Fred CROMWELL; Jeff Bankston, Plaintiffs-Appellants v. DRIFTWOOD ELECTRICAL CONTRACTORS, INC.; AT&T Communications-East, Inc.; BellSouth Telecommunications Inc., Defendants-Appellees.
No. 09-60212
United States Court of Appeals, Fifth Circuit.
Oct. 12, 2009.
Summary Calendar.
Sanderson‘s knowledge of the violation is also substantially supported by the record. Many of the ALJ‘s findings, such as the leaning tiers of chicken, were in plain view, and employees regularly entered the freezer facility, both to work there and to inspect it. Sanderson managers and supervisors testified that they were aware of fallen pallets in the past; their knowledge is imputed to their employer.
Further, the ALJ‘s conclusion that Sanderson employees were exposed to the hazard is amply supported. Employees regularly entered the freezer units and worked among the pallets that were found to be unsafely stored. Even if the pallets only fell when struck by forklifts, as Sanderson contends, the ALJ found the company‘s rule requiring employees to stay away from forklifts moving pallets to be too vague to adequately remove them from the wide “zone of danger” of falling pallets. This conclusion was supported by employee testimony that the exact meaning of the rule was unclear.
Finally, there is substantial evidence to support the ALJ‘s rejection of Sanderson‘s affirmative defense of unpreventable employee misconduct. That defense requires the employer to show (1) that it has established work rules designed to prevent the violation; (2) that it has adequately communicated these rules to its employees; (3) that it has taken steps to discover violations; and (4) that it has effectively enforced the rules when violations have been discovered. W.G. Yates & Sons Const. Co. v. Occupational Safety & Health Review Comm‘n, 459 F.3d 604, 609 (5th Cir.2006). Sanderson focuses its argument on the policy McDonald violated by attempting to repair a rack without first clearing it of pallets. This argument is unavailing, however, because the OSHA citation was for unsafe storage, not for unsafe repair procedures; the storage violation would have existed even if McDonald had not worked on the racks improperly.
IV.
For the reasons stated above, the petition for review is DENIED and the order of the OSHRC is AFFIRMED.
Mark Jeffrey Levine, Levine & Associates, Bellaire, TX, Randall Elliott Day, Copeland, Cook, Taylor & Bush, P.A., Ridgeland, MS, for Defendants-Appellees.
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The plaintiffs-appellants, Fred Cromwell and Jeff Bankston, filed this
Cromwell and Bankston provided cable splicing services for Driftwood for approximately eleven months, and were required to work twelve-hour days, thirteen days on and one day off. They were paid a fixed hourly wage for their work. BellSouth was Driftwood‘s customer on the restoration project. AT&T appears to have had nothing to do with the facts of this case. Cromwell and Bankston reported to BellSouth‘s location every morning to receive their assignments, unless they had not completed their jobs from the prior workday, in which case they were permitted to check in by phone. Cromwell and Bankston were given prints describing the type of work that needed to be performed for each assignment and were instructed by BellSouth supervisors to follow certain
Cromwell and Bankston provided their own trucks, testing equipment, connection equipment, insulation equipment, and hand tools, totaling over $50,000 for Cromwell and approximately $16,000 for Bankston, while BellSouth supplied materials such as closures and cables. Cromwell and Bankston were responsible for their own vehicle liability insurance and employment taxes, but Driftwood provided workers’ compensation insurance and liability insurance for Cromwell and Bankston‘s work.
To determine if a worker qualifies as an employee under the FLSA, we focus on whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself. Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir.2008). To aid in that inquiry, we consider five non-exhaustive factors: (1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker‘s opportunity for profit or loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship. Id. No single factor is determinative. Id. The ultimate conclusion that an individual is an employee within the meaning of the FLSA is a legal, and not a factual, determination. Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1045 (5th Cir.1987); see also Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1327 & n. 24 (5th Cir.1985) (citing and reconciling cases). Therefore, “we review the determination that [plaintiffs] were not employees as we review any determination of law,” which is de novo. Donovan v. American Airlines, Inc., 686 F.2d 267, 270 n. 4 (5th Cir.1982). Because there are no disputes of material fact, we also conclude that the district court was correct to resolve the matter on summary judgment.
The defendants-appellees argue that the facts of this case are similar to those in Carrell v. Sunland Const., Inc., in which we held that a group of welders were independent contractors under the FLSA. 998 F.2d 330 (5th Cir.1993). In Carrell, we noted that several facts weighed in favor of employee status, including that the defendant dictated the welders’ schedule, paid them a fixed hourly rate, and assigned them to specific work crews. Id. at 334. However, we held that the welders were independent contractors because the welders’ relationship with the defendant was on a project-by-project basis; the welders worked from job to job and from company to company; the average number of weeks that each welder worked for the defendant each year was relatively low, ranging from three to sixteen weeks; the welders worked while aware that the defendant classified them as independent contractors, and many of them classified themselves as self-employed; the welders were highly skilled; the defendant had no control over the methods or details of the welding work; the welders performed only welding services; the welders supplied their own welding equipment; and the welders’ investments in their welding machines, trucks, and tools averaged $15,000 per welder. Id.
In Carrell, we distinguished our prior decision in Robicheaux v. Radcliff Material, Inc., 697 F.2d 662 (5th Cir.1983), in which we held that a group of welders were employees under the FLSA, on the grounds that the welders in Robicheaux worked a substantial period of time exclusively with the defendant in that case,
The facts of this case lie somewhere between those of Carrell and Robicheaux. Similar to the facts in Carrell, the plaintiffs in this suit are highly skilled and perform only services requiring the use of those skills, the defendants here did not control the details of how the plaintiffs performed their assigned jobs, and the plaintiffs provided their own trucks, equipment, and tools, in which they had invested substantial sums. However, there are some significant dissimilarities between the facts in the instant case and the facts in Carrell, such that the facts of this case are not as readily distinguishable from those in Robicheaux. The plaintiffs in this case worked full-time exclusively for the defendants for approximately eleven months, within the time range that the Robicheaux welders had worked for the defendant in that case. The plaintiffs in this case did not have the same temporary, project-by-project, on-again-off-again relationship with their purported employers as the plaintiffs in Carrell did with their purported employer. The defendants-appellees argue that Cromwell and Bankston‘s work—restoring damaged telecommunications lines along the Mississippi Gulf Coast in the wake of Hurricane Katrina—was by nature temporary, but “courts must make allowances for those operational characteristics that are unique or intrinsic to the particular business or industry, and to the workers they employ.” Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1054 (5th Cir.1987) (“[W]hen an industry is seasonal, the proper test for determining permanency of the relationship is not whether the alleged employees returned from season to season, but whether the alleged employees worked for the entire operative period of a particular season.“). Thus, the temporary nature of the emergency restoration work does not weigh against employee status.
It is common in FLSA cases that “there are facts pointing in both directions” regarding the issue of employee status, see Herman v. Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 299, 305 (5th Cir.1998) (quoting Carrell, 998 F.2d at 334), but the facts in this case truly appear to be nearly in equipoise. However, on balance, we believe that, as a matter of economic reality, Cromwell and Bankston were economically dependant upon Driftwood and BellSouth, and were not in business for themselves. The facts of this case simply appear closer to those in Robicheaux than in Carrell. The most significant difference between the facts in those cases, in terms of the economic reality of whether the plaintiffs were economically dependant upon the alleged employer, was