Williams, Patricia v. WI Dept of Workforce Development

Filing 64

ORDER that plaintiff Patricia Williams's claim under the Fair Labor Standards Act will be allowed to proceed to trial. The parties may have until May 1, 2015 to file trial briefs as described in this order. If either side wishes to file a response, they may have until May 15, 2015, to do so. Signed by District Judge Barbara B. Crabb on 4/3/2015. (jef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PATRICIA WILLIAMS,
OPINION AND ORDER
Plaintiff,
13-cv-794-bbc
v.
WISCONSIN DEPARTMENT OF
WORKFORCE DEVELOPMENT,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - From 2010 to 2012, plaintiff Patricia Williams worked as a vendor for defendant
Wisconsin Department of Workforce Development.

Vendors are contracted by the

department to provide job development and job coaching services. In an order dated
February 25, 2015, dkt. #60, I granted defendant’s motion for summary judgment with
respect to plaintiff’s claim under the Equal Pay Act, but I did not resolve plaintiff’s claim
under the Fair Labor Standards Act because defendant had not included that claim in its
summary judgment motion. However, because the scope of FLSA claim was unclear, I
directed plaintiff to file supplemental materials to address that issue before deciding whether
that claim could proceed to trial.
In her supplement, plaintiff says that defendant violated two provisions in the FLSA.
First, she says that defendant violated 29 U.S.C. § 206 by failing to pay her the minimum
wage for the hours that she worked over the course of two years. Second, plaintiff says that
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defendant violated 29 U.S.C. § 207 by failing to pay her one and a half times the regular rate
when she worked more than 40 hours a week, which was every week. These allegations are
sufficient to state a claim under the FLSA.
In the February 25 order, I stated that
if plaintiff has a viable legal theory under the FLSA, I may consider the
question whether plaintiff qualifies as an “employee” under the FLSA. As
noted above, the parties have briefed the question whether plaintiff was an
"employee" under the EPA and the parties seem to agree that the standard is
identical with respect to both statutes. If plaintiff believes that the meaning
of "employee" is not identical under both statutes, she should raise that issue
in her supplemental materials.
Dkt. #60 at 8. Plaintiff acknowledges in her supplement that an “employee” is defined the
same way under both the EPA and the FLSA, so I may consider defendant’s argument from
its summary judgment materials that plaintiff was an independent contractor rather than an
employee.
The protections of the FLSA apply only to an “employee,” 29 U.S.C. §§ 206 and 207,
which includes “any individual employed by a State.” 29 U.S.C. § 203(e)(2)(C). However,
the statute does not describe the factors necessary for work to qualify as employment. In the
absence of a specific definition, courts have had to come up with their own. In doing so, the
Court of Appeals for the Seventh Circuit has emphasized that the definition of employee
should be “broad and comprehensive in order to accomplish the remedial purposes of the
Act.” Secretary of Labor, U.S. Dept. of Labor v. Lauritzen, 835 F.2d 1529, 1534-35 (7th
Cir. 1987). For this reason, “[c]ourts . . . have not considered the common law concepts of
‘employee’ and ‘independent contractor’ to define the limits of the Act's coverage.” Id.

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Thus, an individual may qualify as an employee even if she is paid by the job performed
rather than by hours worked. Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772-73
(7th Cir. 2013) (“These technicians are more like independent contractors than employees;
they spend the work day installing and repairing satellite equipment at customers' homes and
are paid on a piece-rate basis—so many dollars per job—rather than being paid a fixed hourly
wage. Nevertheless they are within the Act's broad definition of (covered) employees.”).
In determining whether an individual is an employee under the FLSA, the question
is whether, “as a matter of economic reality [the plaintiff is] dependent upon the business
to which [she] render[s] service.” Id. In other words, “if individuals are in business for
themselves, they are not employees; if they are economically dependent on and within the
control of the employer, they are employees.”

7 Darrell R. VanDeusen Labor and

Employment Law § 177.02[1] (2015). The court of appeals has set forth six, nonexclusive
factors to guide a determination whether an individual is an employee: (1) the nature and
degree of the alleged employer's control as to the manner in which the work is to be
performed; (2) the alleged employee's opportunity for profit or loss depending upon his
managerial skill; (3) the alleged employee's investment in equipment or materials required
for his task or his employment of workers; (4) whether the service rendered requires a special
skill; (5) the degree of permanency and duration of the working relationship; and (6) the
extent to which the service rendered is an integral part of the alleged employer's business. Id.
at 1535. See also Estate of Suskovich v. Anthem Health Plans Of Virginia, Inc., 553 F.3d
559, 565 (7th Cir. 2009) (“FLSA cases . . . are decided utilizing a broader definition of

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employee than the common law, and determine whether an arrangement is an employment
or independent contractor relationship with a six-factor test to determine the ‘economic
reality’ of the situation.”).
In its summary judgment brief, defendant notes the six-factor test, but it does not
discuss any of the factors individually. Instead, it cites a number of proposed facts for the
proposition that “the totality of factors” supports a finding that plaintiff was not an
employee. Dft.’s Br., dkt. #47, at 6. In particular, defendant says that plaintiff’s pay was
determined by the number of clients she had and the services she provided rather than by
a salary or an hourly rate; she was allowed to work on other projects outside the department;
she worked out of her own home or office and saw her clients “whenever and wherever she
wished”; she determined her own workload and schedule; she was allowed to “use her own
judgment about how she would perform her work”; and she did not receive any training from
the department. Id. at 6-7.
In her opposition brief, plaintiff addresses each of the six factors and disputes many
of defendant’s proposed facts. For example, with respect to the degree of control exerted
by defendant, plaintiff cites a seven-page document called “technical specifications” setting
forth numerous requirements and guidelines for vendors in conducting their work. Dkt.
#55-3. Some of these requirements are quite specific, explaining everything the vendor
should do when she meets with a client and the information she needs to gather and report
to the department. Estate of Suskovich, 553 F.3d at 566 (“[T]he question is whether the
details of the work were in the control of [the defendant].”).

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She cites another document called “agreement for services,” which imposes a number
of additional requirements related to reporting and “performance outcomes.” Dkt. #55-2.
In addition, the document states that the department “will review performance outcomes
and require appropriate action as needed.” Id. Another part of the document requires
plaintiff to “accept all referrals made for all consumers authorized.” Id. Plaintiff disputes
defendant’s allegation that plaintiff was permitted to meet clients wherever she wanted,
stating that the department instructed her where to meet. Plt.’s Resp. to Dft.’s PFOF ¶ 15,
dkt. #57.

Finally, she cites a document in which the department’s division of

unemployment insurance concluded that plaintiff was an employee under Wisconsin law
because of the amount of control the department had over the way she performed her job.
Dkt. #55-1. Although the division’s conclusion is not binding on this court, it is telling that
even the department itself has classified plaintiff as an employee for some purposes.
With respect to the other factors, plaintiff says that the department supplied her the
computer, printer and software necessary to do her job, Plt.’s Resp. to Dft.’s PFOF ¶ 16, dkt.
#57, provided trainings and annual performance reviews, id. at ¶ 12, and limited her ability
to do other work by restricting the potential clients she could solicit, id. at ¶ 17.

In

addition, she says that she had one-year contracts with the department and argues that the
work she did was integral to the department’s business.
In its reply brief, the department says little in response to the plaintiff’s evidence and
argument, but simply summarizes its argument from its opening brief, again failing to
address any of the six factors. Under these circumstances, I conclude that plaintiff has raised

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a genuine issue of material fact on the question whether she was defendant’s employee, so
I am allowing plaintiff’s FLSA claim to proceed to trial.
Because many of the issues surrounding the FLSA claim have not been fleshed out by
the parties, it would be helpful for the parties to submit trial briefs along with their pretrial
materials. In those briefs, the parties should identify with specificity the factual and legal
issues that they believe need to be resolved at trial, including issues about potential defenses
and the appropriate burden of proof with respect to issues such as record keeping. In
addition, they should describe the evidence they will use to prove their claims and defenses.
In particular, plaintiff should explain how she is prepared to prove that she was not paid a
minimum wage or given overtime pay. For example, she should identify which weeks she
believes she was not paid a minium wage and provide the basis for her belief. Finally, the
parties should explain in their brief why they included each question they have proposed for
inclusion in their proposed special verdict forms and how each substantive proposed jury
instruction relates to a question or questions on the verdict form.
In closing, I would be remiss if I did not acknowledge the potential difficulty that
plaintiff faces in proving her claim at trial. Plaintiff alleges that she worked from 7 a.m. to
11 p.m. seven days a week for two years, Plt.’s Aff. ¶ 15, dkt. #54, which is 112 hours a
week. It seems highly implausible that plaintiff could sustain a schedule that required her
to work 16 hours a day, every day, for two years, a feat that would seem to require
superhuman stamina. Did plaintiff never once take a day off, even for illness? Did she not
spend any time with her family and friends? When did she run basic errands? How did she

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sustain that schedule for so long without collapsing in complete exhaustion? Plaintiff will
have to address questions such as these at trial, particularly because defendant’s reason for
terminating plaintiff’s contract involved her attempts to solicit more clients, which seems
inconsistent with an allegation that she was working around the clock. However, because
defendant did not seek summary judgment on plaintiff’s FLSA claim and a court cannot
resolve credibility issues before trial, I cannot dismiss plaintiff’s claim simply because it
seems implausible.

ORDER
IT IS ORDERED that
1. Plaintiff Patricia Williams’s claim under the Fair Labor Standards Act will be
allowed to proceed to trial.
2. The parties may have until May 1, 2015 to file trial briefs as described in this
order. If either side wishes to file a response, they may have until May 15, 2015, to do so.
Entered this 3d day of April, 2015.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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