Plaintiffs-Appellants (“Plaintiffs”), black-car drivers in the greater New York City area, brought this action in the United States District Court for the Southern District of New York, asserting claims against Defendants-Appellees (“Defendants”), owners of black-car “base licenses” and affiliated entities, pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201
et seq.,
and the New York State Labor Law (“NYLL”), N.Y. Lab. Law § 650
et seq.,
for,
inter alia,
unpaid overtime. The district court (Furman,
Judge),
after conditionally certifying a collective action under the FLSA, granted Defendants’ motion for summary judgment on both the FLSA and NYLL claims as to both the named and opt-in Plaintiffs, concluding that “as a matter of law, Plaintiffs are properly classified as independent contractors rather than employees” for purposes of both statutes.
Saleem v. Corp. Transp. Grp., Ltd.,
Background
I. Facts 2
Plaintiffs are black-car drivers in the tristate area who owned or operated black-car franchises and were affiliated with Defendants. 3 Six Defendants (collectively, “Franchisor Defendants”) each own a “base license” that allows them to operate a black-car dispatch base in New York City, and to sell franchises to individual drivers. 4 See 35 R.C.N.Y. § 59A-03(c). The remaining three Defendants are various incarnations of the “Corporate Transportation Group” (collectively, “CTG”), which provides administrative support for the operation of the Franchisor Defendants’ dispatch bases (as well as for 126 other for-hire vehicle enterprises) by handling, inter alia, billing, referral, payment, bookkeeping, accounting, voucher processing, and dispatching. 5 The Franchisor Defendants and CTG operate out of a single facility in Brooklyn and constitute “a single integrated enterprise and/or joint employer for the purposes of the [FLSA].” Joint Appendix [“J.A.”] 1317. Among the approximately 70 people employed in CTG’s dispatch unit at the time relevant here, 40 were in billing, six or seven were in customer service, five were in driver relations, and at least two were in sales. 6 There were roughly 700 black cars affiliated with the Franchisor Defendants’ dispatch bases and operating under the CTG umbrella. CTG’s clients were primarily corporate entities, such as Deutsche Bank and Bank of America.
The named Plaintiffs rented or purchased their franchises directly from the Franchisor Defendants or, in some cases, from other franchisees.
7
Plaintiffs who rented franchises paid $130 to $150 per week, while Plaintiffs who purchased their franchises directly from a Franchisor Defendant did so pursuant to franchise agreements, which required them to pay franchise fees ranging from a nominal amount (or even nothing) to as much as $60,000. The franchise agreements also required
Plaintiffs’ franchise agreements describe the nature of the relationship between franchisor and franchisee as follows:
Franchisee is not an employee or agent of Franchisor, but merely a subscriber to the services offered by Franchisor. Franchisee shall at all times be free from the control or direction of Franchisor in the operation of Franchisee’s business, and Franchisor shall not control, supervise or direct the services to be performed by Franchisee.
J.A. 732. Each franchise agreement also contains a “non-compete” provision which prohibited CTG-affiliated drivers from driving CTG customers “without processing payment for such services through CTG.” J.A. 3477-79. Failure to comply with this and other terms was grounds for termination of the franchise. Significantly, however, the franchise agreements did not prohibit drivers from transporting non-CTG customers for a competitor black-car company, or independently, during their affiliation with CTG. 8
The franchise agreements also required that drivers comply with “Rulebooks”— manuals setting out certain standards of conduct — specific to each Franchisor Defendant. 9 The Rulebooks forbid, for instance, harassing customers or other drivers and submitting fraudulent vouchers. The Rulebooks also include a dress code, which required drivers to dress neatly in specified business attire, as well as guidelines for keeping vehicles clean. Drivers were not required to wear a uniform, however, or to mark their cars with insignia denoting an affiliation with the Defendants.
The Rulebooks were enforced by each Franchisor Defendant’s Security Committee, each of which was composed entirely of drivers who served elected terms. Security Committees could hold hearings on complaints and suspected violations. If a Security Committee determined that a driver had broken a rule, it could impose a monetary penalty on the driver, temporarily suspend the driver, or even terminate the driver’s franchise agreement. Although it is undisputed that drivers elected the members of the Security Committees, the parties dispute whether CTG exercised influence over the Committees.
During their affiliation with the Defendants, Plaintiffs, like other drivers in. the CTG network, possessed considerable autonomy in their day-to-day affairs. Drivers could, for example, choose among three principal ways of securing fares for driving CTG customers. First, they could wait in a physical queue of cars outside certain high-volume CTG clients’ businesses. Second, they could elect to drive under a CTG contract with the New York City Metropolitan Transport Authority (“MTA”),
Drivers also determined when and how often to drive, and the record reflects that they worked vastly different amounts of time, without providing any notice to Defendants. 12 Plaintiffs likewise chose which area in which to work, and they were at liberty to — and did — accept or decline jobs that were offered. 13 Significantly, Plaintiffs also could — and did — drive for dispatch bases other than the one with which they were affiliated, and they were thus free to shift as they chose during the workday from one dispatch service to another. Most of the named Plaintiffs drove for other black-car companies regularly, and some earned substantial sums as a result. 14 Some drivers also transported — and were paid directly by — customers with whom they had made individual arrangements, and others, though it was contrary to TLC regulations, see 35 R.C.N.Y. § 59B-25(a), picked up street hails. 15
II. Procedural History
On November 19, 2012, Plaintiffs Ma-zhar Saleem and Jagjit Singh filed a complaint in district court, seeking to recover unpaid overtime and other wages under the FLSA and the NYLL on behalf of a class of similarly situated drivers. On June 17, 2013, the district court conditionally certified a collective action pursuant to Section 216(b) of the FLSA, 29 U.S.C. § 216(b), and approved a notice to be sent to potential opt-in plaintiffs. The court subsequently denied class certification of their NYLL claims, a determination not before us on appeal.
Saleem v. Corp. Transp. Grp., Ltd.,
No. 12 CIV. 8450(JMF),
On September 16, 2014, Judge Furman granted Defendants’ motion for summary judgment and denied Plaintiffs’ motion for partial summary judgment as to both the named Plaintiffs and those Plaintiffs who had opted into the collective action.
Sa-leem,
On January 6, 2015, Plaintiffs timely appealed.
Discussion
I.
We review the district court’s grant of summary judgment
de novo,
and we will affirm only if the evidence, when viewed in the light most favorable to the party against whom it was entered, demonstrates that there is no genuine issue as to any material fact and that judgment was warranted as a matter of law.
Barfield,
The FLSA defines an “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). “An entity ‘employs’ an individual under the FLSA” if it “ ‘suffer[s] or permit[s] that individual to work.’ ”
17
Zheng v. Liberty Apparel Co.,
Our case law has identified certain factors, first set out in
Silk,
II.
Upon
de novo
review, “even when the historical facts and the relevant factors are viewed in the light most favorable” to Plaintiffs,
id.
at 144, and despite the broad sweep of the FLSA’s definition of “employee,”
Darden,
A. Affiliation with CTG
From the start, Plaintiffs were “driver-owners” who made significant decisions regarding the operation of their small businesses.
Silk,
The franchise agreements’ termination provisions also are indicative of Plaintiffs’ independence. While Plaintiffs could reassess their choice to affiliate with CTG (not to mention the nature of that affiliation) and “terminate the [franchise] agreements” as they pleased,
21
Saleem,
In addition, each of Plaintiffs’ agreements also designated them as independent contractors, and some Plaintiffs formed corporations to operate their franchises. “Though an employer’s self-serving label of workers as independent contractors is not controlling,”
Superior Care,
B. Entrepreneurial Opportunities
The fact that Plaintiffs could (and did) work for CTG’s business rivals and transport personal clients while simultaneously maintaining their franchises without consequence suggests, in two respects, that CTG exercised minimal control over Plaintiffs. First, on its face, a company relinquishes control over its workers when it permits them to work for its competitors. Second, when an individual is able to draw income through work for others, he is less economically dependent on his putative employer. This lack of control, while not dispositive, weighs in favor of independent contractor status.
See, e.g., Keller v. Miri Microsystems LLC,
More specifically, Plaintiffs here operated “business organization^] that could or did shift as a unit from one [car-service] to another,” suggesting Defendants did not exercise significant control.
Rutherford Food Corp. v. McComb,
To be clear, pursuant to the economic reality test, “it is not what [Plaintiffs]
could
have done that counts, but as a matter of economic reality what they actually
do
that is dispositive.”
Brock v. Mr. W Fireworks, Inc.,
Second, it is undisputed that some Plaintiffs regularly drove personal clients. An-jum Ali, for example, had a repeat, non-CTG customer who first hailed him in 2010 and later arranged for pick-up in various places in New York City by calling Ali at his home number. 25 Jose Solorzano, for his part, also had one personal client for eight to ten years, 26 and Avneet Koura was contacted directly “[o]nee or twice a week” by repeat personal clients between 2006 and 2008. J.A. 404-05. Plaintiffs made investments to build these relationships, too. Some created business cards describing their services, while others placed advertisements. 27
Third, for the sake of completeness, many Plaintiffs also picked up passengers via street hail, despite TLC’s (apparently under-enforced) prohibition of this practice. See 35 R.C.N.Y. § 55-19. In fact, one driver admitted doing so while “logged in” to the CTG app and waiting in the dispatch queue. As with individual, non-CTG clients, street hail passengers paid in cash or via independent merchant accounts, rather than through the CTG voucher system.
Moreover, these alternate means of generating revenue aside, Plaintiffs also wielded considerable independence and discretion when working under CTG’s umbrella. To offer rides to CTG clients, Plaintiffs could join a physical queue outside of a high volume client business, offer assistance to disabled customers seeking prearranged rides pursuant to CTG’s contract with the MTA, or book into CTG’s dispatch system. Further, some Plaintiffs who owned franchises chose not to drive at all and, instead of letting their franchises lie dormant, permitted other individuals to drive for them.
28
See Silk,
Accordingly, far from a circumstance, like that in
Superior Care,
where the individuals seeking “employee” classification “depended entirely on [the putative employer’s] referrals to find job assignments,”
C. Investment and Return
Regardless whether they actually purchased a franchise, the record also shows that Plaintiffs invested heavily in their driving businesses — another indication that they were “in business for themselves.”
Superior Care,
In disclosures to the New York State Attorney General, each Franchisor Defendant presented an “estimated initial investment” to be expected in acquiring a franchise.
See, e.g.,
J.A. 1817-20. One Franchisor Defendant estimated expenses for an individual purchasing a franchise as totaling between $68,838 and $89,038.
30
J.A. 1817-20. Such sums constitute a sub
Because Plaintiffs were free under their franchise agreements to branch out on their own, or to drive for other, competing black-car companies, the degree to which these expenditures yielded returns was a function not only of CTG’s network, but also of the business acumen of each Plaintiff, who thus had significant control over “essential determinants of profits in [the] business.”
33
Dole,
D. Schedule Flexibility
The ability to choose how much to work also weighs in favor of independent contractor status.
See Herman,
After purchasing or leasing a franchise and securing a suitable vehicle, Plaintiffs set their own schedules, selecting when, where, and how often to work (if at all). Defendants provided no incentive structure for Plaintiffs to drive at certain times, on particular days, or in specific locations, leaving the decision to work “to the whims [and] choices” of its drivers.
Dole,
Here, as always with the “economic reality” inquiry, it is not merely that Plaintiffs nominally could set their own schedules, but also that they actually did so. Id. at ■808. Some Plaintiffs took vacations for weeks at a time without ever notifying Defendants. Anjum Ali, for example, took five weeks off to travel abroad, and regularly took off long weekends. Mazhar Sa-leem took a three-to-four month vacation in 2010 and vacationed for over two months in 2011. Jose Cabrera “t[ook] the entire year of 2011 off’ from driving for Defendants, and resumed doing so in 2012. J.A. 3393 ¶ 148.
On the days when Plaintiffs did work, their hours varied — again, based on their own preferences, and without Defendants making any attempt to coordinate schedules or set lower or upper limits on working hours.
Cf. Dole,
Plaintiffs also exercised considerable discretion in choosing when and where to drive.
Superior Care,
Additionally, the record demonstrates that, as a matter of economic reality, Plaintiffs accepted and rejected (despite the penalty of being placed at the end of the queue) varying numbers of job offers, a fact indicative of the discretion and independence associated with independent contractor status.
Cf. Berger Transfer & Storage,
Plaintiffs’ flexible work schedules and considerable control over when, where, and in what circumstances to accept a CTG fare not surprisingly resulted in wide disparities in gross earnings for rides provided through Defendants.
36
For example, while Jagjit Singh grossed more than $170,000 in 2009 and 2011, J.A. 3433, An-jum Ali earned between $38,928 and $42,445 a year from 2010 through 2012, J.A. 3431. These differences only underscore the economic reality, namely that the “work force [was] composed of individuals who came and went as they alone pleased,”
Dole,
In the language of the
Silk
factors, these undisputed facts demonstrate that Defendants did not “exercise control,” and that Plaintiffs demonstrated “initiative.”
Superior Care,
These circumstances are readily distinguishable from those in which courts have identified an employer-employee relation. In
Superior Care,
for instance, the employer “limited working hours to 40 per week where nurses claimed they were owed overtime,”
Instead, this case resembles those in which we and other Circuits have recognized independent contractor status. In
Kirsch v. Fleet Street,
for example, we upheld a jury finding that the plaintiff was an independent contractor when,
inter alia,
he “was not required to spend time in the company’s offices [and] was free to set his own schedule and take vacations when he wished.”
⅜ ⅜ ⅜
In sum, Plaintiff black-car drivers exercised their business acumen in choosing the manner and extent of their affiliation with CTG; were able to work for rival black-car services, cultivate their own clients, and pick up street hails; made substantial investments in their businesses; and determined when, where, and how regularly to work. They owned or operated enterprises which were flexible and adaptable to market conditions. In short, based on the record here, “[t]hese driver-owners [were] small businessmen.”
Silk,
III.
Plaintiffs, for their part, rely on record evidence that they contend shows that Defendants exercised control over black-car drivers, so as to make them economically dependent on CTG. Such evidence, Plaintiffs contend, creates a genuine issue as to whether Defendants exercised control over drivers such that they constituted “employees” pursuant to the FLSA.
See Anderson v. Liberty Lobby, Inc.,
Plaintiffs marshal evidence principally in support of two propositions. First, they argue that the record shows that Defendants exercised control over “all significant aspects of its black car business.”
37
Appel
Neither proposition, even viewing the evidence in the light most favorable to Plaintiffs, changes the analysis. While Defendants did exercise direct control over certain aspects of the CTG enterprise, they wielded virtually no influence over other essential components of the business; including when, where, in what capacity, and with what frequency Plaintiffs would drive. “[A]ccepting that Defendants engaged in some monitoring and discipline” with respect to Rulebook standards does not alter this picture.
Saleem,
To be clear, we note in conclusion the narrow compass of our decision. Specifically, we do not here determine that it is irrelevant to the FLSA inquiry that the Defendants provided Plaintiffs with a client base, that Defendants charged fees when Plaintiffs utilized Defendants’ referral system, or that Defendants had some involvement, if limited, in rule enforcement among franchisees. We conclude only that asséssing the totality of the circumstances here in light of each Silk factor, undisputed evidence makes clear as a matter of law that these Plaintiffs were not employees of these Defendants. In a different case, and with a different record, an entity that exercised similar control over clients, fees, and rules enforcement in ways analogous to the Defendants here might well constitute an employer within the meaning of the FLSA. Plaintiffs here, however, have raised no material issue to this effect. The district court therefore properly found them to be independent contractors as a matter of law.
Conclusion
We have considered Plaintiffs’ remaining contentions and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
. Although Plaintiffs appealed from the district court's September 24, 2014 grant of summary judgment as to their FLSA and NYLL claims, Plaintiffs' briefs on appeal make no mention of the NYLL, and instead focus exclusively on the FLSA. Accordingly, we deem Plaintiffs' NYLL claims waived for purposes of this appeal.
See Hughes v. Brick
. Except as otherwise noted, the following facts are undisputed.
. Black cars are a type of for-hire vehicle (along with livery vehicles and limousines) that provide ground transportation by prearrangement with customers. Black cars are dispatched by — and must be affiliated with— bases specific to their vehicle type. Rules of the City of New York ("R.C.N.Y.”), Tit. 35 §§ 59A-03(e), -04(h) — (i). While the rules defining livery and limousine bases do not specify who may own affiliated vehicles, black cars affiliated with a black-car dispatch base must be owned "by Franchisees of the Base or ... members of a cooperative that operates the Base.” Compare id. §§ 59A-03(b)-(c) with id. §§ 59A-03(j)-(m).
. These Defendants are NYC 2-Way International, Ltd. ("NYC 2-Way”); Allstate Private Car & Limousine ("Allstate”); TWR Car and Limo, Ltd. ("TWR”); Excelsior Car and Limo, Inc. ("Excelsior”); and Hybrid Limo Express, Inc. ("Hybrid”).
. These three Defendants are Corporate Transportation Group, Ltd.; Corporate Transportation Group International; and Corporate Transportation Group Worldwide, Inc. Individually named Defendant Eduard Slinin is the president of these companies. He and his wife, Galina Slinin, are also controlling shareholders in some of the Franchisor Defendants.
. CTG's employees, unlike Plaintiffs, are issued W-2 Forms which document their pay.
. Notably, some drivers of black-car vehicles neither owned nor rented a franchise, but instead drove for other black-car drivers who themselves owned or rented a franchise.
. While TLC regulations require that for-hire drivers be affiliated with one, and only one, dispatch base, 35 R.C.N.Y. § 59A-04(h)-(i), they may legally accept work from another dispatch base (provided certain disclosures are made to the customer), see 35 R.C.N.Y. § 5 9 A-11(e).
. The parties dispute CTG's role in formulating the rules contained within the Rulebooks.
. During the period relevant to this litigation, drivers desiring MTA work informed CTG of the block of time and the zone in which they wished to work on a given day, and CTG’s computerized dispatch system matched the drivers with available assignments. Notably, because the MTA paid less for jobs under its contract with CTG than many of CTG’s other accounts did (as set forth below), CTG was not always able to provide sufficient drivers, notwithstanding its relationship with Plaintiffs and other black-car drivers. On such occasions, CTG reached out to other companies for assistance.
. Black-car drivers signaled their availability to work by consulting the smart phone app (which permitted them to see both how many jobs were available and how many other affiliated drivers were operating in particular “zones” in the City), choosing a zone, and "booking into” it.
. Jagjit Singh, for instance, testified that he worked seven days a week, sometimes as much as 15 to 16 hours a day, J.A. 4789, while Anjum Ali typically worked about eight hours a day, from around 4:00 p.m. until approximately midnight, J.A. 3303-04.
. When a driver "logged in” to the dispatch system, he saw how many jobs were available and how many other drivers were booked into each "zone” in New York City. The driver then decided which zone to "book into.” Having chosen a zone, the driver was placed at the end of a virtual queue, where he waited until a work offer appeared on his phone. Once an offer appeared, the driver had 45 seconds to accept or decline the job. If the driver rejected the job, he would be booked out of the app for five minutes and, after booking in again, placed at the end of the queue. After accepting a job, the driver received the pickup address, passenger's name, destination, rate of the fare, and the CTG account number associated with the passenger. Even with this information in hand, however, the driver could "bail out,” i.e., decline to complete the job. After a "bailout,” the driver was not permitted to log into the dispatch system for one to three hours.
Once a driver picked up a client, he was free to choose the route to that client’s destination. When the driver completed the trip, he asked the customer to sign a voucher. The driver then dropped off the voucher at CTG's facility in Brooklyn at his or her convenience — there appears to have been no time limit — and CTG processed vouchers daily, weekly, or every three weeks, according to the driver's preference.
. Ranjit Bhullar, for instance, earned $395,081.90 driving for "Exec. Charge” from 2006 to 2008, and Malook Singh earned $206,568.71 driving for "Elite” from 2006 to 2009. J.A. 3436-38.
. Drivers generally collected payment for such services themselves, sometimes through accounts established with • credit card mer
. The district court also rejected Plaintiffs' claim that the drivers were “employees” within the meaning of the NYLL. Because the factors for determining whether an individual is an “employee” under the NYLL are similar to the
Superior Care
factors, the court referred to much of its FLSA analysis in concluding that "all five NYLL factors favor independent contractor status.”
Saleem,
. The Supreme Court has noted that the FLSA "stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.”
Nationwide Mut. Ins. Co.
v.
Darden,
. This Court has devised many such “economic reality” tests in the context of the FLSA.
See, e.g., Glatt v. Fox Searchlight Pictures, Inc.,
.In Silk, the Supreme Court addressed whether truck drivers in two consolidated cases constituted "employees” for the purpose of the Social Security Act. Silk set out the following factors as relevant to this determination:
(1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer’s business.
Superior Care,
. This caution is merited because the
Silk
factors, while helpful in identifying relevant facts, overlap to a substantial degree. For instance, at least in the abstract, the more substantial the "control” (factor one) a company asserts, the less "initiative” (factor three) it allows on the part of its workers. In addition, the same facts are often relevant to multiple
Silk
factors. In
Superior Care,
for example, we categorized the fact that the alleged employer "unilaterally dictated the nurses' hourly wage [and] limited working hours to 40 per week where nurses claimed they were owed overtime” as indicative of the extent of defendant Superior Care’s control over its workers.
. The franchise agreements did provide that drivers receive franchisors' “prior written consent ..., which consent [could] not be unreasonably withheld,” before leasing or renting a franchise. See, e.g., J.A. 3377. It is not clear whether this requirement was enforced in practice. •
. In this vein, CTG issued Plaintiffs 1099 Forms, not W-2 Forms, and Plaintiffs classified themselves as independent contractors for tax purposes and took deductions for business expenses. Likewise,- Plaintiffs did not receive health insurance, 401(k), retirement, or other bénefits.
See Kirsch v. Fleet Street, Ltd.,
. The Secretary of Labor incorrectly describes this practice as barred by TLC regulations. As Plaintiffs admit in a post-argument letter brief, TLC regulations permit black-car drivers to provide rides for other black-car companies provided certain disclosures are made to the customer. See 35 R.C.N.Y. § 59A-11(e); Ltr. from Appellants to Court (Feb. 12, 2016); cf. N.Y.C. Taxi & Limousine Comm’n, Notice of Public Hr’g and Opportunity to Comment on Proposed Rules, Amendment of For Hire Dispatch Rules, TLC-71, at unnumbered 3 (Sept. ' 12, 2014), http://rules. cityofnewyork.us/sites/default/files/proposed_ rules_pdfy’fhv_dispatch_rulesJFinal_9_12_14. pdf (noting the practice of dispatch bases to "dispatch[ ] vehicles affiliated with other bases ... without the knowledge or consent of the vehicles’ affiliated bases,” giving rise to issues "not addressed in the TLC’s rules").
. It is certainly not unheard of for an individual to maintain two jobs at the same time, and to be an "employee” in each capacity. Plaintiffs, however, unlike traditional employees, were free — -without compromising their franchises or facing adverse consequences— to divide their time as they saw fit between CTG, its competitors, and personal clients.
See Reyes v. Remington Hybrid Seed Co.,
. Ali did not turn over any of that money to CTG for processing, nor was he required to do so, since the customer was not a CTG client.
. Despite CTG rules to the contrary, Solor-zano billed this repeat CTG customer using his personal credit card merchant processing account, rather than the CTG voucher system.
. Though "customer rapport” is arguably not "an initiative characteristic,”
Mr.
W Fire
works,
.Anwar Bhatti testified that Rajeev Kumar paid him $75 per week to drive for Bhatti's franchise. Jamshed Choudhry similarly rented the use of his franchise to third parties on two' occasions for $75 per week and $130 per week, respectively.
. While "investment in the business” is, itself, indicative of independent contractor status,
Dole,
. The NYC 2-Way franchise disclosure statement, by way of example, lists the following expenses:
• Initial franchise fee: $40,000*
• Vehicle: $15,000-S33,000
• Smart phone: $350-$500
• Installation fee (for dispatch system app): $500*
• Security deposit (returned at end of franchise agreement): $5,000*
• Administrative fee: $1,000*
• Training fee: $250*
• TLC vehicle license fee: $550
• New York vehicle registration inspection fee and tax stamp: $473-$523
• Liability insurance: $5,500-$7,500 per year
• Magnetic window signs: $150
• Gasoline: $65 per tank
J.A. 1817-20. Asterisks denote payments made to NYC 2-Way, with all other payments notably going to third parties. In addition,
To be sure, not all Plaintiffs spent this projected amount; some may have opted for franchise arrangements which entailed a smaller upfront payment with greater recurring fees. Plaintiffs who rented franchises avoided paying this upfront fee altogether, although the record shows that they made other, significant investments in, inter alia, their vehicles, license and registration, fuel, maintenance, and repairs.
. Some drivers purchased their vehicles, while others rented.
. All franchise agreements contained the following language: "Franchisee shall be solely responsible for all fees, taxes, charges, fines, inspections, repairs, summonses, and all other aspects involving Franchisee and Franchisee's vehicle." J.A. 3408-09.
. Indeed, seven black-car franchisees filed an amicus brief emphasizing their "freedom" as "entrepreneurs,” and arguing that finding they were employees would jeopardize “the future viability of their investment in black car franchises.” Br. for Amici Curiae Mark Malchikov et al. in Support of Appellees and in Favor of Affirmance 2, 9.
To be sure, compensation on a piecework basis has sometimes been likened to "wages,” rather than a return on investment.
Mr. W Fireworks,
When employees are compensated "on a piecework basis,”
Dole,
. For example, Zone 4, in midtown Manhattan, appears to have been particularly popular due to the volume of business there.
. Likewise, after accepting and receiving information concerning a job, some Plaintiffs “frequently bail[ed] out” of jobs despite the three hour lockout penalty, while others "rarely” did so. J.A. 3395 ¶¶ 153-54.
.The franchise agreements made no guarantees about how much work Plaintiffs could expect.
. Plaintiffs fault the district court for pointing out that the first
Superior Care
factor “concerns 'degree of control
exercised
by the [Defendants].' "
Saleem,