Deras et al v. Verizon, Inc. et al

Filing 45

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/30/10. (sat, Chambers)

Deras et al v. Verizon, Inc. et al

Doc. 45

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND WILMER DERAS, et al. v. VERIZON MARYLAND, INC., et al. : : : : : Civil Action No. DKC 09-0791

MEMORANDUM OPINION Presently pending and ready for resolution in this action involving alleged violations of the Fair Labor Standards Act and related state law claims is a motion to dismiss filed by

Defendant Verizon Maryland, Inc.

(Paper 32).

The issues are

fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that

follow, the motion will be granted in part and denied in part. I. Background The following facts are set forth in Plaintiffs' amended complaint. (Paper 24). Plaintiffs Wilmer Danilo Deras, Julio

Garcia, Jose Candido Mejia, Oscar Deras, Naun Fuentes, Jesus Miranda, and Manuel Ramirez are laborers who installed

underground fiber optic cables and performed related tasks on behalf of Defendants LLC, ("Mr. Verizon Maryland, Inc. ("Verizon"), Moreno Rivera,

Cablecom, Maldonado

Utilities

Maldonado,

Inc.,

Armando

Maldonado"),

Marissa

Rodriguez

Dockets.Justia.com

individually

and

d/b/a

Communication

Moreno

Co.,

and

unknown

contractors of Verizon and/or Cablecom at various times from 2005 to 2007. of Plaintiffs were hired by Mr. Maldonado, who "held "an or

officer

Defendant

Utilities

Maldonado"

implemented individual control over [its] day-to-day activities" (id. at ¶ 11), to perform this work at specified hourly rates. Each plaintiff accepted Mr. Maldonado's offer, thereby allegedly "forming an employment contract." (Id. at ¶¶ 17-23).

Prior to beginning work, Plaintiffs were required to attend "one or more trainings at a Verizon facility" regarding "OSHArelated regulations" and instructing them as to "how to perform their tasks related to installing cable and pipes." 31). (Id. at ¶

At the conclusion of the training session, Verizon tested knowledge completion, of the issued training each material Plaintiff and, a upon

Plaintiffs' successful

"photo-

identification card labeled as a `Safe Dig Certification Card' with instructions to call the Cablecom customer service hotline with any questions." (Id. at ¶ 32).

On a typical work day, Plaintiff Jesus Miranda, driving "Defendants' truck," picked-up the other laborers at their homes and transported them to "Defendant Maldonado's shop," arriving by 6:00 a.m. tools and (Id. at ¶¶ 25, 28). equipment into Once there, Plaintiffs loaded and were divided into

trucks

workgroups, given assignments, and dispatched to a worksite in 2

Maryland

or

Virginia.

Plaintiff

Wilmer

Danilo

Deras

was

responsible for driving "Defendants' vehicles" to the offices of Cablecom, in Laurel, Maryland, where he "pick[ed] up materials . . . and deliver[ed] them to the worksites." (Id. at ¶ 29).

These materials included cables and boxes marked with the name "Verizon." At the worksites, Plaintiffs dug trenches, installed

piping and fiber optic cable, and filled the trenches, planting sod, grass seed, and patching cement over the newly-laid

underground cable.

Mr. Maldonado was typically present at the Supervisors "monitored

work site each day and gave orders to Plaintiffs. of Verizon and/or Cablecom were also present and

Plaintiffs' work, g[a]ve orders to Plaintiffs if [Mr.] Maldonado was not present, and responded to any issues related to

Plaintiffs' work as necessary, such as if there was an emergency or a gas or electric line was inadvertently cut." 30). (Id. at ¶

Plaintiffs worked until dark, at which point they were

driven back to "the shop," unloaded and secured the equipment, and were driven home by Mr. Miranda. (Id. at ¶ 35). They

typically worked twelve to sixteen hours per day, five or six days per week. Mr. Rivera, Maldonado whose and his wife, Defendant Marissa Rodriguez

responsibilities Plaintiffs'

included pay for

signing their

Plaintiffs' week of

paychecks,

withheld

first

work, informing them that these wages "would be held `in the 3

hole.'"

(Id. at ¶ 37).

Thereafter, Plaintiffs were typically

paid for ten hours of work per day at their regular wage for each hour, despite the fact that they routinely worked more hours and over forty per week. that On numerous did occasions, pay Mr.

Maldonado

informed

Plaintiffs

"he

not

overtime

compensation for work in excess of forty hours per week," and Plaintiffs never received pay at the overtime rate. 41). federal Moreover, payroll Mr. taxes Maldonado from allegedly "deducted wages and (Id. at ¶ state failed and to

Plaintiffs'

forward the taxes to the proper authorities." On or about December 21, 2007, "Plaintiffs' had

(Id. at ¶ 42). employment failed to by pay

Defendants

terminated

because

Defendants

Plaintiffs wages that were justly due and owing." 39).

(Id. at ¶

On or about December 18, 2008, Plaintiffs commenced this action in the Circuit Court for Montgomery County, Maryland, on behalf of themselves and others similarly situated, alleging, as to all defendants, violations of the Fair Labor Standards Act, the Maryland Wage and Hour Law, the Maryland Wage Payment and Collection (Paper 2).1 Law, breach of contract, and unjust enrichment.

On March 30, 2009, Cablecom removed the case to this

The original complaint named "Verizon, Inc.," rather than "Verizon Maryland, Inc.," as a defendant. 4

1

court on the basis of federal question jurisdiction (paper 1) and, shortly thereafter, answered the complaint (paper 13). On October 19, 2009, there having been no activity in the case for over six months, the court ordered Plaintiffs to file a status report. that been Plaintiffs Utilities served filed a report Mr. one week later Ms. to

indicating Rivera respond. had

Maldonado, with the

Maldonado, but

and

complaint,

failed

(Paper 18).

The report further stated that Verizon

had not yet been served and that Plaintiffs suspected "Verizon Maryland, Inc.," rather than "Verizon, Inc.," was the proper name of the corporate defendant. The following day, the court

ordered Plaintiffs to move for entry of default against the nonresponsive defendants or provide a report within thirty days as to why such motion would be inappropriate. (Paper 19). The

court further directed Plaintiffs to show cause within fourteen days as to why the complaint should not be dismissed without prejudice as to "Verizon, Inc.," pursuant to Fed.R.Civ.P. 4(m) and Local Rule 103.8. Plaintiffs responded by filing a motion

for leave to amend their complaint (paper 21) and a motion for entry 22). of default against the nonresponsive Plaintiffs defendants their (paper amended

Upon

obtaining

leave,

filed

complaint on December 1, 2009, which differed from the original only in that it substituted Defendant "Verizon Maryland, Inc.," for "Verizon, Inc." (Paper 24). 5 On February 18, 2010, Cablecom

answered the amended complaint (paper 34) and, on the same date, Verizon filed the pending motion to dismiss pursuant to

Fed.R.Civ.P. 12(b)(6). clerk entered and default Ms.

(Paper 32). against Rivera,

On February 23, 2010, the Maldonado, Inc., Moreno Mr. Co.

Utilities d/b/a

Maldonado, (Paper 37). II.

Communication

Plaintiffs have not yet moved for default judgment.

Standard of Review The purpose of a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(6) complaint. (4th Cir.

is

to

test

the

sufficiency

of

the

plaintiff's

See Edwards v. City of Goldsboro, 178 F.3d 231, 243 1999). Except in certain specified cases, a

plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled "Rule blanket to relief." still of

Fed.R.Civ.P. requires a

8(a)(2). `showing,'

Nevertheless, rather than a

8(a)(2)

assertion,

entitlement to relief." 544, 555 n. 3 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than "a

formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement."

Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted).

6

In its determination, the court must consider all well-pled allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court need not, however, accept

unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Iqbal, 129 S.Ct. at 1950, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). See also Francis v. Giacomelli, 588 F.3d 186, 193 (4th "[W]here the well-pleaded facts do not permit the

Cir. 2009).

court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not `show[n] . . . that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950

(quoting Fed.R.Civ.P. 8(a)(2)).

Thus, "[d]etermining whether a

complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

7

III. Analysis A. The Fair Labor Standards Act and Maryland Wage and Hour Law Claims contends that Plaintiffs' claims under the Fair

Verizon

Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq., and the Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. & Empl. §§ 3-401, et seq., must be dismissed because the facts alleged in the amended complaint "fail to show the possibility of any employment relationship" such that it could be held liable.

(Paper 32, Attach. 1, at 4).

Plaintiffs oppose the motion,

arguing that they have alleged facts sufficient to state a claim that Verizon, Cablecom, and Utilities Maldonado "operated as a joint and integrated employer," particularly in light of the remedial purpose of the FLSA. (Paper 42, at 13).

The FLSA mandates payment of a minimum wage for covered employees and payment at the overtime rate for each hour worked in excess of forty per week. See Schultz v. Capital Intern.

Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006) (citing 29 U.S.C. §§ 206(a)(1), 207(a)(1)). The MWHL similarly requires that

"employers pay the applicable minimum wage to their employees and, in [§§ 3-415 and 3-420 of the Labor and Employment

Article], that they pay an overtime wage of at least 1.5 times the usual hourly wage for each hour over 40 that the employee works during one workweek." Friolo v. Frankel, 373 Md. 501, 513

8

(2003).

Indeed, "[t]he requirements under the MWHL mirror those

of the federal law; as such, Plaintiffs' claim under the MWHL stands or falls on the success of their claim under the FLSA." Turner v. Human Genome Science, Inc., 292 F.Supp.2d 738, 744 (D.Md. 2003). To state a claim for failure to compensate under the FLSA, the plaintiff must allege facts that, if proven, would be

sufficient to establish the existence of an employer-employee relationship. See Benshoff v. City of Virginia Beach, 180 F.3d Because the purpose of the Act is

136, 140 (4th Cir. 1999).

"`remedial and humanitarian,'" it is "interpreted broadly so as to effectuate its goals" of "`protect[ing] the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others.'" Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 768 Quinteros v. (D.Md. 2008)

(quoting Benshoff, 180 F.3d at 140). its own definitions, to many comprehensive and

To that end, it "`contains enough to require its which

application

persons

working

relationships,

prior to this Act, were not deemed to fall within an employeremployee category.'" Rutherford Food Corp. v. McComb, 331 U.S.

722, 729 (1947) (quoting Walling v. Portland Terminal Co., 330 U.S. 148, 150-51 (1947)). person acting directly or The Act defines "employer" as "any indirectly in the interest of an An

employer in relation to an employee." 9

29 U.S.C. § 203(d).

"employee," in turn, is defined as "any individual employed by an employer," id. at § 203(e)(1), and "employ" means "to suffer or permit to work," id. at § 203(g). Consistent with these

broad definitions, "[t]he Supreme Court has instructed courts to construe the terms `employer' and `employee' expansively under the FLSA." See Quinteros, 532 F.Supp.2d at 768 (citing

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992); Rutherford Food Corp., 331 U.S. at 730)). "Separate persons or entities that share control over an individual worker may be deemed joint employers under the FLSA." Schultz, 466 F.3d at 305. Pursuant to 29 C.F.R. § 791.2(b):

Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled 10

by, or is under common control with the other employer. (footnotes omitted). In determining whether a joint employment relationship

exists, the court must "`take[] into account the real economic relationship between the employer who uses and benefits from the services of workers and the party that hires or assigns the workers to that employer,'" Schultz, 466 F.3d at 306 (quoting Ansoumana v. Gristede's Operating Corp., 255 F.Supp.2d 184, 193 (S.D.N.Y. 2003)), and base its decision upon the "`the

circumstances of the whole activity,'" id. (quoting Bonnette v. Calif. Health & Welfare Agency, 704 F.2d 1465, 1469-70 (9th Cir. 1983)). In Schultz, the Fourth Circuit reviewed the district

court's entry of judgment in favor of the defendant employers, after a bench trial, upon finding that the plaintiffs were

independent contractors, not employees.

The court vacated and

remanded, holding that that "[t]he undisputed facts compel the legal conclusion that [the defendant contractor and its

principal] were joint employers and that the [plaintiffs] were their employees for purposes of the FLSA." 301. Schultz, 466 F.3d at

The court reasoned that case "fit readily within the third of joint employment listed in the regulation," but

example

explained that where the examples do not directly apply, courts

11

should "consider factors such as those listed in Bonnette, 704 F.2d at 1469-70, and Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61, 71-72 (2d Cir. 2003), in determining whether there are joint employers within the meaning of the Act and the

regulation."

Schultz, 466 F.3d at 306, n. 2.

Here, in arguing that it cannot be considered Plaintiffs' joint employer, and thus cannot be liable under the FLSA or MHWL, Verizon urges the court to employ the four-factor test set forth in Bonnette, 704 F.2d at 1470, and consider whether it "(1) had 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." at 5). (Paper 32, Attach. 1,

The court need not do so, however, because, as in

Schultz, the instant case appears to fall squarely within the third example provided by the implementing regulation based on the facts alleged. While it is not explicitly stated in the complaint, the parties' Utilities motion papers and make clear to that Verizon its contracted fiber optic

Maldonado

Cablecom

install

cable throughout the region. Maldonado, a principal of

The complaint alleges that Mr. Utilities Maldonado, approached

Plaintiffs and offered to employ them to perform this labor at specific rates, and that, upon Plaintiffs' acceptance of his 12

offers, they became employees.2

The well-pled allegations assert

that Mr. Maldonado made the hiring decisions and established Plaintiffs' rates of pay; that Plaintiffs reported to work each day at his "shop," where they loaded equipment and received their assignments; that Mr. Maldonado routinely monitored and directed their work at the worksites; and that, along with Ms. Rivera, Mr. Maldonado issued (or withheld) their pay checks and addressed their complaints regarding the amounts and rates of pay they claimed were due. Thus, the "economic realities" of

the case clearly suggest that Mr. Maldonado and/or Utilities Maldonado were Plaintiffs' employers, as that term is defined by the FLSA. point, as According to Verizon, the analysis should end at this "Plaintiffs' factual allegations pertain to the

existence of an employment relationship between themselves and Defendant Maldonado," rather than Verizon. 1, at 8). There can be no doubt, however, that Plaintiffs' work (Paper 32, Attach.

"simultaneously benefit[ted]" Verizon as well. 791.2(b). Plaintiffs allege that they were

See 29 C.F.R. § hired by Mr.

Maldonado for the exclusive purpose of laying Verizon's fiber optic cable throughout the region, and that they were monitored, Neither party has claimed that Plaintiffs were independent contractors, rather than employees; indeed, Mr. Maldonado, Utilities Maldonado, and/or Ms. Rivera would appear to be the parties most likely to raise such a claim, but they are in default. 13
2

and occasionally directed, by Verizon supervisors onsite each day. Moreover, before they were permitted to begin work, they

were required to attend training sessions conducted by Verizon and, upon successful completion of a test, were provided "Safe Dig" certification cards, which, it may be inferred, they were required to obtain in order to work on the Verizon worksites. Under these facts, Mr. Maldonado and/or Utilities Maldonado and Verizon were "not completely disassociated" with respect to

Plaintiffs' employment and could be "deemed to share control" of Plaintiffs, either "directly or indirectly, by reason of the fact that [Verizon] control[led] . . . the other employer," namely, Mr. Maldonado and/or Utilities Maldonado. 791.2(b). In support of its motion to dismiss, Verizon relies heavily on Judge Williams' decision in Quinteros. There, the plaintiffs 29 C.F.R. §

were subcontractors who worked, on a per job basis, on "special projects" that were occasionally offered by Sparkle Cleaning, Inc., a commercial cleaning service. at 766. if they Quinteros, 532 F.Supp.2d

At some point, Sparkle contacted the plaintiffs to see were available to work on such a project at Regal

Cinemas. to accept

The plaintiffs owned their own equipment and were free or decline job, various any job that Sparkle when offered. theaters they were They were not

accepted closed,

the at

working Regal

overnight locations. 14

the

When

compensated for overtime wages, they filed suit against Sparkle and Regal under the FLSA. After finding that the plaintiffs were employees of

Sparkle, rather than independent contractors, the court turned to the question of whether Regal was a joint employer. The

court first determined that Sparkle did not "neatly fit into one of the three categories" enumerated by 29 C.F.R. § 791.2(b), and thus considered the tests set forth in Bonnette and Zheng, as suggested by the Fourth Circuit in Schultz. Id. at 774. In

considering those factors, Judge Williams concluded that Regal was not the plaintiffs' joint employer, reasoning as follows: While Plaintiffs work at various Regal Cinemas in Maryland, Virginia, and the District of Columbia, it is Sparkle, not Regal, who sends them to these locations as part of its contract with Regal. Their work is not directly dependent on the work they perform at Regal, but depends on where Sparkle[] sends them ­ in this case, it just happens that Plaintiffs work at Regal. Also, Plaintiffs allege that their work is overseen by Regal, but this is nothing short of a conclusory statement unsupported by sufficient facts in the complaint. Plaintiffs do not depend solely on the business of movie theaters for their work, but rather depend on the business generated from Sparkle Clean[ers] who directs them to work at places like Regal Cinemas. Unlike the plaintiffs in Quinteros, the plaintiffs here

were hired for the sole purpose of laying Verizon's fiber optic cable network and they worked exclusively on Verizon worksites.

15

There are no allegations in the amended complaint suggesting that they exercised the kind of independent control enjoyed by the plaintiffs in Quinteros; indeed, the equipment and supplies used by Plaintiffs were provided by Utilities Maldonado,

Cablecom, Mr. Maldonado and/or Verizon. and assignments were controlled

While their schedules by Mr. Maldonado,

directly

Verizon at least exerted indirect control over the time and manner in which their work was done. Moreover, Plaintiffs'

allegations that Verizon supervisors monitored their work on a daily basis and occasionally gave orders, is not, in this case, a conclusory allegation unsupported by sufficient facts. Quinteros is distinguishable. Here, Plaintiffs were essentially subcontractors hired by a contractor, Mr. Maldonado and/or Utilities Maldonado, which, in turn, was contracted by Verizon. were recently considered in Similar factual circumstances Mendoza v. Essential Quality Thus,

Constr., Inc., 691 F.Supp.2d 680 (E.D.La. 2010). United States District the Court claims for of the a Eastern of

There, the District of

Louisiana

considered

number

construction

workers who filed suit for unpaid wages under the FLSA against Essential Quality Construction, Inc., the subcontractor that

hired them; Quang Nguyen, the principal of Essential Quality; and Harris Builders, LLC, the general contractor that hired

Essential Quality.

Similar to the instant case, the plaintiffs 16

there alleged that their work hours and assignments were set by Essential Quality and Nguyen, but that Harris "was on the job site . . . monitoring plaintiffs' work" and provided them with the construction materials necessary to do the job. 691 F.Supp.2d at 683. Like Verizon here, Harris Mendoza, moved to

dismiss, alleging that it was "not a joint employer, nor does it have any employment or contractual relationship with the

plaintiffs."

Id. at 684.

In finding that Plaintiffs had alleged sufficient facts to support a claim that Harris was a joint employer under the FLSA, the court explained that although "a general

contractor/subcontractor relationship does not establish joint employment, neither does the fact that such relationship exists preclude the possibility that the employees of the subcontractor are also the employees of the general contractor." Id. at 685

(citing Quintanilla v. A & R Demolitina, Inc., 2005 WL 2095104 (S.D.Tex. 2005); Zheng, 355 F.3d at 74-75). It then employed

the "economic reality" test set forth by the Fifth Circuit in Reich v. Circle C. Investments, Inc., 998 F.2d 324 (5th Cir. 1993), finding as follows: Applying the first factor of the economic reality test set forth by Circle C, i.e. the employer's right to control the work, plaintiffs' allegations that they were "jointly hired and employed" by Harris and Essential Quality and that Harris' superintendent monitored their work on a 17

daily basis, suggests that Harris had the right to control the work of plaintiffs. As for the second factor, i.e. the worker's opportunity to influence his profit or loss, plaintiffs allege that their rates of pay were "determined by Quang `John' Nguyen, and approved by Essential Quality and/or Harris Builders." Such would support a finding that plaintiffs had little ability to influence plaintiffs' profit or loss. Plaintiffs are much more akin to wage earners toiling for a living. With respect to the third factor, i.e. the worker's investment in equipment and materials, the assertion that the defendants "provided plaintiffs with paint, sheet rock, tape and other supplies to do the job" suggests that plaintiffs' investment in materials may have been minimal. Finally, as to the last factors, i.e. whether the service requires special skills and the degree of permanence of the working relationship, plaintiffs have not stated whether or not their jobs involved any special skills, nor have they alleged a specific duration of employment, although plaintiffs have stated that their work was performed over a period of three months. Mendoza, 691 F.Supp.2d at 685 (footnotes omitted). Those facts,

the court found, "suggest[ed] that an employment relationship, as defined by the FLSA, may have existed between plaintiffs and Harris." Id. It further explained that although "plaintiff[s'] also suggest that Essential Quality may have

allegations

exercised greater control over plaintiffs than Harris, the Court cannot determine at this stage whether this would preclude the possibility of an employment relationship with the other." at 685-86. Id.

18

Aside from the fact that Plaintiffs here have not set forth sufficient facts to establish that Verizon participated in the decision to hire them, the instant case appears to be materially indistinguishable. Considering the expansive definitions of

"employer" and "employee" prescribed by the FLSA and the Act's remedial purpose, Plaintiffs' amended complaint has alleged

facts sufficient to show that Verizon may have been a joint employer of Plaintiffs under the FLSA and MWHL.3 this nascent stage of the litigation, that is Particularly at all that was

required of them.

Accordingly, Verizon's motion to dismiss the

FLSA and MWHL claims will be denied. B. The Maryland Wage Payment and Collection Law Claim

Verizon's argument in support of dismissal of Plaintiffs' claim under the Maryland Ann. Wage Lab. Payment & Empl. and §§ Collection 3-501, et Law seq.,

("MWPCL"),

Md.

Code.

consists solely of its claim that there was not an employment relationship Verizon may between be it and to be Plaintiffs. Plaintiffs' Even assuming under that the

deemed

employer

MWPCL, however, Plaintiffs' amended complaint fails to state a claim for relief.

Because the court finds that Verizon may be a "joint" employer, it does not consider whether Verizon, Cablecom, and Utilities Maldonado may also be "integrated" employers, to the extent that claim is distinct. 19

3

Unlike the FLSA and MWHL, the MWPCL "does not concern the amount of wages payable but rather the duty to pay whatever wages are due on a regular basis and to pay all that is due following termination of the employment." 373 Md. 501, 513 (2003); see also Friolo v. Frankel, v. Murphy, 372

McLauglin

F.Supp.2d 465, 474 (D.Md. 2004).

In the third count of their

amended complaint, Plaintiffs allege that "Defendants failed and refused to timely pay Plaintiffs' (and other similarly situated) wages within two weeks of termination of Plaintiffs' employment by Defendants," and that this was "not the result of a bona fide dispute." (Paper 24, at ¶¶ 58, 59). The factual section of the

complaint, however, appears to allege that Mr. Maldonado and/or Ms. Rivera were responsible for payment of Plaintiffs' wages. The only allegations specifically naming Ms. Rivera, d/b/a

Communication Moreno Company, assert that her "responsibilities included, inter alia, signing the Plaintiffs' paychecks," and that she and Mr. Maldonado "informed each Plaintiff that their first week's wages would be held `in the hole.'" 12, 37). Moreover, Plaintiffs allege that (Paper 24, ¶¶ Mr. Maldonado

"reported to [them] that he did not pay overtime compensation for work in excess of forty hours per week," and that he

"deducted state and federal payroll taxes from Plaintiffs' wages and failed to forward the taxes to the proper authorities." (Id. at ¶¶ 41, 42). Although 20 they allege, in conclusory

fashion,

that

"Defendants

have

failed

and

refused

to

pay

Plaintiffs' earned wages, despite repeated requests to do so" (id. at ¶ 40), there are no specific allegations that Verizon was in anyway involved in paying Plaintiffs or withholding their wages, and all of the well-pled allegations as to this point suggest that it was not. Accordingly, Verizon's motion to

dismiss the MWPCA claim will be granted. C. The Unjust Enrichment Claim

Insofar as the court finds that Verizon was not responsible for paying Plaintiffs' claim for for wages, it follows logically prevail. Maryland that To law,

Plaintiffs' state a

unjust unjust

enrichment enrichment

cannot under

claim

Plaintiffs must allege that (1) they conferred a benefit on Verizon, (2) that Verizon appreciated or had knowledge of that benefit, and (3) that it accepted or retained the benefit

without the payment of its value. Settlements, complaint Verizon LLC, 402 no Md. 281,

See Hill v. Cross Country 295 (2007). The amended that it by

contains not

specific for the

allegations

suggesting upon

did

pay

benefit

conferred

Plaintiffs.

As noted, the clear thrust of the complaint is that

it was Mr. Maldonado and/or Ms. Rivera, not Verizon, that failed to pay Plaintiffs the wages they were due. enrichment claim will be dismissed. Thus, the unjust

21

D.

The Breach of Contract Claim

Verizon contends that "Plaintiffs' breach of contract claim must fail because there is no allegation of the existence of a contract, employment or otherwise, between Plaintiffs and

Verizon Maryland."

(Paper 32, Attach. 1, at 8).4

Plaintiffs

counter by asserting that Verizon may be liable for breach of contract because it was a "joint or integrated employer" or, alternatively, that "[a]n employment contract was formed . . . because it is inferable from the facts alleged in the Amended Complaint that Defendants Cablecom, Utilities Maldonado, and

Armando Maldonado formed the contracts operating in an agency capacity on behalf of Verizon Maryland." The fourth count of the amended (Paper 42, at 13-14). complaint asserts that

"Defendants, or their agents, entered into employment contracts with Plaintiffs (and others similarly situated) by promising

each Plaintiff certain rates of pay for work performed"; that "Defendants" then breached the employment contract "by failing to pay each Plaintiff for the work performed"; and that

Plaintiffs suffered damages as a result.

(Paper 24, ¶¶ 61-63).

The factual allegations, however, specifically assert that Mr. Maldonado "offered to hire" Plaintiffs at specific rates of pay, and that each plaintiff's acceptance of his offer "form[ed] an Verizon further argues that the breach of contract claim is preempted by the FLSA claim. Because the court will dispose of the motion on other grounds, it will not reach this claim. 22
4

employment Plaintiffs' allegations

contract." claim to

(Paper the forth

24,

at

¶¶

17-23). are no

Despite well-pled that Mr.

contrary, any basis

there for

setting

finding

Maldonado hired Plaintiffs while acting as an agent of Verizon; indeed, Plaintiffs have not pointed to any. Nor does the fact

that Verizon might be considered a joint employer under the FLSA have any bearing on its liability for a common law breach of contract claim. of the MWCPL Moreover, as noted in the foregoing discussion and unjust enrichment claims, Plaintiffs have

failed to allege that Verizon "fail[ed] to pay [them] for the work performed." Accordingly, Plaintiffs' breach of contract

claim cannot be sustained. IV. Conclusion For the foregoing reasons, Verizon's motion to dismiss will be granted in part and denied in part. follow. A separate order will

________/s/_________________ DEBORAH K. CHASANOW United States District Judge

23