Lang et al v. Directv, Inc. et al
ORDER & REASONS denying dfts DirecTv, Inc. and JP&D Digital Satellite Systems, Inc.'s 101 Motion for Partial Summary Judgment. Signed by Chief Judge Sarah S. Vance on 7/12/2011. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTIAN LANG, ET AL.
DIRECTV, INC., ET AL.
ORDER AND REASONS
In this Fair Labor Standards Act (FLSA) and Louisiana Wage
Payment Act (LWPA) case, defendants DirecTV, Inc. and JP&D
Digital Satellite Systems, Inc. move for partial summary judgment
seeking dismissal of the claims asserted by plaintiffs Christian
Lang, Larry Tucker, and Edward Dwayne Humphrey.1
are genuine issues of fact as to whether Lang, Tucker, and
Humphrey are employees under the FLSA and LWPA, defendants’
motion is DENIED.
Plaintiffs are satellite television technicians who
installed DirecTV systems at customers’ houses.
DirecTV is the
largest provider of satellite television services in the United
DirecTV provides for the installation and maintenance of
its systems in customers’ homes by directly hiring thousands of
technicians and by contracting with entities known as Home
R. Doc. 101. Defendants have not moved to dismiss the
claims of the fourth plaintiff, Gary Smith. Further, defendant
Modern Day has not joined in this motion.
Service Providers (HSPs).
JP&D was an HSP for DirecTV, and for a
time, Modern Day was also an HSP.
For most of the time period at
issue, however, Modern Day was a subcontractor under JP&D.
and Humphrey began working under Modern Day in 2007, and Tucker
began doing so in March 2008.
Plaintiffs filed this action in state court on February 22,
2010, and defendants removed the case to this Court.2
bring a collective action under the FLSA, alleging that they are
employees of defendants and that defendants engaged in minimum
wage, overtime, retaliation, and record-keeping violations.
Plaintiffs also bring a class action for alleged violations of
the Louisiana wage and hour laws and for state law tort
First, plaintiffs allege that the defendants failed
to record or pay wages, or deducted wages, for time actually
These uncompensated hours include time worked before the
first and after the last customer visit of the day, travel time,
and meal periods during which work was performed.
plaintiffs allege that the defendants failed to calculate the
applicable overtime rate properly.
Third, plaintiffs allege that
the defendants engaged in a “charge-back scheme” in which they
improperly withheld certain amounts from plaintiffs’ pay.
times, plaintiffs allege, they were charged more than they earned
and therefore lost money on a particular job.
R. Doc. 1.
On August 13, 2010, the Court dismissed plaintiffs’ state
law fraud claim but otherwise denied defendants’ motions to
In particular, the Court ruled that plaintiffs
adequately alleged that they were employed by defendants.
Court then granted plaintiffs’ ex parte motion to dismiss their
intentional infliction of emotional distress, negligent
infliction of emotional distress, and conversion claims.4
DirecTV and JP&D now move for partial summary judgment on the
grounds that plaintiffs were independent contractors rather than
employees of Modern Day.
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.”
R. Doc. 42.
Delta & Pine Land Co. v. Nationwide
R. Doc. 142.
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008).
reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985); Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’”
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.”
Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim.
See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists.
See id. at 324.
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial.
e.g., id. at 325; Little, 37 F.3d at 1075; Isquith for and on
Behalf of Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198
(5th Cir. 1988), cert. denied, 488 U.S. 926 (1988).
Timing of Motion
Plaintiffs argue that the motion for partial summary
judgment is premature and that they should be given the
opportunity to conduct further discovery on the issue of whether
they are employees or independent contractors.
Under Fed. R.
Civ. P. 56(d), a court may defer consideration of a motion for
summary judgment if the opposing party “shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition[.]”
To obtain such a
continuance, the party must indicate “why he needs additional
discovery and how the additional discovery will create a genuine
issue of material fact.”
Krim v. BancTexas Group, Inc., 989 F.2d
1435, 1442 (5th Cir. 1993) (emphasis in original).
In this case, plaintiffs have had ample time in which to
Plaintiffs filed this case over a year ago,
on February 22, 2010, and the first scheduling order was issued
on May 27, 2010.5
When the original discovery deadline
approached, the Court granted plaintiffs’ motion to continue the
trial and all pre-trial deadlines for approximately six months.6
At the last hearing in this matter, plaintiffs were allowed an
extension to submit the “blast facts”.7 Defendants’ motion for
partial summary judgment is by no means premature, and plaintiffs
have had adequate time to conduct discovery.
The Court therefore
DENIES plaintiffs’ request to defer consideration of the motion.
Employment Status under the FLSA
DirecTV and JP&D contend that plaintiffs are independent
contractors rather than employees of Modern Day and therefore are
not covered by the FLSA.
See Weisel v. Singapore Joint Venture,
Inc., 602 F.2d 1185, 1188 (5th Cir. 1979) (FLSA covers only
Defendants ask the Court to limit its inquiry to the
relationship between plaintiffs and Modern Day and not to
consider whether defendants are joint employers.
employment exists, however, courts consider the relationship
among the plaintiffs and all of the joint employers in
determining whether the plaintiffs are employees or independent
See Schultz v. Capital Intern. Sec., Inc., 466 F.3d
298, 307 (4th Cir. 2006) (“Because [defendants] were joint
R. Doc. 26.
R. Doc. 74.
R. Doc. 124.
employers of [plaintiffs], the employment arrangement must be
viewed as “one employment” for purposes of determining whether
[plaintiffs] were employees or independent contractors under the
FLSA.”) (citing 29 C.F.R. § 791.2(a)); see also Zheng v. Liberty
Apparel Co. Inc., 355 F.3d 61, 67-68 (2d Cir. 2003) (unlike the
joint employment issue, the independent contractor issue requires
a determination of whether a worker is “independent of all
employers”) (emphasis in original).
Limiting the analysis to
plaintiffs’ relationships with Modern Day would effectively be to
assume that DirecTV and JP&D are not joint employers of
plaintiffs, and the Court cannot make such an assumption at this
See Schultz, 466 F.3d at 305-07 (finding that the
district court erred in its analysis when it compared the control
one alleged employer exerted over the manner of work in
comparison to another employer because the proper inquiry
requires a determination of the total control of the alleged
employers in comparison to the control exerted by the worker).
Therefore, for purposes of deciding this motion for summary
judgment, the Court must view the working relationship between
each plaintiff and all three defendants as “one employment.”
The FLSA defines “employee” as “any individual employed by
an employer,” 29 U.S.C. § 203(e)(1), and “employ” as “to suffer
or permit to work.”
Id. § 203(g).
The Supreme Court has
observed that this definition is broad.
Rutherford Food Corp. v.
McComb, 331 U.S. 722, 728 (1947).
In determining whether an
employment relationship exists, the Court must “focus on whether,
as a matter of economic reality, the worker is economically
dependent upon the alleged employer or is instead in business for
Hopkins v. Cornerstone America, 545 F.3d 338, 343 (5th
The Court is guided by the following non-exclusive
factors: “(1) the degree of control exercised by the alleged
employer; (2) the extent of the relative investments of the
worker and the alleged employer; (3) the degree to which the
worker’s opportunity for profit or loss is determined by the
alleged employer; (4) the skill and initiative required in
performing the job; and (5) the permanency of the relationship.”
There is no single determinative factor in this analysis,
and the Court must consider the economic relationship as a whole.
Thibault v. Bellsouth Telecommunications, Inc., 612 F.3d 843, 846
(5th Cir. 2010).
Courts that have examined whether satellite and cable
installers are employees under the FLSA have reached mixed
Compare Freund v. Hi-Tech Satellite, Inc., 185
Fed.Appx. 782 (11th Cir. 2006) (holding that satellite installer
was independent contractor); Herman v. Mid-Atlantic Installation
Services, Inc., 164 F.Supp.2d 667 (D.Md. 2000), aff’d, 16 Fed.
Appx. 104 (4th Cir. 2001) (cable installers were independent
contractors); and Dole v. Amerilink Corp., 729 F.Supp. 73 (E.D.
Mo. 1990) (same); with Parrilla v. Allcom Const. & Installation
Services, No. 6:08-cv-1967-Orl-31GJK, 2009 WL 2868432 (M.D. Fla.
Aug. 31, 2009) (holding that cable installer was employee); and
Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1323 (S.D. Fla.
2001) (genuine issue of fact as to whether cable installer was
Whether an individual is an employee or an
independent contractor is highly dependent on the specific
context in which an individual performs his work.
F.3d at 848.
In addition, it is difficult to generalize from the
case law on independent contractor versus employee status because
the courts are not consistent in the degree of emphasis they
place on the different factors in the analytical mix.
record presented here, the Court finds that disputed issues of
material fact prevent the Court from accurately assessing the
economic relationships among these parties as a whole.
will address these factual issues below.
I. Degree of Control
The Fifth Circuit has made clear that “[c]ontrol 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.”
Hopkins v. Cornerstone America, 545
F.3d 338, 343 (5th Cir. 2008) (quoting Brock v. Mr. W Fireworks,
Inc., 814 F.2d 1042, 1049 (5th Cir. 1987)).
In this case, there
is a genuine issue of material fact as to the nature and degree
of the control that defendants exerted over plaintiffs.
Defendants exercised some control over plaintiffs in the
course of the workday.
The process of assigning technicians to
jobs was performed at first by Modern Day, and later by DirecTV’s
Siebel software program.8
On a typical workday, plaintiffs were
required to be at Modern Day’s office at 7:00 a.m. sharp, or as
early as 6:00 a.m. if meetings were scheduled.9
assigned plaintiffs to windows in which jobs were to be
performed, from 8:00 a.m. to 12:00 p.m., 12:00 p.m. to 5:00 p.m.,
and 4:00 p.m. to 8:00 p.m.10
Plaintiffs could choose the order
in which they performed jobs within a given window.11 See
Hathcock v. Acme Truck Lines, Inc., 262 F.3d 522, 527 (5th Cir.
2001) (truck driver who had the “ability to pick his delivery
route and work details” was nonetheless an employee).
Plaintiff Edward Dwayne Humphrey states that DirecTV’s
policy, passed down by JP&D and Modern Day, was that technicians
would be fired if they did not work evening jobs.12
R. Doc. 98, Ex. 6 (Declaration of Mary Ellen
Tucker Deposition at 80.
R. Doc. 133, Ex. A (Humphrey Deposition), at 55.
R. Doc. 114, Ex. D (Lang Deposition), at 49-50; R. Doc
133, Ex. B (Tucker Deposition), at 83.
Humphrey Deposition at 55.
assertion, if proven, could indicate that defendants exerted
significant control over plaintiffs’ workdays.
It is true that a
company may choose not to hire an independent contractor who
refuses to take on unpleasant tasks, such as working in the
Nonetheless, defendants’ alleged control over what
shifts plaintiffs worked is more characteristic of an employeremployee relationship than an independent contractor
Cf. Santelices, 147 F.Supp.2d at 1321 (evidence of
purported employer’s control included cable installer’s belief
that he would be fired for any absence).
Plaintiffs have also provided a number of DirecTV
publications specifying how technicians were required to perform
a wide variety of tasks.13
For example, plaintiffs have provided
an email from DirecTV entitled “Blast Facts” which specifies,
among other things, that a second opinion is required whenever a
technician determines that there is no line of sight for an
Another memorandum specifies that technicians
must spend at least 20 minutes on customer education at each job
The parties dispute whether these directives actually
reached the technicians.
R. Doc. 126, Ex. E.
Id. at 5.
Id. at 21.
Technical specifications, such as those that appear in the
Blast Facts and the other memoranda sent out by DirecTV, do not
necessarily render the plaintiffs employees.
require technicians, whether employees or independent
contractors, to perform their tasks in accordance with
As the court noted in Herman v. Mid-Atlantic
Installation Services, Inc., 164 F.Supp.2d 667, 672-73 (D.Md.
2000), a painter does not become an employee simply by painting a
house the color directed by a homeowner.
Nonetheless, by setting
out the minimum number of minutes that technicians were required
to provide customer education, and by requiring a second opinion
before a technician could decide that there was no line of sight
for an installation, these memoranda create an issue of fact as
to whether defendants went beyond providing mere technical
specifications. See Carrell v. Sunland Const., Inc., 998 F.2d
330, 334 (5th Cir. 1993) (citing Robicheaux v. Radcliff Material,
Inc., 697 F.2d 662, 667 (5th Cir. 1983)) (defendant’s
instructions as to how long an assignment should take was an
indication of an employer-employee relationship).
directions were passed down to plaintiffs, and the extent to
which plaintiffs retained discretion in performing their jobs,
are disputed issues of fact.
Further, defendants deducted fees from plaintiffs pay when
defendants were dissatisfied with the results of quality control
According to plaintiffs, these fees sometimes exceeded
the amounts that plaintiffs earned per job.16
plaintiffs stated that they were unable to complain to DirecTV
regarding the assessment of fees17 and that the deductions
originated with DirecTV.18
Controlling technicians by imposing
penalties for failing to meet specifications is not incompatible
with an independent contractor relationship, as a hiring party
may withhold funds from an independent contractor when work is
late or not done properly.
See Herman, 164 F.Supp.2d at 673.
arrangement in which defendants charged plaintiffs more than they
earned for a particular job, however, would undermine plaintiffs’
economic independence in a more serious way.
See Parrilla, 2009
WL 2868432, at *3 (charge-backs that exceeded amounts technicians
were supposed to receive per job demonstrated employer’s
Although DirecTV representative Lee Branning asserts
that deductions were not generally made per job, apart from
deductions for failing to meet the “on-time guarantee,”19 whether
defendants regularly “charged back” plaintiffs more than they
earned for a given job is a disputed issue of material fact.
Humphrey Deposition at 241.
Lang Deposition at 198; Humphrey Deposition at 243.
Lang Deposition at 148-151.
R. Doc. 114, Ex. C (Branning Deposition) at 86.
Thus, material facts remain in dispute, including 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 that plaintiffs
retained in performing their jobs, and whether plaintiffs were
“charged back” more than they earned on particular jobs.
Court is therefore unable to determine whether plaintiffs acted
under the defendants’ control as a matter of summary judgment.
ii. Opportunity for Profit or Loss
The record is likewise conflicting on the extent to which
defendants controlled plaintiffs’ opportunities for profit or
Defendants set the job assignments for each technician,
and plaintiffs generally followed those assignments, although
trades were possible.20
Defendants paid plaintiffs set amounts
per job, and there is no indication that plaintiffs could
negotiate the prices they received for standard jobs.21
even in the instances when plaintiffs did custom work, DirecTV
had to approve what they charged for it.22
Plaintiffs did have the opportunity to obtain more jobs, and
thus more profit, if they efficiently completed the jobs they
Humphrey Deposition at 55; Tucker Deposition at 86.
Lang Deposition at 68-9; Humphrey Deposition at 131-32.
R. Doc. 126-8, Ex. E.
Humphrey, for example, agreed with the
characterization that he sometimes worked harder to get more
jobs, and that at other times willingly took a lighter load.24
The Fifth Circuit has ruled, however, that “initiative, not
efficiency determines independence.”
Hathcock v. Acme Truck
Lines, Inc., 262 F.3d 522, 527 (5th Cir. 2001) (quoting Herman v.
Express Sixty-Minutes Delivery Service, Inc., 161 F.3d 299, 305
(5th Cir. 1998)).
Defendants argue that plaintiffs had the ability to maximize
profits by selecting where to buy cables and other supplies.25
Plaintiffs could buy supplies from Modern Day, but they could
sometimes get better deals from wholesalers.26
See Carrell v.
Sunland Const., Inc., 998 F.2d 330, 334 (5th Cir. 1993) (ability
to increase profits by controlling costs suggests independent
Humphrey indicates, however, that even
though buying from wholesalers was a possibility, it was
difficult for him to get a day off to travel to the nearest
wholesalers in New Orleans or Baton Rouge.27
Humphrey Deposition at 285-86.
Id. at 175, 286.
Lang Deposition at 49; Humphrey Deposition at 177,
Tucker Deposition at 72.
Humphrey Deposition at 177.
Humphrey Deposition at 178.
asserts, he most often bought his supplies directly from Modern
Plaintiffs’ ability to buy supplies from wholesalers as a
practical matter is a disputed issue.
Plaintiffs’ ability to influence their profits and losses is
also impacted by the extent to which defendants could deduct fees
from plaintiffs’ pay.
This is particularly true if the
defendants deducted fees in excess of the value of the jobs
performed, and plaintiffs had no means of recourse to dispute the
deductions. Cf. Parrilla, 2009 WL 2868432, at *4 (technicians
were employees when they had no control over the kinds of jobs
they were assigned).
As the Court previously noted, there are
disputed issues of fact related to the “charge backs”.
Accordingly, there are disputed issues of material fact on the
issue of the extent to which plaintiffs’ opportunity for profit
or loss is controlled by the employer that preclude summary
iii. Skill and Initiative
The Fifth Circuit looks to both skills and ability to
exercise initiative to determine whether workers are employees
under the FLSA.
Even if the Court were to find no issue of fact
that plaintiffs’ jobs required skill, the issue of plaintiffs’
ability to exercise initiative is a mixed bag that, if anything,
points in the direction of employee status.
Plaintiffs had the
ability to increase their profits by working more efficiently,
and they could show initiative as to the order in which they
performed the jobs within the windows defendants provided.
Further, they could perform custom work.
Plaintiffs could also
hire helpers to perform more efficiently, but defendants began to
require helpers to hold the same certifications as the
installers, which reduced the efficacy of this practice.28
Plaintiffs were, however, limited in their ability to drum up
their own business given defendants’ control over their job
assignments and over advertising.29
Further, there is evidence
that plaintiffs had limited control over their costs, and could
not control the amount of deductions that defendants took out of
their pay, or how much they were paid for jobs performed.
Analysis of the skill and initiative factor does not alter the
Court’s conclusion that summary judgment on this record is not
iv. Permanency of the Relationship and Relative Duration
As noted, courts analyze the permanency of the relationship
and the relative investments of the parties in determining
independent contractor status.
Given the disputed issues of fact
Humphrey Deposition at 124-5.
R. Doc 114-2 at 77. DirecTV gave plaintiffs decals to
put on their vehicles. Lang Deposition at 44-5. Plaintiffs do
not contend that advertising was a cost of doing business.
Humphrey Deposition at 62; Lang Deposition at 47-8; Tucker
Deposition at 69-71.
on control and on plaintiffs’ ability to influence their profits
and losses, regardless of the outcome of the analysis of these
other factors, the Court is still unable to accurately determine
plaintiffs’ status on this summary judgment record.
On this record, defendants’ motion for summary judgment on
plaintiffs’ FLSA claims is DENIED.
Louisiana Wage Payment Act
Plaintiffs also bring claims under the Louisiana Wage
Payment Act, La. R.S. § 23:631, et seq.
Under that statute,
employers owe certain duties to “any laborer or other employee.”
Independent contractors are not covered by the statute.
The Management Co., 476 So.2d 567, 568 (La. App. 3 Cir. 1985).
In determining whether a worker is an employee for purposes of
that statute, Louisiana courts consider the following nonexclusive factors:
(1) whether there is a valid contract between the
parties; (2) whether the work being done is of an
independent nature such that the contractor may employ
nonexclusive means in accomplishing it; (3) whether the
contract calls for specific piecework as a unit to be
done according to the independent contractor’s own
methods, without being subject to the control and
direction of the principal, except as to the result of
the services to be rendered; (4) whether there is a
specific price for the overall undertaking agreed upon;
and (5) whether the duration of the work is for a
specific time and not subject to termination or
discontinuance at the will of either side without a
corresponding liability for its breach.
Mendoza v. Essential Quality Const., Inc., 691 F.Supp.2d 680, 686
(E.D. La. 2010) (citing Gordon v. Hurlston, 854 So.2d 469, 472
(La. App. 3 Cir. 2003)).
The crux of the issue is the degree of
control that the contract affords the purported employer over the
Mack v. CDI Contractors, Inc., 757 So.2d 93, 97 (La.
App. 5 Cir. 2000); Howlett v. Halpern, 559 So.2d 21, 23 (La. App.
4 Cir. 1990).
Under Louisiana law, “[i]t is not the actual
supervision or control which is actually exercised by the
employer that is significant, but whether, from the nature of the
relationship, the right to do so exists.”
Mendoza, 691 F.Supp.2d
at 686 (quoting Gordon, 854 So.2d at 472); see also Hickman v.
Southern Pac. Transport Co., 262 So.2d 385, 391 (La. 1972);
Hughes v. Goodreau, 836 So.2d 649, 656 (La. App. 1 Cir. 2002);
Mack, 757 So.2d at 97.30
The same disputed issues of fact regarding defendants’
control over plaintiffs for purposes of the FLSA also exist with
respect to plaintiffs’ claims under the LWPA and prevent the
Court from granting summary judgment.
Therefore the Court DENIES
defendants’ motion for summary judgment on plaintiffs’ LWPA
By contrast, in determining employment status under the
FLSA, “it is not what the [parties] could have done that counts,
but as a matter of economic reality what they actually do that is
dispositive.” Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042,
1047 (5th Cir. 1987) (emphasis in original); see also Hopkins v.
Cornerstone America, 545 F.3d 338, 345 (5th Cir. 2008) (same).
For the foregoing reasons, defendants’ motion for partial
summary judgment is DENIED.
New Orleans, Louisiana, this 12th day of July, 2011.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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