Wade v. Woodland Commons, LLC. et al

Filing 49

DECISION AND ORDER denying Plaintiff's 26 Motion for Partial Summary Judgmentand denying Defendants' 34 Cross-Motion for Summary Judgment. Signed by Senior Judge Thomas J. McAvoy on 3/19/2012. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
RONNIE WADE,
Plaintiff
-against-

1:09-CV-1426

WOODLAND COMMONS, LLC; WOODLAND
TRUST; and TURTLE ROCK TRUST,
Defendants
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Plaintiff Ronnie Wade commenced this action pro se alleging violations of the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”)
§ 198, et seq. Plaintiff asserts that he was not paid wages and overtime compensation by
Defendants, and seeks $41,945.00 in compensation plus liquidated damages. See Compl.
¶ 1, dkt. # 1. Presently before the Court are Plaintiff’s motion for partial summary
judgment, dkt. # 26, and Defendants’ cross-motion for summary judgment seeking to
dismiss Plaintiff’s case. Dkt. # 34.
II.

STANDARD OF REVIEW
On a motion for summary judgment the Court must construe the properly disputed

facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct.
1

1769, 1776 (2007), and may grant summary judgment only where “there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). That is, “[s]ummary judgment is appropriate only if, after drawing all
permissible factual inferences in favor of the non-moving party, there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.” O'Hara v.
National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011)(citing
Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011)). When considering
cross-motions for summary judgment, a court "'must evaluate each party's motion on its
own merits, taking care in each instance to draw all reasonable inferences against the
party whose motion is under consideration.'" Hotel Employees & Rest. Employees Union,
Local 100 of N.Y. v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.
2002)(quoting Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)).
“[N]either side is barred from asserting that there are issues of fact, sufficient to prevent
the entry of judgment, as a matter of law, against it . . . [and] a district court is not required
to grant judgment as a matter of law for one side or the other.” Heublein, Inc., 996 F.2d at
1461.
III.

BACKGROUND
Inasmuch as there are cross-motions for summary judgment, the Court will provide

an overview of each side’s factual assertions, and then discuss the application of the facts
as they pertain to each motion in the Discussion section, below.

2

a.

Defendants’ Factual Assertions1

Woodland Commons is an apartment complex located in Stone Ridge, New York.
The property consists of six buildings each containing eight apartments. The property was
previously owned by Woodland Trust. Bradley B. Davis and Richard B. Davis were the
sole trustees of Woodland Trust. On January 9, 2007, Woodland Commons, LLC was
formed. Ownership of the Woodlands Commons property was thereafter acquired by
Woodland Commons, LLC. Bradley Davis and Richard Davis are the sole members of
Woodland Commons, LLC.
On April 1, 2005, Plaintiff applied for the position of maintenance worker at
Woodland Commons. He was hired and began work for Woodland Trust in April of 2005.
Plaintiff continued in this capacity working for Woodland Commons, LLC after it purchased
Woodland Commons apartments. Plaintiff was hired to work for Woodland Trust as a W-2
employee, working at the gross rate of $400.00 biweekly. Plaintiff was never a contractual
employee, and instead worked as a salaried employee for Woodland Commons and then
Woodland Commons, LLC. All Woodland Commons paychecks were issued biweekly.
Plaintiff worked at the rate of $400.00 biweekly until, at Plaintiffs request,
Woodland Trust provided him with additional work at which time his gross salary was
increased to $1,120.00 biweekly. Plaintiff was eventually relieved of this additional
responsibility during the pay period ending on June 6, 2008, and his gross salary was then
adjusted to $600.00 biweekly. Plaintiff remained at this salary until his arrest and
incarceration on March 4, 2009. Each year, Plaintiff was provided a federal tax W-2 Wage

1

Defendants’ factual assertions are taken from Richard Davis’s affidavit, dkt. # 27.

3

and Tax Statement setting forth his yearly income and withheld taxes.
Plaintiff’s job duties included the performance of general duties around Woodland
Commons including but not limited to snow removal, lawn care and mowing, heating
and cooling maintenance, plumbing, and general repair work. Plaintiff was also
responsible for work at various hours of the day including fixing heating, air conditioning,
lock-outs, and snow removal. His main responsibility was responding to no heat or no hot
water complaints and various odd jobs, and his primary job duty was to remain "on call" for
emergency maintenance situations. Plaintiff was provided a cellular telephone and
tenants at Woodland Commons were provided the number in case of emergencies.
Turtle Rock Apartments is an apartment complex located in New Paltz, New York
consisting of four buildings each containing eight apartments. The property is owned by
Turtle Rock Trust. Richard Davis and Bradley Davis are the sole trustees of Turtle Rock
Trust. Turtle Rock Trust has a separate federal tax identification number and bank
account from Woodland Trust and Woodland Commons, LLC. At the time Plaintiff was
hired to work as a maintenance worker at Woodland Commons, Turtle Rock Apartments
had repair and maintenance work performed by an independent contractor. However, this
contractor stopped performing work at Turtle Rock Apartments shortly after Plaintiff began
work at Woodland Commons. Plaintiff asked that he be allowed an opportunity to bid on
the various maintenance work that needed to be performed at Turtle Rock Apartments,
which he was allowed to do. In doing so, Plaintiff would evaluate specific jobs and submit
a price for the work to be performed.
Beginning in April 2005, Plaintiff performed tasks from time to time throughout

4

Turtle Rock Apartments as an independent contractor.2 He was not paid hourly for his
work at Turtle Rock Apartments, but rather charged Turtle Rock Trust a fee for the
services he provided. For the independently contracted work at Turtle Rock Apartments,
payment was made as requested by Plaintiff. Defendants contend that Plaintiff was in
control of his own potential profit or loss based upon what jobs he chose to undertake at
Turtle Rock Apartments, and Turtle Rock Trust did not require Plaintiff to perform any of
the work requested. Moreover, Plaintiff could and did refuse to perform work at Turtle
Rock Apartments. While Plaintiff did perform various tasks for Turtle Rock Trust over a
period of years prior to his arrest and incarceration, he was never required to do so and at
times other independent contractors were used. Turtle Rock Trust paid Plaintiff for
services rendered and provided him with a yearly federal tax Form 1099-MISC statement
showing the amount of money paid to him for his services.
Defendants contend that Plaintiff was never entitled to overtime because his hours
at Woodland Commons did not exceed 40 in any given week and he was an independent
contractor for the duties performed on behalf of Turtle Rock Trust. Defendants note that

2

Richard Davis asserts:

The reason Turtle Rock did not require a full-tim e m aintenance worker is that the property
was m ostly m aintained by m yself, with Mr. W ade occasionally perform ing specific
m aintenance work on his own or assisting m e with odd jobs. Furtherm ore, as Turtle Rock
was located near m y hom e I would receive calls for needed m aintenance from the tenants
and the m ajority of the tim e would address the issue m yself as well as perform ed the snow
plowing as needed. W hile Mr. W ade did perform work for Turtle Rock, I rem ained the
prim ary provider of m aintenance services at Turtle Rock.
Given that Turtle Rock did not need a full-tim e m aintenance worker I m erely offered Mr. W ade certain
projects at the property as an independent contractor on an as needed basis only. Mr. W ade's work
at Turtle Rock included projects such as replacem ent of building siding, replacem ent of water heaters
and furnaces, repair to wood decking and sidewalks, tile work in bathroom and kitchens, re-seeding
of lawns, tree rem oval and tree plantings.

5

when Plaintiff was paid by either Woodland Trust/Wood Commons, LLC or Turtle Rock
Trust, or when his payment information was reported on federal tax W-2 Wage and Tax
Statements and Form 1099-MISC statements provided to Plaintiff, he did not object or
complain that he was underpaid, not paid the proper amount, or paid in an improper form.
b.

Plaintiff’s Factual Assertions3

In early April 2005, Plaintiff answered a newspaper advertisement seeking a fulltime maintenance worker. He called the listed phone number and spoke to Richard B.
Davis. Davis asked Plaintiff to come to Woodland Commons apartments in Stone Ridge,
New York to fill out an application. After several days, Plaintiff received a call from Davis
who asked him to come to an interview at Woodland Commons apartments on April 11,
2005. Plaintiff was interviewed by Davis and was told he would be paid $13.00 an hour,
and “[t]hat his compensation would be split because he would eventually be required to
work at Turtle Rock Apartments” in New Paltz, New York. Plaintiff was hired that day but
“was not told that he was being hired by either Woodland or Turtle Rock.” Plaintiff
understood that he was “simply hired by Richard B. Davis.”4
Plaintiff commenced his employment on April 11, 2005. He was told by Richard B.
Davis and Rena Kowliski, Defendants’ manager, “that he was expected to work at least 40
hours a week and that he could work as many hours as he wanted.” He understood that
he was required to report to Kowliski and received work orders from her to do work at both
apartment complexes. Plaintiff was told “he would be placed on a payroll and the
3

Plaintiff’s factual assertions are taken from his Affidavit in Opposition to Sum m ary Judgm ent, dkt. #

41.
4
Plaintiff m aintains in this litigation that W oodland Trust/W oodland Com m ons, LLC and Turtle Rock
Trust acted as his joint em ployer.

6

company would submit $400.00 to the payroll company on a bi-weekly basis,” and that at
the end of each month he would receive payment from Turtle Rock Trust for the amounts
owed for his remaining wages.
Plaintiff was “expected to be on call twenty-four hours a day to address tenants[‘]
complaints in emergency situations, such as no heat, no air conditioning, lock-outs, and
snow removal during the winter months, etc.” Plaintiff was provided a cellular telephone
which he was required to have with him at all times, and he understood that tenants from
both apartment complexes were given the telephone number for emergency purposes.
He was also required to perform general maintenance work at both apartment complexes
such as cutting grass, plowing snow, responding to tenants’ emergency situations, reading
gas and/or water meters, and preparing vacated apartments for new tenants. Plaintiff was
authorized to purchase materials for both apartment complexes at a local hardware
retailer using an account maintained by Defendants, and was reimbursed for the gas he
put into Defendants’ truck used at both complexes.
Plaintiff contends that, when combining the time he worked at Woodland Commons
with that at Turtle Rock Apartments, he regularly worked in excess of 40 hours per week
but was not paid at an overtime rate for any of his work. Rather, he was paid at the
regular hourly rate of $13.00, and later $14.00, for all of his work. Plaintiff’s pay came in
two forms. He received biweekly paychecks from the Woodland Trust or Woodland
Commons, LLC account, and he received a lump sum payment from the Turtle Rock Trust
account each month. The monthly lump sum payment was the difference between the
total amount owed calculated on an hourly basis minus the amount in the biweekly checks

7

for that month.5 This practice continued during his employment and until he was arrested
and incarcerated on March 4, 2009. After his arrest and incarceration, Defendants failed
to pay his wages for part of February and the beginning of March 2009.
Plaintiff attached to his affidavit copies of the federal W-2 Wage and Tax
Statements that he received from Woodland Trust and Woodland Commons, LLC; copies
of the federal Forms 1099-MISC statements that he received from Turtle Rock Trust; and
a copy of one Form 1099-MISC statement that he received from Woodland Trust in 2007.
See dkt. 41-1, pp. 95-97, 100-101, 105-110, 112-117. Even though he received federal
tax Form 1099-MISC statements, he contends that he “contracted out only the changing of
carpets at both Woodland and Turtle Rock” and that the rest of the work he did at both
locations was calculated on an hourly rate. Plaintiff asserts that he did not act as an
independent contractor when he did the work at Turtle Hill Apartments, and he “never
complained [about the payment situation] because he was being paid at a rate of $13.00
per hour when he was hired and thereafter in 2007, received a one dollar an hour raise.”
IV.

DISCUSSION
The FLSA was enacted by Congress “to protect all covered workers from

substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental
to the maintenance of the minimum standard of living necessary for the health, efficiency
and general well-being of workers.’” Barrentine v. Arkansas–Best Freight Sys. Inc., 450
U.S. 728, 739 (1981) (quoting 29 U.S.C § 202(a))(footnote omitted). Section 207 specifies

5

Plaintiff concedes that his biweekly paycheck from W oodland Trust/W oodland Com m ons, LLC
started out at $400.00, was increased to $1,120.00 biweekly, and then reduced to $600.00 biweekly. He
contends, however, that his m onthly checks from Turtle Rock Trust fluctuated in direct relation to the
am ounts he received from W oodland Trust/W oodland Com m ons, LLC.

8

that an employer must pay employees who work in excess of forty hours during a
workweek for the excess hours “at a rate not less than one and one-half times the regular
rate at which he is employed.” 29 U.S.C. § 207(a)(1); see Santillan v. Henao, --- F.
Supp.2d ----, 2011 WL 4628752, at *3 (E.D.N.Y. Sept. 30, 2011). Employers in violation of
this provision “shall be liable to the employee or employees affected in the amount of ...
their unpaid overtime compensation ... and in an additional equal amount as liquidated
damages.” 29 U.S.C. § 216(b).
New York's Labor Law is the state analogue to the federal FLSA. . . . [I]t ...
mirrors the FLSA in compensation provisions regarding . . . overtime . . . .
See N.Y. Comp. Codes R. & Regs. tit. 12, § 142–2.2 (same methods as
employed in the FLSA for calculating overtime wages). The New York Labor
Law also expressly provides that employees are entitled to recover all unpaid
wages. See N.Y. Lab. Law § 198(3) . . . . One notable difference in New York
law is that it contains a "spread of hours" provision which allows a plaintiff to
recover an extra hour's worth of pay at the minimum wage for each day that
an employee works in excess of ten hours. N.Y. Comp. Codes R. & Regs. tit.
12, § 142–2.4. Section 663 of the Labor Law also expressly authorizes an
employee to sue his or her employer to recover unpaid wages otherwise due
to him or her under the statute. N.Y. Lab. Law § 663(1).
Santillan, 2011 WL 4628752, at *4.
Pursuant to the version of NYLL § 198(1–a) in effect during the time covered by this
lawsuit, a plaintiff is entitled to liquidated damages equal to 25% of the total amount of
wages due if the employer’s failure to pay compensation under the NYLL was “willful.”
N.Y. Lab. Law § 198(1–a) (McKinney 2008); see Kuebel v. Black & Decker Inc., 643 F.3d
352, 366 and n. 9. (2d Cir. 2011).6

6

Section 198(1–a) was am ended in 2009 and 2010 after Plaintiff ended his em ploym ent, and now
provides that an em ployee who prevails on a wage claim is entitled to liquidated dam ages equal to 100% of
the am ount of wages found to be due “unless the em ployer proves a good faith basis to believe that its
underpaym ent of wages was in com pliance with the law.” N.Y. Lab. Law § 198(1–a) (McKinney 2011); see
also id. § 663(1).

9

a.

Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves for partial summary judgment on three issues, which the Court will
address seriatim.
1.

Defendants’ Statute of Limitations Affirmative Defense

Plaintiff seeks to dismiss Defendants’ Ninth Affirmative Defense which asserts that
Plaintiff’s claims are barred by the applicable statutes of limitations. See Answer, Ninth
Affirmative Defense. The statute of limitations for a FLSA claim is two years from the date
the cause of action accrued, see Doo Nam Yang v. ACBL Corp., 427 F. Supp.2d 327, 337
(S.D.N.Y. 2005)("A cause of action under the FLSA accrues on the regular payday
immediately following the work period for which services were rendered and not properly
compensated ."), unless the employer willfully violated the FLSA in which case the statute
of limitations is three years. See 29 U.S.C. § 255(a); Young v. Cooper Cameron Corp.,
586 F.3d 201, 207 (2d Cir. 2009)(“The effect of a willfulness finding is to extend the
statute of limitations period from two to three years.”).
An employer willfully violates the FLSA when it “either knew or showed
reckless disregard for the matter of whether its conduct was prohibited by”
the Act. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S. Ct.
1677, 100 L. Ed.2d 115 (1988); see also Herman v. RSR Sec. Svcs. Ltd.,
172 F.3d 132, 141 (2d Cir.1999). Mere negligence is insufficient.
McLaughlin, 486 U.S. at 133, 108 S. Ct. 1677. . . . The burden is on the
employee to show willfulness. Herman, 172 F.3d at 141.
Young, 586 F.3d at 207.
Plaintiff asserts that Defendants willfully violated the FLSA in three material
respects. One, they failed to pay proper overtime compensation; two, they failed to pay
Plaintiff his wages for part of February and four days of March, 2009; and three, they

10

failed to keep proper time records as required by the FLSA7 and New York Labor Law.8
Taking the facts in the light most favorable to Defendants, there is insufficient basis
to dismiss the Affirmative Defense as it applies to Plaintiff’s FLSA claim of unpaid
overtime compensation. Defendants have provided sworn testimony that Plaintiff did not
work over forty hours in any week at Woodland Commons,9 and that he worked as an
independent contractor at Turtle Rock Apartments. Thus, there is an insufficient basis to
conclude that Defendants violated the FLSA’s overtime provision let alone willfully violated
it. See 29 U.S.C. § 207(a)(1)(requiring overtime compensation only when an employee

7

Under the FLSA, every em ployer is required to “m ake, keep, and preserve such records of the
persons em ployed by [it] and of the wages, hours, and other conditions and practices of em ploym ent.” 29
U.S.C. § 211(c).
Although the term s “wages” and “hours” each have a clear m eaning, the term “other
conditions and practices of em ploym ent” is not entirely self-defining, and therefore has been
given content by regulations prom ulgated by the Departm ent of Labor. These regulations list
the specific conditions and practices of em ploym ent all em ployers are required to docum ent.
See 29 C.F.R. §§ 516.2, 516.5, 516.6. These include: em ployees' regular hourly rate, hours
worked each workday, total hours worked each week, total additions or deductions from
wages, total wages paid each pay period, the date of paym ent, and the pay period covered
by each paym ent.
Solis v. Cindy's Total Care, Inc., 2012 W L 28141, at *17 (S.D.N.Y. Jan. 5, 2012).
8

Santillan v. Henao, --- F. Supp.2d ----, 2011 W L 4628752, at * 4 (E.D.N.Y. Sept. 30, 2011)(“Like its
federal counterpart, the Labor Law requires that em ployers m aintain records for their em ployees who fall
under the Labor Law's wage protections.”)(citing N.Y. Lab. Law §§ 195, 661; N.Y. Com p. Codes R. & Regs.
tit. 12, § 138–3.1 (specifying content of em ployer's records)).
9

Both parties agree that Plaintiff was required to carry a cellular telephone and be “on call” for
tenants’ com plaints, at least for W oodland Com m ons tenants. The U.S. Departm ent of Labor's regulations
prom ulgated under the FLSA provide that “[a]n em ployee who is required to rem ain on call on the em ployer's
prem ises or so close thereto that he cannot use the tim e effectively for his own purposes is working while ‘on
call.’” 29 C.F.R. § 785.17. “W hen an em ployee is not confined to his hom e or any particular place and m ay
com e and go as he pleases, the ‘hours spent ‘on call’ are not considered as hours worked.’” Daniels v. 1710
Realty LLC, 2011 W L 3648245, at *5 (E.D.N.Y. Aug. 17, 2011)(quoting Nonnenm ann v. City of New York,
2004 W L 1119648 (S.D.N.Y. May 20, 2004) and citing 29 C.F.R. § 778.223 and Singh v. City of New York,
524 F.3d 361, 368, n. 4 (2d Cir. 2008) (em ployees m ay seek com pensation for tim e spent “on call” when their
em ployer restricts their ability to use tim e freely for their own benefit)). It is unclear on this record whether
Plaintiff is entitled to be com pensated for tim e he was on call, or whether he is claim ing such tim e.

11

works more than 40 hours in a week); Brock v. Superior Care, Inc., 840 F .2d 1054, 1058
(2d Cir. 1988) (independent contractors are not covered by the FLSA); see also
Discussion, infra, regarding “joint employers.”
Assuming that there was a violation of the FLSA in this regard, Plaintiff has not
provided sufficient evidence to establish that the violation was willful. The fact that
Bradley Davis is an attorney does not establish a willful violation. Moreover, there exist
questions of fact as to the number or hours Plaintiff worked for both entities and
Defendants’ understanding of the capacity in which Plaintiff worked for Turtle Rock Trust.
See Kuebel, 643 F.3d at 366 (Because questions of fact existed as to employer’s
knowledge whether plaintiff was entitled to overtime compensation, “the question of
willfulness for FLSA statute of limitations purposes is properly left to trial.”).
As to Plaintiff’s claim that he was not paid his wages for parts of February and
March 2008, Richard Davis asserts that Plaintiff was paid all of the wages that he was
due. Thus, a question of fact exists as to whether there was a violation in this regard, and
if there was, whether it was a willful violation.
As to Plaintiff’s claim that his employer violated the FLSA’s record keeping
requirements, and assuming such a violation occurred, there is a question of fact as to
whether the violation was willful. Defendants have asserted that it understood that
Plaintiff was a salaried employee who received a set amount of compensation every two
weeks. Even if this arrangement violated the FLSA’s record keeping requirements, it
remains a question of fact as to whether it was a willful violation.
Moreover, and assuming, arguendo, that there were willful violations of the FLSA,
Plaintiff commenced this action on December 23, 2009. Any FLSA claim that accrued
12

before December 23, 2006 would be subject to Defendants’ affirmative defense of the
statute of limitations. Thus, the motion in this regard is denied.
Plaintiff’s New York Labor Law claims are governed by a six year statute of
limitations. See Winfield v. Citibank, N.A., ––– F. Supp.2d ––––, 2012 WL 423346, at *11
(S.D.N.Y. Feb.9, 2012) (“[T]here are claims [for unpaid overtime] under New York law and
[ ] these claims, unlike the FLSA claims, have a six-year statute of limitations.”); Dragone
v. Bob Bruno Excavating, Inc., 45 A.D.3d 1238, 847 N.Y.S.2d 251, 253 (N.Y. App. Div., 3rd
Dept., 2007) (“Under Labor Law § 198(3), the limitations period to recover on such claims
is six years.”). The Ninth Affirmative Defense is directed at both the FLSA and state law
claims. The Court will not parse out portions of the affirmative defense that will stand, but
the parties should understand that at trial the question of the applicable statute of
limitations will apply only to the FLSA claims.
2.

Joint Employers

Next, Plaintiff argues that he is entitled to summary judgment finding that Woodland
Trust and, later, Woodland Commons, LLC, acted with Turtle Rock Trust as “joint
employers.”
The FLSA defines an “employer” as an entity “acting directly or indirectly in the
interest of an employer in relation to an employee....” 29 U.S.C. § 203(d).10 An
employment relationship exists under the FLSA when the “economic reality” is such that
the “alleged employer possessed the power to control the workers in question.” Herman v.
RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.1999). “An entity need not possess

10

The definition of “em ploy” under the FLSA “includes to suffer or perm it to work.” 29 U.S.C. § 203(g).

13

‘formal control’ over a worker to qualify as an employer; the entity may simply exercise
‘functional control’ over the worker in question.” Paz v. Piedra, 2012 WL 121103, at * 4
(S.D.N.Y. Jan. 12, 2012)(citing Zheng v. Liberty Apparel Co., 355 F.3d 61, 72 (2d Cir.
2003)). “Factors relevant to determining control over a worker's employment include
‘whether the alleged employer (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.’” Id.
(quoting Herman, 172 F.3d at 139). “No one of the four factors standing alone is
dispositive,” Herman, 172 F.3d at 139, and a court should consider “any other factors it
deems relevant.” Zheng, 355 F.3d at 71–72.11
If the facts demonstrate that the employee is jointly employed by more than one
employer, then “all of the employee's work for all of the joint employers during the
workweek is considered as one employment for purposes of [the FLSA]”. 29 C.F.R. §
791.2(a); Zheng, 355 F.3d at 66 (citing 29 C.F.R. § 791.2). “When two or more entities

11

As the Southern District noted in Paz,

The Second Circuit in Zheng applied six additional factors, which overlap som ewhat with the
four Herm an factors, that the court found pertinent to the question of whether a general
contractor exhibited functional control over the em ployees of a subcontractor:
(1) whether [the general contractor's] prem ises and equipm ent were used for the plaintiffs'
work; (2) whether the [subcontractor] had a business that could or did shift as a unit from one
putative joint em ployer to another; (3) the extent to which plaintiffs perform ed a discrete
line-job that was integral to [the general contractor's] process of production; (4) whether
responsibility under the contracts could pass from one subcontractor to another without
m aterial changes; (5) the degree to which the [general contractor] or [its] agents supervised
plaintiffs' work; and (6) whether plaintiffs worked exclusively or predom inantly for the [general
contractor].
355 F.3d at 72; accord Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 142 (2d
Cir. 2008) (recognizing “different sets of relevant factors based on the factual challenges posed by
particular cases”).

14

operate as joint employers of a given worker, each employer is jointly and severally liable
to those affected employees for the FLSA violations of all other joint employers.” Paz,
2012 WL 121103, at *5; see Ansoumana v. Gristede's Operating Corp., 255 F. Supp.2d
184, 186 (S.D.N.Y. 2003)(“Both Duane Reade and the Hudson/Chelsea defendants were
the ‘employers' of the plaintiffs under [the FLSA and the NYLL], [and are] jointly and
severally obligated for underpayments of minimum wage and overtime....”); 29 C.F.R. §§
791.2(a)(b).
A joint employment relationship does not exist if the alleged joint employers
“are acting entirely independently of each other and are completely
disassociated with respect to the employment of a particular employee.” Id. §
791.2(a). A joint employment relationship may exist, however, if the putative
joint employers are not completely disassociated with respect to the
employment of a particular worker. See id. §§ 791.2(a)(b). Determining
whether two entities jointly employ a particular worker involves the same
application of the Herman/Zheng factors as is required to determine whether
a single entity is the employer of a worker. See Severin v. Project OHR, Inc.,
2011 WL 3902994, at *6–7 (S.D.N.Y. Sept. 2, 2011); Diaz v. Consortium for
Worker Educ., Inc., 2010 WL 3910280, at * 2–4 (S.D.N.Y. Sept. 28, 2010).
Paz, 2012 WL 121103, at *5. “New York Labor Law embodies the same standards for
joint employment as the FLSA.” Chen v. St. Beat Sportswear, Inc., 364 F. Supp.2d 269,
278 (E.D.N.Y.2005) (citing cases).
Crediting the assertions made in Richard Davis’s affidavit, as the Court must do on
this motion, Plaintiff has not established his entitlement to summary judgment finding that
Woodland Trust / Woodland Commons, LLC and Turtle Rock Trust were joint employers.
According to Davis, Plaintiff elected what work he wanted to do at Turtle Rock
Apartments, set his own fee, and determined his own profit from the work he decided to
undertake. Although Plaintiff asserts that this was not the situation, the receipt of federal
tax Form 1099-MISC statements for the years that Plaintiff contends that he was an hourly
15

employee at Turtle Rock Apartments, together with Davis’s affidavit, provides sufficient
evidence to create a question of fact on this issue. Thus, this portion of the motion is
denied.
3.

Whether Plaintiff was a Full Time Employee or an Independent
Contractor for Defendants

Lastly, Plaintiff argues that he is entitled to summary judgment finding that he was
not a salaried employee at Woodland Commons, that he was not an independent
contractor at Turtle Rock Apartments, and that he was a full time employee of the “joint
employers” Woodland Trust / Woodland Commons LLC and Turtle Rock Trust.
In order to be considered a “salaried” employee pursuant to the FLSA, the
employee must receive the same pay each period “which amount is not subject to
reduction because of variations in the quality or quantity of work performed.” 29 C.F.R. §
541.602. With regard to salaried employees, New York Labor Law overtime claims are
analyzed similarly to FLSA claims. Wong v. Hunda Glass Corp., 2010 WL 2541698, at *2
(S.D.N.Y. June 23, 2010). Defendants have asserted that Plaintiff did not work over 40
hours in any week at Woodland Commons and was paid the same amount each biweekly
period depending on the level of agreed upon compensation for the work he was expected
to perform at the time.12 Plaintiff concedes that he received the same amount each
biweekly period as Defendants contend, see Pl. Aff, ¶¶ 28-42, but argues that his
classification as a salaried employee originally paid $400.00 for a two week period is “not

12

According to Defendant, when Plaintiff first started, he was paid $400.00 biweekly and this am ount
was increased to $1120.00 biweekly as his responsibilities and duties increased, but later reduced to $600.00
biweekly. Plaintiff concedes he was paid these am ounts, but contends that the am ounts represented only a
portion of his com bined hourly wages for his work at W oodland Com m ons and Turtle Hill Apartm ent, and no
part of the paym ent was calculated at the tim e and a half rate.

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practicable.” Pl. Mem. L. p. 20.
For salaried employees not deemed “exempt” under 29 U.S .C. § 213(a)(1), an
overtime rate is calculated by “dividing the employee's weekly compensation by the
number of hours for which that compensation is intended.” Wong, 2010 WL 2541698, at
*2. “Unless the contracting parties intend and understand the weekly salary to include
overtime hours at the premium rate,” the law presumes that the weekly salary covers 40
hours. Id. Whether the arrangement that Plaintiff had at Woodland Commons was
impracticable does not entitle Plaintiff to judgment, and it remains a question of fact as to
whether he performed work in a weekly period that would entitle him to more
compensation than he received biweekly. Plaintiff’s motion for judgment on this issue is
denied.
To determine whether Plaintiff was an employee or a independent contractor while
working at Turtle Rock Apartments, the Court considers five factors from the economic
realities test :
(1) the degree of control exercised by the employer over the worker[], (2) the
worker[‘s] opportunity for profit or loss and [his] investment in the business,
(3) the degree of skill and independent initiative required to perform the
work, (4) the permanence and duration of the working relationship, and (5)
the extent to which the work is an integral part of the employer's business.
Brock v. Superior Care, Inc., 840 F.2d 1054, 1058–59 (2d Cir.1988)(citing United States v.
Silk, 331 U.S. 704, 716 (1947)).
Defendants assert that Plaintiff took the independent initiative to bid on the jobs at
Turtle Rock Apartments which he believed he had the skill and ability to perform;
submitted bids only for the work projects he wanted to perform and declined others; and
retained the ability to earn a profit from his work depending on his bid and the nature of
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the work on each job. Defendants further argue that the work Plaintiff performed at Turtle
Rock Apartment, while an integral part of the employer's business, was also performed by
other contractors. In light of these facts, accepted as true for purposes of the motion,
summary judgment seeking a designation of Plaintiff as an employee for Turtle Rock Trust
and not an independent contractor is denied.
Finally, for the reasons discussed above, Plaintiff’s motion for a judgment finding
that Woodland Trust / Woodland Commons, LLC and Turtle Rock Trust were joint
employers is denied.
b.

Defendants’ Motion for Summary Judgment

Defendants’ motion for summary judgment is, when boiled to it core, an argument
that Plaintiff’s factual contentions of working in excess of forty hours a week for the “joint
employers” Woodland Trust / Woodland Commons, LLC and Turtle Rock Trust are
without credence. However, the function of the Court on a motion for summary judgment
is to determine whether material questions of fact exist, not to decide issues of credibility.
See Gorman–Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 558
(2d Cir. 2001) (“The function of the district court in considering the motion for summary
judgment is . . . only to determine whether there is a genuine issue to be tried.”). Based
on the allegations in Plaintiff’s affidavit, which the Court must accept as true for purposes
of Defendants’ motion, the Court finds no reason to dismiss any part of Plaintiff’s action.
Therefore, Defendants’ motion is denied.

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III.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion for partial summary judgment

[dkt. # 26] and Defendants’ cross-motion for summary judgment [dkt. # 34] are DENIED.

IT IS SO ORDERED
Dated: March 19, 2012

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