders were generated.
While plaintiffs were paid the same amount for a job regardless of how quickly they
completed the work, there is no evidence that this incentivized them to work efficiently
so that they could receive additional work orders and earn more. Finally, there is
insufficient evidence of any proportionality between the prices paid by DIRECTV
customers and the compensation paid to plaintiffs.

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c.

Was Plaintiffs’ Regular Rate of Pay At Least One and OneHalf Times the Minimum Wage?

The third requirement for the 7(i) exemption is that the employee’s regular rate of
pay is at least one and one-half times the minimum wage. The regular rate of pay is
calculated by “the rate per hour, computed for the particular workweek by a mathematical
computation in which hours worked are divided into straight-time earnings for such hours
to obtain the statutory regular rate.” 29 C.F.R. § 779.419. DIRECTV argues that
plaintiffs’ own testimony establishes they were paid more than one and one-half times the
applicable minimum wage. It is undisputed that at all relevant times, the federal minimum
wage was $7.25 per hour. See 29 U.S.C. § 206. Grill admitted that he earned an average
of $18.18 per hour.

See Doc. No. 62-2 at 44-45 (stating that his paycheck was

approximately $1,000 per week and he worked approximately 55 hours each week).
Roeder admitted that he earned an average of $20 per hour. See Doc. No. 59-2 at 104
(stating that on average he earned $1,200 per week and worked 55 to 60 hours).
Plaintiffs argue that DIRECTV cannot establish this element because it did not
track plaintiffs’ pay or hours worked. See Doc. No. 62-1 at ¶ 63 (“DIRECTV did not
have any role in deciding how or how much contracting companies and their
subcontractor paid their technicians . . . .”).50 They also argue that relying on plaintiffs’
generalized testimony regarding gross pay is insufficient because it does not establish
plaintiffs’ actual compensation after being subjected to chargebacks and unreimbursed
business expenses. Finally, plaintiffs argue that pursuant to Johnson, DIRECTV cannot
meet its burden under § 207(i) by using the average hours reported by plaintiffs. In
Johnson, the court held that estimated hours provided by the plaintiffs in interrogatory
answers could not be used to determine compensation because the regular rate of pay had

50

Of course, DIRECTV argues it was not required to keep records of “[h]ours worked each
workday and total hours worked each workweek,” see 29 C.F.R. § 516.2(a)(7), because it was
not plaintiffs’ employer.

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to be calculated on a weekly basis. Johnson, 4 F. Supp. 3d at 445 (citing 29 C.F.R. §
778.104, which provides that a single workweek is the standard and averaging of hours
over 2 or more weeks is not permitted). Because the employer had not tracked actual
weekly hours, the court held the defendant could not satisfy this prong of the exemption
for that period.
Unlike the plaintiffs in Johnson, the estimated pay rates here are calculated on a
weekly basis. Under 29 C.F.R. § 778.104, each workweek stands alone such that an
employee who works 30 hours one week and 50 hours the next would be entitled to
overtime compensation the second week even though the average between the two weeks
is 40 hours per week. That is not the situation here. Roeder and Grill estimated that
each week they worked at least 55 hours. They also estimated they were paid about
$1,000 (Grill) and $1,200 (Roeder) per week.
Some courts have found a genuine issue of material fact on this element when
neither party kept records of the number of hours worked. See Klinedinst v. Swift Invs.,
Inc., 260 F.3d 1251, 1257 (11th Cir. 2001) (noting the number of hours worked per
week was a genuine issue of material fact where plaintiff maintained that he worked at
least 3,000 hours more than the regular 40-hour week during his period of employment).
Other courts have found that a plaintiff’s admission of weekly working hours and
compensation is sufficient for a defendant to meet its burden of proving this element. See
Kuntsmann v. Aaron Rents, Inc., 903 F. Supp. 2d 1258 (N.D. Ala. 2012) (concluding
plaintiff’s testimony about his working hours and defendant’s record of plaintiff’s
compensation proved that plaintiff’s regular rate of pay exceeded one and one-half times
the minimum wage). While plaintiffs argue that their weekly compensation estimates do
not account for chargebacks or unreimbursed business expenses, they have not pointed
to any evidence that deducting those items would reduce their rates of pay, as calculated
on a weekly basis, below one and one-half times the minimum wage. Nor have they
presented other evidence giving rise to a genuine issue of material fact on this element.
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Even when viewing the facts in the light most favorable to plaintiffs, I find DIRECTV
has met its burden of showing that plaintiffs’ regular rate of pay was above one and onehalf times the minimum wage.
Nonetheless, because DIRECTV has not established, as a matter of law, all three
prongs that are required to establish a § 207(i) exemption, its motions for summary
judgment must be denied on this issue. Plaintiffs’ motion for summary judgment as to
the non-application of this exemption must likewise be denied.
4.

Is There Adequate Evidence Regarding DIRECTV’s Knowledge of
Any FLSA Violations?

DIRECTV argues that in order for plaintiffs to prevail on their FLSA overtime
claims, they must demonstrate that DIRECTV “knew or should have known that [they
were] working overtime.” Doc. No. 59-3 at 13. I find this issue to be premature given
that there are questions of fact to be resolved at trial as to whether plaintiffs were
employees or independent contractors. DIRECTV’s alleged knowledge that plaintiffs
were working overtime hours will be a relevant issue only if (a) plaintiffs are found to
have been DIRECTV employees and (b) the § 207(i) exemption does not apply.
Therefore, DIRECTV’s request for summary judgment on this basis will be denied.
5.

Are Roeder’s Claims Barred By The FLSA’s Statute of Limitations?

DIRECTV argues that Roeder’s claim is time-barred as to any work he performed
prior to July 21, 2010. The FLSA’s statute of limitations is two years, or three years if
the plaintiff can show the violation was willful. See 29 U.S.C. § 255(a). The statute
begins running from the date a plaintiff files a complaint or consents to join an action.
29 U.S.C. § 256. It is undisputed Roeder filed his consent to opt into a conditionallycertified FLSA action on July 21, 2012, in Lang v. DirecTV. See Doc. No. 89-1 at ¶
112.
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Roeder argues that there is sufficient evidence in the record for a jury to conclude
that DIRECTV’s alleged FLSA violation was willful. The Supreme Court has defined a
“willful” violation as one 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). As with the issue of DIRECTV’s
knowledge of any alleged violation, I find that the degree of that knowledge – and whether
it amounted to willfulness – is premature. Moreover, willfulness is an issue best left to
the jury. See Fowler v. Land Mgmt. Groupe, Inc., 978 F.2d 158, 163 (4th Cir. 1992)
(“there is no reason that the issue of ‘willfulness’ should be treated any differently from
other factual determinations relating to application of a statute of limitations that are
routinely submitted to the jury.”); Morrison v. Quality Transports Servs., Inc., 474 F.
Supp. 2d 1303, 1313 (S.D. Fla. 2007) (“The issue of willfulness under § 255(a) is a
question of fact for the jury not appropriate for summary disposition.”).
I note that when the record is viewed in the light most favorable to plaintiffs, there
is some evidence from which reasonable jurors could find that any overtime violations
by DIRECTV was willful. DIRECTV used both 1099 and W-2 technicians. It created
daily work orders and assigned those orders to individual technicians, including plaintiffs.
DIRECTV had some knowledge of plaintiffs’ hours based on plaintiffs’ availability and
the work orders entered into its SIEBEL system, which includes an expected duration for
each work order. While DIRECTV disputes that it used SIEBEL to track or manage a
subcontractor’s work, see Doc. No. 76-2 at ¶ 38, it admits that SIEBEL reflected the
time period in which a technician may be scheduled to begin a job and tracked every
work order from its creation until it was closed.

Id. at ¶¶ 40, 46.

demonstrates there are disputed facts relevant to the willfulness issue.

The record
Therefore,

summary judgment on the issues of willfulness and the statute of limitations is
inappropriate.
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6.

Do Plaintiffs Have Sufficient Proof of Damages?

DIRECTV contends that the plaintiffs have no evidence showing the amount or
extent of unpaid work. They rely on Holaway v. Stratasys, Inc., 771 F.3d 1057 (8th
Cir. 2014), in which the court affirmed summary judgment in favor of the employer when
the plaintiff failed to produce sufficient evidence of the amount and extent of overtime
work. Plaintiffs argue that Holaway and related cases make it clear that plaintiffs’ burden
to prove a violation of the FLSA is distinct and separate from their burden to prove the
extent of their damages.
“An employee who sues for unpaid overtime ‘has the burden of proving that he
performed work for which he was not properly compensated.’” Holaway, 771 F.3d at
1059 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)).
Employers are required to keep records of wages and hours for employees subject to the
overtime requirements of the FLSA. 29 U.S.C. § 211(c). “If an employer has failed to
keep records, employees are not denied recovery under the FLSA simply because they
cannot prove the precise extent of their uncompensated work.” Holaway, 771 F.3d at
1059. Instead, the “most accurate basis possible” may be used to calculate compensation
owed. Id. (quoting Dole v. Tony & Susan Alamo Found., 915 F.2d 349, 351 (8th Cir.
1990)). Under this relaxed evidentiary standard, the employee must demonstrate work
performed for which the employee was not compensated, and “sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable inference.”
Carmody v. Kansas City Bd. Of Police Comm’rs, 713 F.3d 401, 406 (8th Cir. 2013)
(quoting Anderson, 328 U.S. at 687-88). Then, the burden “shifts to the employer to
produce evidence to dispute the reasonableness of the inference.” Id.
DIRECTV contends it is entitled to judgment as a matter of law on this basis
because plaintiffs have come forward with only “contradictory and bare assertions” of
unpaid hours worked. As to Roeder, DIRECTV notes that he has not been forthcoming
or consistent concerning the precise dates he worked for Wireless Technologies and
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White Communications.

Roeder also claimed in his answers to interrogatories that he

worked approximately 55 hours per week, but in his deposition claimed he worked
approximately 60 hours per week. In addition, Roeder admitted that he has never added
up the hours he claims were spent performing tasks for which he allegedly was not paid
and admits he has no documents or witnesses to support his allegation of 15 hours of
unpaid work each week.
As to Grill, DIRECTV notes that he alleged he worked 50 hours per week in a
discovery questionnaire, 60 hours per week in his complaint and 55 hours per week in
his interrogatory answers and deposition. To the extent plaintiffs intend to rely on
SIEBEL, DIRECTV objects because the subcontracting companies for which the
plaintiffs worked engaged in “ghosting,” meaning one technician would perform work
under another technician’s number.

Therefore, according to DIRECTV, the hours

reflected for plaintiffs may not accurately represent hours they actually worked.
DIRECTV asserts that the plaintiffs have presented no competent evidence of the amount
of any alleged, unpaid overtime hours worked and, therefore, that it is entitled to
summary judgment.
Plaintiffs argue they have submitted sufficient evidence to demonstrate the
existence of damages and they are not required at this point to demonstrate how much
those damages may be. Plaintiffs admit that the evidence of their damages is limited to
their own testimony. They contend they are unable to offer anything more precise
because DIRECTV disregarded its alleged record-keeping obligations.
I find that summary judgment is not appropriate on this basis. While plaintiffs’
evidence certainly gives rise to credibility issues, those issues are better left to a jury.
See Grage, 813 F.3d at 1056 (“[c]redibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts should be left to the jury.”)
(internal quotations omitted).

Plaintiffs have submitted sufficient evidence that, if

credited, could lead the jury to conclude that they did suffer damages as a result of
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DIRECTV’s alleged overtime violations. DIRECTV will have the opportunity at trial to
cross-examine plaintiffs on their estimates, point out the inconsistencies and argue why
those estimates insufficient. At this stage, however, plaintiffs’ evidence is sufficient to
survive summary judgment.
V.

CONCLUSION

For the reasons stated herein:
1.

Defendants’ motion (Doc. No. 75) to strike the statement of Kevin Jackson

in support of plaintiffs’ motion for partial summary judgment is denied.
2.

Plaintiffs’ motion (Doc. No. 83) for leave to file statements of additional

facts and appendices out of time is granted.
3.

Defendants’ motion (Doc. No. 59) for summary judgment on the claims of

plaintiff Roeder is denied.
4.

Defendants’ motion (Doc. No. 62) for summary judgment on the claims of

plaintiff Grill is denied.
5.

Plaintiffs’ motion (Doc. No. 67) for partial summary judgment is denied.

6.

This case will proceed to trial as scheduled on June 5, 2017.

IT IS SO ORDERED.
DATED this 13th day of January, 2017.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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