Mack v. Talasek, 6:09-cv-00053

Plaintiffs allege they were entitled minimum and overtime wages under the FLSA against Talasek, their former gate-guard employer.
Talasek moved for summary judgment asserting Plaintiffs were independent contractors, not employees.
Magistrate Judge Johnson issued a M&R recommending summary judgment for Talasek on the independent-contractor issue.
Plaintiffs objected to the M&R; the district court reviewed de novo portions to which objections were filed.
The court sustained some objections and overruled others, and adopted the M&R in part.
The court ultimately granted Talasek’s motion for summary judgment and held Plaintiffs were independent contractors for FLSA purposes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Contractual designation of independence	Mack’s contract with Gate Guard Services, not Talasek, identified her as an independent contractor.	Independent-contractor status is determined by economic reality, not sole contract labeling.	Objection 1 sustained
Degree of control over work	Plaintiffs had significant control over shift timing and could work elsewhere.	Court should consider restrictions and actual control over daily duties.	Objection 2 sustained or overruled as indicated in opinion? (court found control factors supported IC status; in the record, Objection 2 was OVERRULED)
Relative investments by parties	Plaintiffs’ investments were limited and Talasek’s investments were substantial.	Investments by employer and ability to control costs matter for employee/contractor status.	Objection 3 sustained
Skill and initiative	Jobs required no special training and were performed with little supervision.	Lack of training supports contractor status but other factors weigh in.	Objection 5 sustained
Permanency and job-by-job basis	Employment was irregular and not guaranteed beyond shifts; relationships were temporary.	Temporary, project-by-project work and short durations indicated contractor status.	Objection 6 sustained

Mr. W Fireworks, Inc. v. Hopkins, 814 F.2d 1042 (5th Cir. 1987) (economic reality factors guide status, not mere capability to work elsewhere)
Herman v. Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 299 (5th Cir. 1990) (control based on restrictions and ability to work for others; not just actual conduct)
Thibault v. Bellsouth Communications, Inc., 612 F.3d 843 (5th Cir. 2010) (employee vs independent contractor; profits depend on cost control)
Carrell v. Sunland Constr., Inc., 998 F.2d 330 (5th Cir. 1993) (contracts and customer-directed work influence status; cost control matters)
Cromwell v. Driftwood Electric Contractors, Inc., 348 F.App’x 57 (5th Cir. 2009) (long, fixed schedules weighing against contractor status; industry context relevant)
Hopkins v. Cornerstone America, 545 F.3d 338 (5th Cir. 2008) (emphasizes consideration of industry characteristics and economic realities)