Gremillion v. Cox Communications, Inc. et al
ORDER AND REASONS. It is ORDERED that Cox Communications Louisiana LLC's 70 Motion for Summary Judgment is GRANTED and Cox is dismissed with prejudice. Signed by Magistrate Judge Janis van Meerveld. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SCOTT MR. GREMILLION
COX COMMUNICATIONS LOUISIANA
CIVIL ACTION NO. 16-9849
JANIS VAN MEERVELD
ORDER AND REASONS
Before the Court is the Motion for Summary Judgment filed by defendant Cox
Communications Louisiana LLC (“Cox”). (Rec. Doc. 70). For the following reasons, IT IS
ORDERED that the Motion for Summary Judgment is GRANTED.
This lawsuit is a putative collective action under the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. § 201, et seq., and a putative class action under Louisiana’s wage payment
laws, La. Rev. Stat. § 23:631, et seq. 1 Plaintiff Scott Gremillion alleges that Cox and defendant
Grayco Communications, L.P. (“Grayco”) are liable as his employers for failing to pay him and
other installers and technicians for work in excess of 40 hours in a work week “through the guise
of the pay-per-point/unilateral charge-back scheme.” (Rec. Doc. 1, ¶13). The parties consented to
proceed before the undersigned magistrate judge and on December 8, 2016, the District Judge
ordered the matter be referred to the undersigned pursuant to 28 U.S.C. § 636(c). (Rec. Doc. 61).
The parties also agreed to resolve issues related to the alleged liability of Cox as a joint
employer with Grayco first, with Mr. Gremillion’s motion for conditional class certification to
follow thereafter. In the present Motion for Summary Judgment, Cox maintains that as a matter of
The District Court dismissed Mr. Gremillion’s claims under La. Rev. Stat. § 23:631 and § 23:632, but held that he
had stated a claim under § 23:635. (Rec. Doc. 56).
law, it is not Mr. Gremillion’s employer under the FLSA and it must be dismissed from this
lawsuit. (Rec. Doc. 70-1). Mr. Gremillion opposes. (Rec. Doc. 75).
a. Grayco-Cox Relationship
Cox provides cable, telephone and Internet services to residences and businesses in
Louisiana and elsewhere in the United States. (Cox Undisputed Facts, ¶ 1, Rec. Doc. 70-2). To
access these services, Cox’s customers buy cable equipment from Cox. Id. ¶ 2. Cox contracts with
third parties like Grayco to provide installation and maintenance services to Cox’s customers. Id.
¶ 4. Grayco began providing these services to Cox in July 2014. Id. ¶ 5. Cox and Grayco’s
relationship for the relevant time period is governed by a June 1, 2015, Field Services Agreement
(“FSA”) between them. Id. ¶¶ 21-23. Pursuant to the FSA, Grayco is an “independent contractor”
and none of Grayco’s employees or representatives is to be deemed a Cox employee, agent or
representative. (FSA, ¶ 9, Rec. Doc. 70-6).
Cox has presented uncontested declarations asserting that Grayco had been operating
independently for 15 years before it began servicing Cox customers, that Cox and Grayco maintain
separate offices, that Cox does not have an ownership or financial interest in Grayco, and that
Grayco does not have an ownership or financial interest in Cox. Id. ¶6-12. Further, Cox does not
supply or share managers or employees with Grayco. Id. ¶ 11. Instead, Grayco employs managers
and supervisory personnel to oversee Grayco’s installation technicians. Id. ¶ 15. Mr. Gremillion
concedes that Grayco does business with other companies besides Cox, but points out that in
Louisiana, Grayco solely provides services to Cox. (Mr. Gremillion Opp., at 4, Rec. Doc. 75).
b. Hiring and Firing
The FSA requires that Grayco “maintain adequate, qualified, experienced and professionalappearing” personnel. (FSA, ¶ 4.1, Rec. Doc. 70-6). The FSA also requires that a Grayco
technician must pass a criminal background check and a drug test before performing any work for
Cox customers. (Cox Undisputed Facts, ¶ 39, Rec. Doc. 70-2). Cox says this policy ensures that
its customers are safe and not subject to individuals who have committed crimes or use illegal
drugs. Id. The FSA requires annual background checks and authorizes Cox to request an additional
background check. (FSA, ¶ 4.1, Rec. Doc. 70-6). Pursuant to the FSA, if a person does not meet
the background check requirements, Grayco would not continue to allow that person to perform
services for Cox customers. Id.
It is undisputed that Cox did not hire Mr. Gremillion. (Cox Undisputed Facts, ¶ 55, Rec.
Doc. 70-2). Mr. Gremillion submitted an application to Grayco, not Cox. Id. ¶ 56. When Mr.
Gremillion applied, Grayco processed a background check as required by the FSA and submitted
the results to Cox. Id. ¶¶ 59-60. Cox then sent Grayco a technician badge for Mr. Gremillion and
a technician identification number. Id. ¶ 61. As Grayco’s corporate representative explained in his
deposition, “[t]he hiring of an individual is totally within our discretion, so [Cox] shouldn’t have
to approve us hiring someone.” (Williams Depo., at 107, Rec. Doc. 70-6). Once Grayco decides
to hire a technician, a clean background check is required “[t]o obtain a badge,” which allows the
technician to enter customers’ homes. Id. It is also undisputed that when Mr. Gremillion resigned,
he notified Grayco and not Cox. (Cox Undisputed Facts, ¶ 117, Rec. Doc. 70-2).
c. Supervision and Control
When a Cox customer requests installation and maintenance services, the customer
contacts Cox and selects a two hour window of time for the service to take place. (Cox Undisputed
Fact, ¶ 26, Rec. Doc. 70-2). This request creates a “work order” in Cox’s automated billing system.
¶ 27. Cox has a separate computer application that automatically generates bundles of work
orders and assigns each bundle to a particular Grayco technician number. Id. ¶ 28-29. Cox explains
that the Grayco technician numbers serve as placeholders and that Grayco can assign the work
orders to technicians in any manner it sees fit and Cox learns the technician number for the
individual who performed the work order when the work order is completed and recorded in Cox’s
automated billing system. Id. ¶¶ 31-32. Mr. Gremillion does not dispute this explanation.
However, he points out that the FSA prohibits Grayco from using a technician number assigned to
one personnel for another personnel without Cox’s permission. (FSA, ¶ 2.1, Rec. Doc. 70-6). Mr.
Gremillion also points to language in the FSA that Cox assigns work orders “on an ‘as needed’
basis in Cox’s sole discretion.” Id. ¶ 2.1. Mr. Gremillion further notes that the FSA requires
Grayco to assign work to its personnel “in a manner reasonably calculated to not adversely affect
the quality of the work and to not result in high first call resolution leading to chargebacks.” Id. ¶
Cox conducts random quality control checks and requests that its customers complete
surveys. (Cox Undisputed Facts, ¶ 34-35, Rec. Doc. 70-2). Mr. Gremillion does not dispute the
evidence presented by Cox that it only discusses customer complaints, surveys and quality control
checks with Grayco management and never with Grayco’s technicians. Id. ¶¶36-37.
Mr. Gremillion admitted in deposition that he was supervised by Grayco manager Louis
Hall and that he was not supervised by anyone at Cox. Id. ¶¶ 97-98. Mr. Gremillion testified that
if he was sick or needed to leave work early or arrive late, he checked in with Mr. Hall. Id. ¶100.
He testified that he did not contact Cox if he had issues with an installation and only contacted
Cox if Grayco’s computer system was shut down or if he needed Cox to turn on its cable service
to a specific location so he could determine if the cable box had been properly installed. Id. ¶¶
101-103. Mr. Gremillion could not recall the name of anyone that worked at Cox. Id. ¶ 104.
The FSA requires that Grayco train all technicians on safety, quality and legal requirements
of the agreement, including training on Cox’s guidelines and requirements. (FSA, ¶ 2.3, Rec. Doc.
70-6). Mr. Gremillion does not dispute that he had prior training as a cable installer and that he did
not receive any training from Cox (or Grayco). Id. ¶¶ 113-115.
“For safety reasons,” the FSA requires that technicians “at all times represent and identify
themselves as independent contractors of Cox and follow Cox’s branding and identification
guidelines and procedures for independent contractors.” Id. ¶ 2.14. The technicians wear badges
and drive vehicles stating “Authorized Vendor for Cox Communications.” (Cox Undisputed Facts,
¶ 38, Rec. Doc. 70-2).
Cox does not supply Grayco technicians with tools or supplies to perform their work. Id.
¶ 40. It only supplies Grayco with the Cox equipment that is purchased or leased by Cox’s
customers. Id. ¶ 41.
Mr. Gremillion received his paychecks from Grayco, not Cox. (Cox Undisputed Facts, ¶
73, Rec. Doc. 70-2). Grayco, not Cox, issued Mr. Gremillion a Form 1099. Id. ¶ 74. Mr.
Gremillion signed a Wage Deduction Authorization form allowing Grayco to deduct from his
paycheck and it is undisputed that Grayco, not Cox, deducted from Mr. Gremillion’s paychecks.
Id. ¶75-76. Mr. Gremillion did not submit any evidence to contradict Grayco’s deposition
testimony that Cox had no involvement or input in how Grayco paid Mr. Gremillion or the amount
Grayco deducted from his paychecks. Id. ¶ 78. Nor does Mr. Gremillion dispute that Cox had no
knowledge of how many hours Mr. Gremillion worked. Id. ¶ 68.
Mr. Gremillion notes that the FSA authorizes Cox to withhold payment from Grayco to
repair damage connected to the services performed or related to any failure of Grayco to complete
or carry out work in a timely manner. (FSA, ¶3.3, Rec. Doc. 70-6). Further, Cox’s payments are
contingent on Grayco’s “full, satisfactory and timely Completion of the Services.” Id. ¶2.
However, Mr. Gremillion has not directed the Court to any evidence that Cox could withhold or
deduct payment from the Grayco technicians or direct Grayco to do so. Indeed, Grayco’s corporate
representative testified that if Cox issued charge backs to Grayco for failed quality control
inspections, Grayco did not necessarily deduct that amount from its technicians’ pay, if it deducted
from them at all. Id. ¶ 79.
e. Employment Records
Cox’s corporate representative testified that Cox does not maintain employment records
for Mr. Gremillion or any other Grayco technicians. Id. ¶121. The only information maintained
by Cox related to Mr. Gremillion was the information on his badge (his name and technician
number). Id. ¶ 127.
Law and Analysis
1. Summary Judgment Standard
Summary Judgment under Federal Rule of Civil Procedure 56 must be granted where
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. Proc. 56. The movant has the initial burden of “showing the absence
of a genuine issue as to any material fact.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).
The respondent must then “produce evidence or designate specific facts showing the existence of
a genuine issue for trial.” Engstrom v. First Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.
1995). Evidence that is “merely colorable” or “is not significantly probative” is not sufficient to
defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“An issue is material if its resolution could affect the outcome of the action.” Daniels v.
City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001). Thus, “there is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson, 477 U.S. at 249. Although this Court must “resolve factual controversies in
favor of the nonmoving party,” it must only do so “where there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc.,
713 F.3d 824, 830 (5th Cir. 2013) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540
(5th Cir. 2005). The Court must not, “in the absence of any proof, assume that the nonmoving
party could or would prove the necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
Summary judgment is also appropriate if the party opposing the motion fails to establish
an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
2. Joint Employer Liability under FLSA
Under the Fair Labor Standards Act (“FLSA”), employers must pay their employees a
minimum wage. 29 U.S.C. § 206(a). The FLSA defines “employer” as “any person acting directly
or indirectly in the interest of an employer in relation to an employee.” Id. § 203(d). “The Fifth
Circuit uses the ‘economic reality’ test to evaluate whether there is an employer/employee
relationship.” Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012). “In joint employment contexts,
each employer must meet the economic reality test.” Orozco v. Plackis, 757 F.3d 445, 448 (5th
Cir. 2014). Thus, as to each alleged employer, “the court considers whether the alleged employer:
“(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee
work schedules or conditions of employment, (3) determined the rate and method of payment, and
(4) maintained employment records.” Gray, 673 F.3d at 355. Not each element must be established
in every case. Orozco, 757 F.3d at 448. “Moreover, ‘[t]he remedial purposes of the FLSA require
the courts to define ‘employer’ more broadly than the term would be interpreted in traditional
common law applications.’” Id. (quoting McLaughlin v. Seafood, Inc., 867 F.2d 875, 877 (5th
Courts in other districts have considered facts similar to those presented here, where a
technician seeks to hold a communications company liable under the FLSA as a joint employer.
As here, the communications company contracted with an installation company to install its
equipment and the technician worked as an employee or independent contractor of the installation
company. In all but one of the cases the parties have presented to the Court, the district court found
the communication company was not liable as a joint employer. The case cites by Cox in favor of
its motion for summary judgment present facts similar to the present matter: the communication
companies had no direct control or supervision of any part of the employment of the technicians
with only minimal quality and safety measures such as background checks, customer service
surveys, identification badges, labeled vehicles, a contract between the installer and
communication company establishing certain requirements for the performance of services, work
initially distributed by the communication company but subject to redistribution by the installer
without consent of the communication company, and an ability of the communication company to
de-authorize a technician for poor quality work. 2 See Thornton v. Charter Commc’ns, LLC, No.
Here the parties have not submitted any evidence indicating that Cox can de-authorize a technician for poor quality
work. Mr. Gremillion only points to Cox’s requirement that a technician who does not pass a background check cannot
continue to enter customers’ homes. It appears his argument hinges on Cox’s requirement that Grayco personnel be
subjected to annual background checks and that Grayco submit its personnel to an additional background check if
requested by Cox. (FSA ¶ 4.1, Rec. Doc. 70-6).
4:12CV479 SNLJ, 2014 WL 4794320, at *16 (E.D. Mo. Sept. 25, 2014); Valdez v. Cox Commc’ns
Las Vegas, Inc., No. 2:09-CV-01797-PMP, 2012 WL 1203726, at *6 (D. Nev. Apr. 11, 2012);
Zampos v. W & E Commc’ns, Inc., 970 F. Supp. 2d 794, 805–06 (N.D. Ill. 2013); Jean-Louis v.
Metro. Cable Commc’ns, Inc., 838 F. Supp. 2d 111, 137–38 (S.D.N.Y. 2011); Jacobson v.
Comcast Corp., 740 F. Supp. 2d 683, 693–94 (D. Md. 2010).
The only communication company-technician case relied on by Mr. Gremillion differs
significantly from the present because the communication company exercised far more control
than Cox does here. Perez v. Lantern Light Corp., No. C12-1406, 2015 WL 3451268, at *17 (May
29, 2015 W.D. Wash.). For example, in Perez, a case filed by the Department of Labor involving
a bankrupt installation company, the installation company was prohibited by contract from
engaging with other communication companies, giving greater significance to a de-authorization;
the installer could not reassign work orders without at least tacit approval by the communication
company; and the communication company monitored technician arrivals and departures,
approved and denied time off requests, at one point required technicians to work ten-hour shifts,
and maintained a significant amount of employee related documentation. Id.
a. Hiring and Firing
Cox has no authority to hire or fire Grayco technicians. Although some of Cox’s
contractual requirements bear on Grayco’s hiring practices, these specifications do not amount to
direct or even indirect power or control over hiring and firing. For example, Cox requires that
Grayco maintain adequate, qualified, experienced and professional-appearing personnel and that
technicians must pass a background check before Cox will permit them to enter a Cox customer
home. However, these specifications amount to minimal quality controls and safety measures.
They do not indicate that Cox dictates which applicants are hired or how many. Indeed, Grayco’s
corporate representative testified that Grayco has total discretion over hiring decisions and that
Cox does not dictate who Grayco can hire. This evidence is uncontradicted. And there is no dispute
that Mr. Gremillion submitted his application to Grayco and that Cox did not hire him, Grayco
did. Simply requiring a background check has not been found sufficient to conclude that a
communication company possesses authority to hire and fire. E.g., Thornton, 2014 WL 4794320,
at *2, 14 (finding the communication company was not a joint employer where the technicians
applied and interviewed with the install company, although the communication company preapproved technicians and required background checks); Jean-Louis, 838 F. Supp. 2d at 123-24
(finding the communication company was not a joint employer where the install company
interviewed and hired technicians, although the communication company required a background
The Court is not persuaded by Mr. Gremillion’s argument that Cox can “effectively fire a
Grayco installer by requiring Grayco to de-authorize anyone who has ‘not successfully met all the
Background Checks.’” (Rec. Doc. 75, at 13). The Grayco-Cox contract is not exclusive. Although
Grayco does not conduct installation services for other clients in Louisiana, it has work in other
states. A technician de-authorized by Cox could be employed by Grayco elsewhere or could
perform duties that do not require entry into customers’ homes. Importantly, because the contract
with Cox is not exclusive, Grayco is not precluded from obtaining other installation work in
Louisiana. Other courts have determined that the ability to de-authorize a technician does not, on
its own, amount to the authority to fire. Thornton, 2014 WL 4794320, at *14 (finding no joint
employer relationship although the communication company could de-authorize a technician);
Jean-Louis, 838 F. Supp. 2d at 125 (same); but see Perez, 2015 WL 3451268, at *17 (finding a
joint employer relationship where the communication company could de-authorize a technician
pursuant to an exclusive contract with the install company). As the Thornton court explained, the
ability to de-authorize a technician “was to ensure customer safety and quality of service” and did
“not evidence a joint employer relationship.” 2014 WL 4794320, at *14; see Zampos, (“To the
extent [the communication company] plays a role in the hiring and firing process, it is only in the
context of quality control, safety and security of [its] customers . . . .”).
In addition to arguing that the ability to de-authorize technicians who fail to meet the
background check requirements of subpart 4.1 of the FSA vests Cox with effective authority to
fire a technician, Mr. Gremillion argues that the FSA “goes on to vest Cox with ultimate authority
to ‘terminate this Agreement without Notice to [Grayco] and without further obligation to
[Grayco].’ This unilateral and ultimate right is the best and most compelling evidence of the
authority wielded by Cox over Grayco’s employment decisions.” (Rec. Doc. 75, at 13). The fact
that Mr. Gremillion finds this the “best and most compelling evidence of the authority wielded by
Cox over Grayco’s employment decisions” highlights just how weak Mr. Gremillion’s case is for
joint employer status by Cox. Mr. Gremillion’s brief fails to develop a connection between this
FSA provision and any ability of Cox to control Grayco’s employment decisions. Surely Mr.
Gremillion is not arguing that all entities that contract for the services of another entity but reserve
the right to cancel the agreement without notice, an extremely common contractual provision, thus
have the ability to wield authority over the employees of the entity performing the work? He cannot
possibly contend that all such contracts vest the party requesting services with sufficient authority
to render them joint employers as a matter of law.
Here, Cox’s requirement that technicians entering its customers’ homes pass its
background check and that Grayco maintain experienced and professional-appearing personnel
does not give Cox the authority to hire and fire. These specifications amount to minimal safety and
quality measures. Accordingly, this factor weighs against finding a joint employment relationship.
b. Supervision and Control
Cox does not supervise or control the work schedules or conditions of employment of
Grayco technicians. Although Cox’s computer system allocates work orders to technician
numbers, it is undisputed that Grayco can unbundle and reassign the work orders as it sees fit.
Grayco can do so without discussing with Cox or obtaining Cox’s consent. Mr. Gremillion admits
that if he wanted to alter his work schedule because he was sick or needed to leave work early, he
would discuss these matters with his Grayco supervisor. Indeed, Mr. Gremillion admits that he
was not supervised by any Cox employee and could not recall the names of any Cox employees
he might have run into incidentally. Mr. Gremillion only contacted Cox to turn on cable service or
when Grayco’s computer system was down.
Mr. Gremillion points to language in the FSA providing that Cox can assign work at its
discretion, but this does not affect the Court’s analysis above. This provision appears in the context
of a paragraph making clear that Grayco is not entitled to a minimum amount of work from Cox.
It has no bearing on which technician is assigned a particular work order. Moreover, Grayco
remains able to re-assign work as it sees fit. Mr. Gremillion also notes that the FSA prohibits reuse of a technician number. Mr. Gremillion seems to interpret this language as preventing Grayco
from re-assigning work orders, but the language clearly prevents Grayco from using one number
for two technicians or using a terminated technician’s number for a new hire. This does not indicate
any control or supervision by Cox of the work schedules of Grayco’s technicians. Mr. Gremillion’s
strained reading of the contract does not create a fact issue. Mr. Gremillion also notes that FSA
requires that Grayco train its personnel on all safety, quality and legal requirements, including Cox
guidelines. This provision makes clear that it is Grayco, and not Cox, that supervises and trains its
technicians. It does not indicate any control by Cox over the process, even if Cox requires that its
equipment be installed in certain ways.
Further, although Cox requires that Grayco technicians wear clothing and drive vehicles
identifying them as Cox approved, this is merely a safety measure to ensure that Cox customers
know that the appropriate person is entering their home. Cox’s random quality control checks and
customer surveys result in feedback to Grayco, not directly to the technicians. There is no
suggestion by Mr. Gremillion that these quality control measures amount to supervision. As the
Jacobson court explained, even a high degree of supervision or control may not trigger a joint
employer finding where the purpose of the control is to maintain customer safety, whereas this
factor might indicate a joint employer relationship where the purpose of the control is day-to-day
management. Compare Jacobson, 740 F. Supp. 2d at 691 (finding no joint employer relationship
where the technicians wore communication company badges and the communication company
monitored the location of technicians, specified the time they were to arrive at appointments, and
regularly evaluated completed work, but the communication company had no role in developing
human resources policies and did not dictate the technicians’ working conditions or determine the
conditions upon which they would receive payment) with Perez, 2015 WL 3451268 (finding a
joint employer relationship where the technicians wore communication company badges and the
communication company monitored arrival and departure time, at one point required ten-hour
shifts, and approved and denied time off requests); see also Smilie v. Comcast Corp., No. 07-CV3231, 2009 WL 9139890, at *4 (N.D. Ill. Feb. 25, 2009) (holding that the communication
company’s requirement that the technicians meet its quality standards and wear shirts identifying
them with the communication company did not establish control); Herman v. Mid-Atl. Installation
Servs., Inc., 164 F. Supp. 2d 667, 672–73 (D. Md. 2000), aff'd sub nom. Chao v. Mid-Atl.
Installation Servs., Inc., 16 F. App'x 104 (4th Cir. 2001) (holding that the cable company’s
requirement that technicians meet the cable company’s installation specifications, pass
background checks and wear ID badges and uniforms identifying them with the cable company
were not sufficient to make technicians employees of the cable company); Santelices v. Cable
Wiring, 147 F. Supp. 2d 1313, 1327–28 (S.D. Fla. 2001) (holding that the cable company was not
a joint employer although the company required installers be neatly dressed and polite and required
work be done according to its specifications, but there was no evidence that the cable company
checked the installers’ work on a daily basis, gave work commands, or otherwise intervened in the
Here, the purpose of identifying Cox on the technician’s badge and vehicle is to ensure
customer safety and the purpose of the surveys and quality control checks is to ensure satisfaction
of Cox customers. These examples do not amount to day to day supervision or control of a Grayco
technician’s schedule or working conditions. This factor weighs against a finding that Cox is Mr.
There is no dispute that Mr. Gremillion received his paychecks and tax forms from Grayco.
It is undisputed that Cox had no involvement in how Grayco paid Mr. Gremillion or the amount,
if any, that was deducted from his paychecks. Mr. Gremillion argues that the FSA’s requirement
that Cox pay Grayco upon the full and timely completion of the services indicates Cox’s control
over the technician’s pay. Mr. Gremillion also points to the FSA provision authorizing Cox to
withhold payment to Grayco to repair damage or related to failure of Grayco to carry out services.
Mr. Gremillion misses the point. While Cox may have rules determining when and how it pays
Grayco, there is no indication that Cox has any rules or influence over how Grayco pays its
technicians. There is no evidence that Grayco’s payments to its technicians were contingent on
receiving payment from Cox. Indeed, it is uncontroverted that if Cox reduced payments to Grayco,
Grayco did not necessarily deduct that amount (or any amount) from the technician’s paycheck.
See Herman, 164 F. Supp. 2d at 672–73 (holding that the cable company’s ability to deduct from
payments to the install company did not show control over technicians where there was no
evidence that the install company “generally docked pay as a result of [the technician’s]
mistakes”). This factor weighs against a finding of joint employer liability.
d. Employment Records
It is uncontested that the only records Cox maintains are related to the technician badges.
Mr. Gremillion concedes that there is no evidence Cox maintained any records of his employment.
(Rec. Doc. 75, at 18). This factor weighs against a finding that Cox is a joint employer.
e. Conclusion on FLSA Liability
The undisputed facts lead to no other conclusion but that Cox is not Mr. Gremillion’s
employer under the FLSA. Cox’s background check requirement, distribution of work orders and
customer satisfaction surveys reflect no more than a legitimate contractor relationship. Cox’s
specifications merely reflect its concern for the services being provided to its customers. Cox’s
involvement in hiring, firing, supervision, scheduling, and payment of technicians is minimal and
indirect at best. Mr. Gremillion disingenuously distorts and exaggerates the implications of
boilerplate provisions of the FSA to attempt to prove a case of joint employer status, with no
evidence of actual control by Cox as a practical matter. His reliance on Perez is similarly ill-fated
because Perez is so easily distinguished. Instead, Cox’s relationship with Grayco, and its extremely
limited role in the work lives of Grayco’s employees, is obviously much more akin to the cable
and communications companies discussed in Jacobson, Thornton, Valdez, Zampos, Jean-Louis,
Herman, Smilie, Santilices, and others. The law governing joint employer status is well developed
in this industry. There is simply no doubt that Cox was not Mr. Gremillion’s joint employer and
there are no material issues of fact to be developed at trial. The court finds that summary judgment
in Cox’s favor is appropriate: Cox is not Mr. Gremillion’s employer under the FLSA.
3. Liability as Employer under Louisiana Law
Cox argues that Mr. Gremillion’s state law claims must also be dismissed because Cox is
not Mr. Gremillion’s employer. Mr. Gremillion’s sole remaining claim under the Louisiana Wage
Payment Act (“LWPA”) is under the provision prohibiting a person from “assess[ing] any fines
against his employees or deduct[ing] any sum as fines from their wages.” La. Rev. Stat. 23:635.
Thus, Cox points out, only an employer can be liable. Louisiana courts consider a variety of factors
in determining whether an individual is an employee under the Louisiana Wage Payment Act:
(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). As Cox
points out, the principal factor is whether the purported employer had the ability to control the
work. See Hulbert v. Democratic State Cent. Comm. of Louisiana, 2010-1910 (La. App. 1 Cir.
6/10/11), 68 So. 3d 667, 670, writ denied, 2011-1520 (La. 10/7/11), 71 So. 3d 316. Cox argues
that for the reasons it is not Mr. Gremillion’s employer under the FLSA, it is not Mr. Gremillion’s
employer under the LWPA. The Court agrees. The factors above related to hiring, firing,
supervision, control of schedule and pay all result in the conclusion that Cox does not have the
ability to control Mr. Gremillion’s work. Cox is also entitled to summary judgment on Mr.
Gremillion’s state law claims because Cox is not Mr. Gremillion’s employer.
For the foregoing reasons, Cox’s Motion for Summary Judgment is GRANTED and Cox
is hereby dismissed with prejudice.
New Orleans, Louisiana, this 3rd day of April, 2017.
Janis van Meerveld
United States Magistrate Judge
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