Calle v. Or
Filing
9
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 1/18/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSE LUIS RIVAS CALLE
:
v.
:
Civil Action No. DKC 11-0716
:
CHUL SUN KANG OR
MEMORANDUM OPINION
Presently pending and ready for resolution in this action
arising
under
the
Fair
Labor
Standards
Act
(“FLSA”)
is
the
motion to dismiss or, alternatively, for summary judgment filed
by Defendant Chul Sun Kang Or.
(ECF No. 6).
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, Defendant’s motion will be granted in part and denied in
part.
I.
Background
The following facts are either alleged by Plaintiff Jose
Luis Rivas Calle or taken in the light most favorable to him.
Plaintiff
worked
exclusively
for
Defendant’s
business from January 2008 through March 2011.
primarily
siding
for
included
the
Defendant’s
installation
residential
of
His job duties
doors,
clients,
construction
and
windows,
with
and
limited
exceptions, Plaintiff performed these services in Maryland.
Defendant was responsible for Plaintiff’s work schedule,
including his work hours.
Each morning, Defendant would meet
Plaintiff at a specified bus stop, drive him to a work site, and
instruct
him
to
install
windows,
doors,
or
siding.
“On
occasion,” Defendant would also instruct Plaintiff to perform
other types of work at the site.
(ECF No. 6-2 ¶ 16).
Defendant
regularly supervised Plaintiff’s work to ensure that it was of
“sufficient quality.”
(ECF No. 8-1 ¶ 16).
Additionally, while
Plaintiff brought his own tool belt to work, Defendant provided
all
large
tools
and
scaffolding
necessary
for
Plaintiff
to
complete his assignments.
These assignments required Plaintiff to work between ten
and twelve hours each day, leading him to work approximately
sixty-six
hours
per
week.
Defendant,
however,
never
paid
Plaintiff at an overtime rate for the excess hours he worked.
Rather, Defendant paid Plaintiff on a weekly basis using a daily
rate.1
fixed
Defendant
terminated
the
parties’
working
relationship in March 2011.
Shortly thereafter, on March 17, 2011, Plaintiff filed this
action against Defendant.
In the complaint, Plaintiff alleges
that Defendant violated the FLSA, 29 U.S.C. §§ 201, et seq., the
1
Initially, Plaintiff was paid at a daily rate of $160, but
Defendant reduced this rate to $140 in December 2009, and $120
shortly before March 2011.
Plaintiff’s compensation did not
include benefits.
2
Maryland Wage and Hour Law, Md. Code. Ann., Lab. & Empl. §§ 3401,
et
seq.
(“MWHL”),
and
the
Maryland
Wage
Payment
and
Collection Law, id. §§ 3-501, et seq. (“MWPCL”), by refusing to
pay overtime for all hours worked in excess of a forty-hour
week.
On
May
19,
2011,
Defendant
alternatively, for summary judgment.2
moved
to
dismiss
or,
Plaintiff timely opposed
this motion, but Defendant did not file a reply.
II.
Analysis
Defendant has moved to dismiss or, in the alternative, for
summary judgment on two grounds.
The parties rely on matters
outside the pleadings only when addressing the second ground whether Plaintiff was an independent contractor, rather than an
employee.
Thus,
while
resolution
of
this
issue
requires
treating Defendant’s motion as one for summary judgment, his
first
argument,
i.e.,
that
the
complaint’s
allegations
are
themselves insufficient to state a claim for relief, will be
resolved as a motion to dismiss.
A.
Motion to Dismiss for Failure to State a Claim
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) is to test the sufficiency of the complaint.
2
Presley
Defendant attached an exhibit to his motion that included
copies of Plaintiff’s Forms 1099-MISC for the years 2008 through
2010. These copies, however, did not redact Plaintiff’s social
security number.
To correct this problem, Defendant filed a
redacted version of the exhibit later the same day.
(See ECF
No. 7).
3
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P.
8(a)(2).
requires
Nevertheless,
“Rule
8(a)(2)
still
a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
(2007).
That showing must consist of more than “a formulaic
recitation
of
the
elements
of
a
cause
of
action”
assertion[s] devoid of further factual enhancement.”
v.
Iqbal,
129
S.Ct.
1937,
1949
(2009)
(internal
or
“naked
Ashcroft
citations
omitted).
At this stage, the court must consider all well-pleaded
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)).
In evaluating the complaint, the court need
not accept unsupported legal allegations.
Revene v. Charles
Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Nor must it
agree
allegations,
with
legal
conclusions
couched
as
factual
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), or conclusory
factual allegations devoid of any reference to actual events,
4
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir. 2009).
“[W]here the well-pleaded facts do not permit the
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.’”
(quoting Fed.R.Civ.P. 8(a)(2)).
Iqbal,
129
S.Ct.
at
1950
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.”
Defendant
contends
that
Plaintiff’s
Id.
allegations
are
“legally insufficient under applicable law” to state a claim for
relief.
(Id. at 7).
Plaintiff disagrees, maintaining that his
allegations adequately state a claim for overtime pay under the
FLSA, MWHL, and MWPCL.
Both parties are partially correct.
That is, while Plaintiff sets forth sufficient allegations to
proceed
under
the
FLSA
and
MWHL,
his
MWPCL
claim
must
be
dismissed for failure to state a claim.
1.
Both
Plaintiff Has Stated a Claim for Overtime Compensation
Under the FLSA and MWHL
the
FLSA
and
MWHL
generally
require
employers
to
provide their employees with overtime compensation for all hours
worked in excess of a forty-hour week.
5
29 U.S.C. § 207; Md.
Code Ann., Lab. & Empl. §§ 3-415, 3-420.3
To state a claim for
overtime compensation under the FLSA and MWHL, a plaintiff must
set forth factual allegations demonstrating that he worked more
than forty hours per week without receiving overtime pay from
his employer and that his employer knew or should have known
about the unpaid overtime.
Butler v. DirectSat USA, LLC, 800
F.Supp.2d 662, 667 (D.Md. 2011); Avery v. Chariots for Hire, 748
F.Supp.2d
matter,
492,
the
496
(D.Md.
requirements
2010).4
to
state
Because,
such
a
as
claim
a
practical
“are
quite
straightforward,” Sec’y of Labor v. Labbe, 319 F.App’x 761, at
*1 (11th Cir. 2008), courts have routinely found that plaintiffs
satisfy this standard merely by alleging that their employers
3
The FLSA applies only to “covered employers.” Purdham v.
Fairfax Cnty. Sch. Bd., 637 F.3d 421, 426-27 (4th Cir. 2011).
“There are two general ways employers become covered.
One is
that the employee requesting FLSA protection is himself ‘engaged
in commerce or in the production of goods for commerce.’
The
other is that the employee ‘is employed in an enterprise engaged
in commerce of in the production of goods for commerce.’” Rains
v. E. Coast Towing & Storage, LLC, --- F.Supp.2d ---, 2011 WL
5121124, at *2 (E.D.Va. Sept. 20, 2011) (citations omitted)
(quoting 29 U.S.C. § 207(a)(1)).
4
The MWHL is “the State parallel” to FLSA, Friolo v.
Frankel, 373 Md. 501, 513 (2003), and the requirements to state
a claim under the MWHL “mirror those of the federal law,” Turner
v. Human Genome Scis., Inc., 292 F.Supp.2d 738, 744 (D.Md.
2003).
Therefore, Plaintiff’s “claim under the MWHL stands or
falls on the success of [his] claim under the FLSA.”
Turner,
292 F.Supp.2d at 744; see also Jennings v. Rapid Response
Delivery, Inc., No. WDQ-11-0092, 2011 WL 2470483, at *5 (D.Md.
June 16, 2011) (finding that the plaintiffs had sufficiently
pleaded a claim under the MWHL by adequately pleading their FLSA
claim).
6
did not provide them with overtime pay even though they worked
in excess of forty hours during the workweek, see, e.g., Hawkins
v. Proctor Auto Serv. Ctr., No RWT-09-1908, 2010 WL 1346416, at
*1 (D.Md. Mar. 30, 2010) (concluding that the plaintiff “clearly
state[d] a[n FLSA] claim that is plausible on its face” when
asserting that “he worked more than forty hours a week . . . and
that Defendants did not compensate him for the overtime”).
Here, Plaintiff’s allegations satisfy this standard and are
sufficient
to
state
complaint
asserts
a
claim
that
under
the
Plaintiff
FLSA
worked
and
MWHL.
The
in
Defendant’s
construction business – an “enterprise” engaged in commerce for more than three years installing doors, windows, and siding.
(ECF No. 1 ¶¶ 2-3, 5).
It also notes that Defendant, who served
as Plaintiff’s “supervisor and determined [his] rate and method
of compensation,” provided Plaintiff with work that took him
“approximately sixty-six . . . hours per week” to complete.
(Id. ¶¶ 2, 6).
Yet despite working well in excess of forty
hours per week, Plaintiff alleges that he never received any
overtime
compensation.
Rather,
the
complaint
contends
that
Defendant paid Plaintiff “straight pay,” at a fixed daily rate,
“for all hours worked including overtime.”
5
(Id. ¶ 8).5
The fact that Defendant paid Plaintiff using a fixed daily
rate, rather than a fixed hourly rate, has no bearing on
Plaintiff’s ability to state a claim for overtime compensation.
7
Defendant asserts that Plaintiff has set forth no facts
“delineating
the
purported
[overtime]
violations,”
contending
“[a]ll that Plaintiff has done is conclude that Defendant is an
‘employer’ and an ‘enterprise’” under the FLSA.
at
7-8)
(further
emphasizing
that
Plaintiff
(ECF No. 6-1,
did
not
provide
“dates, witnesses, or other relevant information” in support of
his
claims).
This
contention,
however,
wholly
ignores
the
factual allegations above and simply demands too much at this
early stage of the proceedings.6
Plaintiff’s allegations, which
detail the type of work activities that occupied his overtime
See Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 308 (4th
Cir. 2006) (permitting security agents who worked in excess of
forty hours per week to seek overtime pay when they had been
paid only “a set rate for each shift worked”).
6
To the extent Defendant is arguing that the allegations
regarding Plaintiff’s status as an “employee” or Defendant’s
status as an “enterprise” are themselves insufficient to state a
claim, these arguments are also without merit.
See Speert v.
Proficio Mortg. Ventures, LLC, No. RDB 10-718, 2010 WL 4456047,
at *2-3 (D.Md. Nov. 1, 2010) (finding that the plaintiffs had
adequately alleged an employment relationship with the defendant
by describing their duties and asserting that they worked for
the defendant for three months); Puleo v. SMG Prop. Mgmt., Inc.,
No. 6:08-cv-86-Orl-22DAB, 2008 WL 3889727, at *2 (M.D.Fla. Aug.
20, 2008) (concluding that a worker had stated a claim under the
FLSA by alleging that the defendant mortgage company, a business
qualifying as an enterprise, employed him on an hourly basis for
more than forty hours per week without providing overtime pay);
Simmons v. United Mortg. & Loan Inv., LLC, No. 3:07CV496-MU,
2008 WL 2277488, at *3 (W.D.N.C. May 30, 2008) (finding
allegations that the defendant mortgage company was “an employer
engaged in interstate commerce and/or the production of goods
for interstate commerce” sufficient to infer that the company
was an “enterprise”), vacated in part on other grounds by 634
F.3d 754 (4th Cir. 2011).
8
hours as well as the approximate number of hours he worked each
week
while
Defendant
supervised
him,
provide
Defendant
with
sufficient notice about the basis of Plaintiff’s FLSA and MWHL
claims to enable him to form a response.
at
667-68.
Thus,
Defendant’s
attempt
Butler, 800 F.Supp.2d
to
have
these
claims
dismissed for failure to state a claim must fail.
2.
Plaintiff Has Not Stated a Claim for Overtime
Compensation Under the MWPCL
The MWPCL permits employees to recover treble damages when
their employers do not pay them on a regular basis or promptly
upon termination.
Butler, 800 F.Supp.2d at 669 (citing Md. Code
Ann., Lab. & Empl. §§ 3-502, 3-505).
Plaintiff requests such
damages in this action, asserting that the MWPCL covers overtime
compensation claims because its definition of “wage” expressly
includes overtime pay.
(ECF No. 1 ¶¶ 20-21 (citing Md. Code
Ann.,
3-501(c))).
Lab.
&
Empl.
§
This
argument,
however,
misunderstands the nature of the causes of action provided by
the MWPCL.
The MWPCL does not . . . provide a cause of
action directed at [an] employer’s failure
to pay overtime.
For these actions,
plaintiffs must look to the MWHL, Md. Code
Ann., Lab. & Empl. §§ 3-415 and 3-420.
Accordingly, other judges in this district
have rejected plaintiffs’ attempts to state
claims for violation of the MWPCL where the
parties’ core dispute is whether plaintiffs
were entitled to overtime wages at all and
not whether overtime wages were paid on a
regular basis or upon termination.
See
9
McLaughlin [v. Murphy, 372 F.Supp.2d 465,
474–75 (D.Md. 2004)]; Williams v. Md. Office
Relocators, 485 F.Supp.2d 616, 621–22 (D.Md.
2007); Tucker v. Sys. Specialist Furniture
Installation, Inc., No. JFM–07–1357, 2007 WL
2815985 *1 (D.Md. Sept. 26, 2007); Watkins
v. Brown, 173 F.Supp.2d 409, 416 (D.Md.
2001); Fisher v. Rite Aid Corp., No. 09–
1909, 2010 WL 2332101 *2 (D.Md. June 8,
2010).
Butler, 800 F.Supp.2d at 670.
In
the
Defendant’s
complaint,
failure
to
Plaintiff
pay
him
focuses
the
his
overtime
allegations
on
compensation
he
earned while working in excess of forty hours per week.
(See
ECF No. 1 ¶ 8) (“Defendant never compensated Plaintiff” with
overtime pay.”).
pay
him
“He does not allege that [Defendant] failed to
regularly,
but
that
[Defendant]
failed
to
pay
him
enough; and he does not allege that [Defendant] failed to pay
him . . . overtime due him upon his termination, but that it
failed
to
pay
him
F.Supp.2d at 475.
this conclusion.
these
wages
at
all.”
McLaughlin,
372
Plaintiff’s opposition memorandum confirms
Indeed, while he argues that Defendant “never
compensated [him] . . . for overtime work,” Plaintiff does not
once mention Defendant’s failure to pay him regularly or upon
his termination.
(ECF No. 8 ¶ 11).7
7
Accordingly, Plaintiff’s
Plaintiff also relies exclusively on cases addressing the
sufficiency of FLSA or MWHL claims when arguing that he has
stated a claim under the MWPCL.
10
MWPCL
claim
for
overtime
compensation
must
be
dismissed
for
failure to state a claim upon which relief can be granted.
B.
Motion for Summary Judgment
Defendant further argues that, even if Plaintiff has stated
claims for overtime compensation, those claims necessarily fail
at
the
next
step
an
because
the
independent
evidence
demonstrates
contractor,
rather
that
Plaintiff
was
than
an
employee.
A court may enter summary judgment only if there is
no genuine issue as to any material fact and the moving party is
entitled
56(a);
to
judgment
Celotex
Corp.
as
a
matter
v.
Catrett,
of
477
law.
U.S.
See
317,
Fed.R.Civ.P.
322
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
(1986);
Summary
judgment is inappropriate if any material factual issue “may
reasonably be resolved in favor of either party.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co.
LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof
.
.
.
will
not
suffice
11
to
prevent
“A mere scintilla of
summary
judgment.”
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).
construe
the
favorable
facts
to
the
that
Liberty Lobby, 477 U.S. at
At the same time, the court must
presented
opposing
party
are
the
in
the
motion.
light
See
most
Scott
v.
Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
The gravamen of Defendant’s argument on summary judgment is
that Plaintiff was not his employee because the parties treated
Plaintiff’s
position
as
one
of
an
independent
contractor.
Plaintiff disagrees, contending that the “economic reality” of
the
parties’
working
relationship
worked as an employee.
submitted
sworn
indicates
(ECF No. 8, at 10).
declarations
in
support
that
Plaintiff
Both parties have
of
their
respective
positions and, taking the facts in the light most favorable to
Plaintiff,
Defendant’s
request
for
summary
judgment
on
this
ground must fail.
Both the FLSA and MWHL define the employment relationship
“very
broadly,
legislation.”
consistent
with
the
remedial
purposes
of
the
Heath v. Perdue Farms, Inc., 87 F.Supp.2d 452,
456 (D.Md. 2000) (quoting 29 U.S.C. § 203(g) (“‘Employ’ includes
to suffer or permit to work”); Md. Code Ann., Lab. & Empl. § 3101(c) (“‘Employ’ includes: (i) allowing an individual to work;
and
(ii)
instructing
an
individual
12
to
be
present
at
a
work
site.”).
As a result, the “economic reality” of the parties’
working relationship, rather than the label they give to that
relationship,
Rutherford
determine
employment
is
Food
dispositive
Corp.
whether
the
relationship
v.
of
this
McComb,
“economic
exists,
331
issue.
U.S.
reality”
courts
Id.
722
(1947)).
indicates
look
(citing
to
a
that
To
an
six-factor
test:
(1) the degree of control that the putative
employer has over the manner in which the
work
is
performed;
(2)
the
worker’s
opportunities for profit or loss dependent
on his managerial skill; (3) the worker’s
investment in equipment or material, or his
employment of other workers; (4) the degree
of skill required for the work; (5) the
permanence of the working relationship; and
(6) the degree to which the services
rendered are an integral part of the
putative employer’s business.
Schultz, 466 F.3d at 304-05; see also Heath, 87 F.Supp.2d at 457
(looking to these factors when a defendant challenged FLSA and
MWHL
claims
by
contending
existed between the parties).
that
no
employment
relationship
The focal point of this analysis
is “whether the worker is economically dependent on the business
to which he renders service or is, as a matter of economic
reality, in business for himself.”
Schultz, 466 F.3d at 304
(internal quotation marks and brackets omitted).
At the outset, Defendant’s reliance on his status as a sole
proprietor
and
Plaintiff’s
classification
13
as
an
independent
contractor for tax purposes is misplaced.
Indeed, by relying on
these facts, Defendant focuses his argument not on the realities
of the parties’ working relationship, but on the labels affixed
to that relationship – a position directly contrary to that
adopted
by
the
Supreme
Court
of
the
United
States.
See
Rutherford Food, 331 U.S. 722, 729 (“Where the work done, in its
essence, follows the usual path of an employee, putting on an
‘independent contractor’ label does not take the worker from the
protection of the [FLSA].”).
Additionally, Defendant fails to
recognize that the concept of employment under the FLSA and MWHL
is “broader than the common law definition of employment and
even
broader
than
several
other
federal
employment-related
statutes, such as the Internal Revenue Code.”
Herman v. Mid-
Atl. Installation Servs., Inc., 164 F.Supp.2d 667, 671 (D.Md.
2000), aff’d, 16 F.App’x 104 (4th Cir. 2001); cf. Ansoumana v.
Gristede’s
Operating
Corp.,
255
F.Supp.2d
184,
190
(S.D.N.Y.
2003) (concluding that workers were employees under the FLSA and
state
wage
law
even
though
they
had
received
1099
forms
to
report their earnings while working for the defendant).8
Focusing instead on the “economic reality” of the parties’
relationship
suggests
that
Plaintiff
8
was
an
employee,
rather
Form 1099 is generally used, for tax purposes, to report
amounts paid to independent contractors.
See United States v.
Cox, 856 F.2d 187, at *1 (4th Cir. 1988) (unpublished table
opinion) (citing 26 U.S.C. § 6041(a)).
14
than an independent contractor.
The first factor of the test
looks to the degree of control that Defendant exercised over the
manner in which Plaintiff performed his work.
Where a putative
employer “sets the plaintiff[’s] schedule[], directs [him] to
particular
regarding
employee
work
the
sites,”
work
status.
to
and
be
Montoya
provides
specific
performed,
v.
this
S.C.C.P.
factor
Painting
Inc., 589 F.Supp.2d 569, 579 (D.Md. 2008).
instructions
suggests
Contractors,
Here, Defendant
admits that he picked up Plaintiff each morning at a specified
bus stop and drove him to job sites, where he instructed him
regarding
the
work
that
he
needed
to
perform
that
day.
Plaintiff further asserts that Defendant set his work hours and
pay rate, and “individually” supervised his work to ensure that
it was of “sufficient quality.”
(ECF No. 8-1 § 16).
Thus,
contrary to Defendant’s conclusory assertion that he “did not
exercise any . . . control” over Plaintiff (ECF No. 6, at 8),
these allegations suggest that he did, and this factor counsels
in
favor
of
finding
between the parties.
The
second
that
an
employment
relationship
existed
See Montoya, 589 F.Supp.2d at 577-78.
factor
evaluates
opportunities
for
loss dependent on the plaintiff’s managerial skill.
profit
or
“Generally,
an independent contractor undertakes the risks of profit and
loss usually associated with an independent business.”
Lewis v.
ASAP Land Express, Inc., 554 F.Supp.2d 1217, 1223-24 (D.Kan.
15
2008).
Plaintiff did not undertake such risks here.
Defendant
dictated his schedule and paid him a fixed rate for each day
that he worked.
As a result, Plaintiff could not increase his
profits by obtaining additional paid work from Defendant.
On
similar facts, in Schultz, the United States Court of Appeals
for the Fourth Circuit expressly declined to find that workers
had opportunities for profit and loss that depended on their
managerial skills.
See 466 F.3d at 308 (“[The company] paid the
agents a set rate for each shift worked.
The Prince’s schedule
and security needs dictated the number of shifts available and
the hours worked.
There was no way an agent could finish a
shift more efficiently or quickly in order to perform additional
paid
work.”);
see
also
Montoya,
589
F.Supp.2d
at
580.
Therefore, this factor also weighs in Plaintiff’s favor.
The
third
factor
considers
the
equipment and employment of others.
worker’s
investment
in
The parties do not contend
that Plaintiff employed any other workers to perform the work
assigned by Defendant.
Plaintiff’s
relationship.
They do, however, disagree about whether
investment
in
tools
suggests
an
employment
Defendant contends that Plaintiff provided all
tools necessary to perform his assignments.
Plaintiff admits
providing his own tool belt while working for Defendant, but he
maintains that Defendant provided all remaining tools, such as
scaffolding,
necessary
to
perform
16
the
assignments.
At
this
stage of the proceedings, this factual dispute must be resolved
in Plaintiff’s favor.
Scott, 550 U.S. at 378.
If Plaintiff did
provide only his tool belt, with Defendant purchasing all other
necessary tools, this fact strongly suggests that an employment
relationship
existed
between
the
parties
because
small
expenditures – such as the tool belt - do not indicate “the
operation of an independent business enterprise by the worker.”
Bonnetts v. Arctic Express, Inc., 7 F.Supp.2d 977, 982 (S.D.Ohio
1998) (citing Sec’y of Labor v. Lauritzen, 835 F.2d 1529, 1537
(7th Cir. 1987)); see also Montoya, 589 F.Supp.2d at 580 (finding
employee status where painters provided their own brushes and
rollers, but their supervisors provided all remaining tools);
Heath,
87
F.Supp.2d
at
458
(concluding
that
this
factor
suggested that workers were employees, rather than contractors,
where they purchased their own computers, gloves, and masks, but
the
putative
employer
provided
all
other
major
equipment
necessary to perform their jobs).
The fourth factor, the degree of skill required to perform
the job, may weigh in Defendant’s favor.
previously
workers
found
that
the
skills
indicate
that
they
may
installing
construction
windows,
work,
doors,
but
and
because
17
employed
be
E.g., Herman, 164 F.Supp.2d at 675.
Indeed, courts have
by
construction
independent
contractors.
Here, Plaintiff’s job of
siding
“[n]o
does
single
constitute
factor
is
dispositive” in determining employment status, this fact alone
does
not
demonstrate
that
he
Schultz, 466 F.3d at 305.
support this conclusion.
is
an
independent
contractor.
Rather, other considerations must
See Brock v. Superior Care, Inc., 840
F.2d 1054, 1061 (2d Cir. 1988) (noting that the six-factor test
requires
an
evaluation
of
“[t]he
totality
of
the
circumstances”).
The fifth and sixth factors, however, once again weigh in
favor of employee status.
As to the fifth factor, where a
plaintiff provides evidence that he has worked exclusively for
the
defendant
for
an
extended
time
period,
the
relative
“permanence” of the parties’ working relationship suggests that
the plaintiff is an employee.
See Montoya, 589 F.Supp.2d at 581
(granting summary judgment in favor of plaintiffs on the issue
of
employment
indicating
employer
status
that
for
they
nearly
where
had
one
they
worked
year);
had
submitted
full-time
Heath,
87
for
declarations
the
F.Supp.2d
putative
at
458
(reasoning that where “the reality is that [plaintiffs] work
exclusively for [the defendant],” the plaintiffs may constitute
employees).
Plaintiff
has
submitted
a
declaration
that
he
worked exclusively for Defendant from January 2008 until March
2011, thus suggesting a long-standing relationship between the
parties.
Similarly, the sixth factor, which looks to whether
the
performed
work
by
the
plaintiff
18
was
integral
to
the
defendant’s business, comes down in Plaintiff’s favor.
Montoya,
589
windows,
F.Supp.2d
doors,
and
at
581.
siding
Plaintiff’s
was
arguably
installation
a
critical
of
component
of
Defendant’s residential construction business, cf., e.g., Heath,
87
F.Supp.2d
catchers
to
at
be
459
an
(finding
integral
plaintiffs’
part
of
the
work
chicken
as
chicken
processing
business), and Defendant makes no argument to the contrary.
Given
that
five
of
the
six
“economic
reality”
factors
indicate that Plaintiff was an employee, Defendant has failed to
show that, as a matter of law, Plaintiff was an independent
contractor.
His request for summary judgment on this ground
must, therefore, be denied.
III. Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
or, alternatively, for summary judgment will be granted in part
and denied in part.
A separate Order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
19
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