Michael SCANTLAND, Daniel Lawrence, individually, and on behalf of all others similarly situated, et al., Plaintiffs-Appellants, v. JEFFRY KNIGHT, INC., d.b.a. Knight Enterprises, Jeffry D. Knight, Defendants-Appellees.
No. 12-12614.
United States Court of Appeals, Eleventh Circuit.
July 16, 2013.
721 F.3d 1308
5.
Finally, in ground (5), Scrushy claims the prosecution engaged in misconduct in failing to inform him of a juror‘s infatuation with an FBI agent. His claim is based on emails sent between Assistant U.S. Attorney Patricia Watson and Grimes, the whistleblower, indicating that jurors sent messages through the Marshals expressing romantic interest in the FBI Special Agent who sat at or near the prosecution table during the trial. Watson wrote, “I just saw Keith [the FBI Special Agent] in the hall. The jurors kept sending out messages through the marshals. A couple of them wanted to know if he was married.” Record, vol. II, no. 953, at 22. Grimes wrote back, “Yeah, that‘s what Vallie [another member of the prosecution] said. He said one girl was a gymnast and they called her ‘Flipper,’ because she apparently did back flips to entertain the jurors. Flipper was very interested in Keith.” Record, vol. II, no. 953, at 22. Scrushy argues that the prosecution‘s failure to disclose the jurors’ romantic interest in the FBI Special Agent was prosecutorial misconduct because the communication “raises a real possibility of bias having infected the jury.” Record, vol. II, no. 953, at 60.
Although evidence that goes to prosecutorial misconduct or the impartiality of the jury may be the proper subject of a motion for new trial based on newly discovered evidence, this claim fails on the merits.33
The evidence—that jurors had a romantic interest in the FBI agent and expressed that interest in notes sent through the Marshals—is not material; nor would it be likely to produce an acquittal on retrial. The assertion that a mere expression of attraction would infect the jury‘s decision with bias strains credulity. It was not misconduct for the prosecution to fail to disclose this contact to the defense. Even if the contact should have been disclosed, the failure to do so was harmless. Judge Fuller did not abuse his discretion in rejecting ground (5).
IV.
For the reasons we have advanced in Part III, supra, the judgment of the District Court is
AFFIRMED.
Harold L. Lichten, Shannon Liss-Riordan, Ian O. Russell, Lichten & Liss-Riordan, PC, Boston, MA, James A. Staack, Gray Cors, Staack, Simms & Hernandez, PA, Clearwater, FL, for Plaintiffs-Appellants.
Luis Antonio Cabassa, Steven G. Wenzel, Wenzel, Fenton, Cabassa, PA, Tampa, FL, for Defendants-Appellees.
Dean Romhilt, U.S. Dept. of Labor, Office of the Sol., Washington, DC, for U.S. Dept. of Labor, Amicus Curiae.
Kristi Lee Graunke, Southern Poverty Law Ctr., Atlanta, GA, for Interfaith Worker Justice, et al., Amici Curiae.
Before CARNES, HULL and ANDERSON, Circuit Judges.
The plaintiffs in this conditionally certified collective action are current and former technicians who installed and repaired cable, internet, and digital phone services for defendant Jeffry Knight, Inc. (“Knight“), an installation and repair service contractor for the cable company Bright House Networks (“BHN“) in Florida. Plaintiffs appeal the district court‘s order on summary judgment holding that they were “independent contractors“—not “employees“—and therefore not entitled to overtime and minimum wage protections afforded by the Fair Labor Standards Act (“FLSA” or “Act“),
I. STANDARD OF REVIEW
This Court reviews an appeal from a summary judgment de novo and applies the same legal standards that control the district court. RJR Nabisco, Inc. v. United States, 955 F.2d 1457, 1459 (11th Cir. 1992).
A determination of employment status under the FLSA is a question of law reviewed de novo. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996). The underlying facts and reasonable inferences therefrom are viewed in the light
II. THE FLSA
Congress passed the FLSA “to lessen, so far as seemed then practicable, the distribution in commerce of goods produced under subnormal labor conditions.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 727, 67 S. Ct. 1473, 1475, 91 L. Ed. 1772 (1947). The FLSA‘s overtime and minimum wage protections were the “method chosen to free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well-being of workers.” Id. These protections, however, extend only to “employees,” a term given rough outline by a series of broad definitions in the Act.
These definitions are intended to be “comprehensive enough” to include “working relationships, which prior to this Act, were not deemed to fall within an employer-employee category.” Rutherford Food, 331 U.S. at 729, 67 S. Ct. at 1476 (quoting Walling v. Portland Terminal Co., 330 U.S. 148, 150-51, 67 S. Ct. 639, 640, 91 L. Ed. 809 (1947)). These “broad” definitions do not, however, bring “independent contractors” within the FLSA‘s ambit. See id. at 728-29, 67 S. Ct. at 1476.
To determine whether an individual falls into the category of covered “employee” or exempted “independent contractor,” courts look to the “economic reality” of the relationship between the alleged employee and alleged employer and whether that relationship demonstrates dependence. See Bartels v. Birmingham, 332 U.S. 126, 130, 67 S. Ct. 1547, 1550, 91 L. Ed. 1947 (1947) (“[E]mployees are those who as a matter of economic reality are dependent upon the business to which they render service“); Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 936, 6 L. Ed. 2d 100 (1961) (referencing “economic reality” rather than “technical concepts” as the “test of employment“); Aimable v. Long & Scott Farms, Inc., 20 F.3d 434, 439 (11th Cir. 1994) (“To determine whether an employer/employee relationship exists for purposes of federal welfare legislation, we look ... to the ‘economic reality’ of all the circumstances concerning whether the putative employee is economically dependent upon the alleged employer.“). This inquiry is not governed by the “label” put on the relationship by the parties or the contract controlling that relationship, but rather focuses on whether “the work done, in its essence, follows the usual path of an employee.” Rutherford Food, 331 U.S. at 729, 67 S. Ct. at 1476. “[P]utting on an ‘independent contractor’ label does not take the worker from the protection of the Act.” Id.; see also Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1312 (5th Cir. 1976) (“It is not significant how one ‘could have’ acted under the contract terms. The controlling economic realities are reflected by the way one actually acts.“).1
Courts have applied various multifactor tests to guide the “economic reality” inquiry. Both parties in the instant appeal rely on the following six factors, which
- the nature and degree of the alleged employer‘s control as to the manner in which the work is to be performed;
- the alleged employee‘s opportunity for profit or loss depending upon his managerial skill;
- the alleged employee‘s investment in equipment or materials required for his task, or his employment of workers;
- whether the service rendered requires a special skill;
- the degree of permanency and duration of the working relationship;
- the extent to which the service rendered is an integral part of the alleged employer‘s business.2
While these factors serve as guides, the overarching focus of the inquiry is economic dependence:
No one of these considerations can become the final determinant, nor can the collective answers to all of the inquiries produce a resolution which submerges consideration of the dominant factor—economic dependence. The ... tests are aids—tools to be used to gauge the degree of dependence of alleged employees on the business with which they are connected. It is dependence that indicates employee status. Each test must be applied with that ultimate notion in mind. More importantly, the final and determinative question must be whether the total of the testing establishes the personnel are so dependent upon the business with which they are connected that they come within the protection of FLSA or are sufficiently independent to lie outside its ambit.
Usery, 527 F.2d at 1311-12 (emphasis in original) (citations omitted). Ultimately, in considering economic dependence, the court focuses on whether an individual is “in business for himself” or is “dependent upon finding employment in the business of others.” Mednick v. Albert Enters., Inc., 508 F.2d 297, 301-02 (5th Cir. 1975).3
III. DISCUSSION
Because both parties apply the six-factor test set out above, and because we agree that those factors are relevant to determining whether an individual is an employee or independent contractor, we apply them here. We note, however, that these six factors are not exclusive and no single factor is dominant. We view the subsidiary facts relevant to each factor through the lens of “economic dependence” and whether they are more analogous to the “usual path” of an employee or an independent contractor. And of course, in the summary judgment posture of this case, we take reasonable inferences in fa-
A. Control
The first factor considers the nature and degree of the alleged employer‘s control as to the manner in which the work is to be performed. “Control is only significant when it shows an individual exerts such a control over a meaningful part of the business that she stands as a separate economic entity.” Usery, 527 F.2d at 1312-13. The facts, viewed in the light most favorable to plaintiffs, indicate that Knight exercised significant control over plaintiffs such that they did not stand as “separate economic entities” who were “in business for themselves.”
Technicians were required to report to a Knight facility by 7:00 to 7:15 each morning. Technicians would turn in equipment from the previous day and submit their work orders, which included the billing codes that determined their pay for particular jobs. These billing codes were set by Knight, and managers could unilaterally change the codes that technicians reported, thereby reducing a technician‘s pay.4 Plaintiffs would also receive a “route” detailing the current day‘s work orders, which were generally assigned in two-hour timeslots. Though plaintiffs’ “Independent Contractor Service Agreements” provided that they could “decline any work assignments,” plaintiffs testified that they could not reject a route or a work order within their route without threat of termination or being refused work in the following days. Thus, while a technician might consider a specific route or work order unprofitable, because, for example, it was low-paying or far away, plaintiffs had no power to decline the assignment.5 Techni-
During occasional downtime, technicians could request additional jobs; they could also be required to assist other technicians or be assigned additional jobs that they could not refuse. Technicians might be required to stay on the job until all the technicians in their area had completed their work; they could also be called back to jobs long after completing them to address problems.
Plaintiffs could “upsell” by convincing customers to add additional BHN services, but those orders had to be approved by Knight. Plaintiffs could not sell non-BHN services to customers and could not work for other companies, either because they were told they could not do so or because the schedule Knight imposed prevented them from doing so. Plaintiffs could, according to their contract, employ others to help them, but any such “employees” had to be technicians already engaged by Knight, and were therefore bound by Knight‘s policies.
Plaintiffs were subject to meaningful supervision and monitoring by Knight. Technicians routinely communicated with dispatch during the day and were required to log in and out of Work Force Management—a service on their cellular phones that they paid for via payroll deductions—to indicate when they arrived on a job, when they completed a job, and what their estimated time of arrival was for their next job.6
Knight or BHN also conducted site checks of technicians’ work, and Knight tracked technicians’ “quality control discrepancy rate.” Technicians with consistent quality control issues could be given “remedial training” at a “mock house” or they could be terminated. An installation manager also might counsel a technician regarding his physical appearance or the appearance of his vehicle.
Knight levied uncontestable fines called “chargebacks” for not meeting specifications, not using Work Force correctly, misplacing inventory, or being late to a job. Typically, $100 would be deducted from the technician‘s pay for chargebacks on residential jobs and $150 for commercial jobs. Plaintiff Downs testified that chargebacks could mount up to the point where they surpassed the amount of money a technician could earn on a job.
Technicians could also be “downloaded,” i.e., fired, for consistently misbilling, fraudulently billing, stealing, having a bad attitude, having consistently low quality control ratings, and being rude to customers, other technicians, or Knight employees. Knight‘s Jill Williams testified that she and another installation manager had downloaded more than one hundred technicians.
Plaintiff technicians worked five to seven days a week; some were required to work six days a week and sometimes seven
In sum, Knight controlled what jobs plaintiffs did, how much they were paid, how many hours they worked, how many days they worked, their daily work schedule, whether they could work for others, whether they could earn additional income from customers, and closely monitored the quality of their work. Plaintiffs could not bid for jobs or negotiate the prices for jobs. Their ability to hire and manage others was illusory. This alleged control strongly suggests that the plaintiffs were economically dependent upon Knight.
Knight vigorously disputes many of the facts relied upon by plaintiffs. We are, however, bound at this stage of the litigation to view the facts in the light most favorable to plaintiffs. Knight also disputes that particular alleged facts indicate that it controlled plaintiffs. For example, Knight claims that the specifications technicians were required to follow and the periodic communication they had to maintain with Knight were consistent with duties required of independent contractors.8 We agree that meeting clients’ specifications and keeping clients informed of job progress is consistent with the “usual path” of an independent contractor. But the specific facts alleged by plaintiffs diverge from the “usual path.” Plaintiffs testified that the manner of their work was tightly regulated by Knight and left them with no discretion in how to approach a particular job.9 Furthermore, the communication that plaintiffs assert they were required to maintain with Knight was constant, not periodic. Knight also argues that its quality control measures cannot be “the single fact that ... convert[s] an otherwise independent relationship into one of employment.” It is not. Here, Knight‘s quality control measures are just one of numerous indicia of control that together strongly suggest an employee-employer relationship.
Knight further argues that the chargebacks it levied against technicians were consistent with a contractual relationship in which money would be withheld when work was not done correctly. Knight relies on Herman v. Mid-Atlantic Installation Servs., Inc., 164 F. Supp. 2d 667, 672-73 (D. Md. 2000), aff‘d sub nom. Chao v. Mid-Atlantic Installation Servs., Inc., 16 Fed. Appx. 104 (4th Cir. 2001).
Knight also argues that its quality control measures and regulation of schedules stemmed from “the nature of the business” and are therefore not the type of control that is relevant to the economic dependence inquiry. We disagree. The economic reality inquiry requires us to examine the nature and degree of the alleged employer‘s control, not why the alleged employer exercised such control. Business needs cannot immunize employers from the FLSA‘s requirements. If the nature of a business requires a company to exert control over workers to the extent that Knight has allegedly done, then that company must hire employees, not independent contractors.
Finally, Knight points this Court to unpublished opinions finding that an installation contractor such as Knight did not exercise control over technicians. We find those non-binding decisions unpersuasive in light of the specific facts of this case. The facts of this case more closely resemble cases in which courts have found installation technicians to be employees.11
Assuming factual inferences in favor of plaintiffs, this factor points strongly toward employee status.
B. Opportunity for Profit or Loss
The second factor considers the alleged employee‘s opportunity for profit or loss depending upon his managerial skill. The facts, taken in the light most favorable to plaintiffs, indicate that plaintiffs’ opportunity for profit or loss depended more upon Knight‘s provision of work orders and technicians’ own technical skill and efficiency than their managerial skill.
Plaintiffs’ opportunity for profit was largely limited to their ability to complete more jobs than assigned, which is analogous to an employee‘s ability to take on overtime work or an efficient piece-rate
Technicians could not negotiate or otherwise determine the rates they were paid for jobs. In fact, the billing codes they submitted were subject to unilateral change by Knight. They were also subjected to uncontestable chargebacks that could wipe out their earnings from a single job.12 Knight‘s argument that plaintiffs could control losses by avoiding chargebacks is unpersuasive. Chargebacks relate to the quality of a technician‘s skill, not his managerial or entrepreneurial prowess.
Plaintiffs’ ability to earn additional income through their own initiative was limited. Though plaintiffs could “upsell,” any jobs added to a work order by a technician had to be approved by Knight, and plaintiffs testified that the extra income was minimal and often not worth the additional effort. Plaintiffs could not sell non-BHN services to customers, nor work for other companies because of either a flat prohibition or because the schedules demanded by Knight prevented them from pursuing other work.
Plaintiffs were able to exert some control over their opportunity for profits by pairing up to complete jobs and trading jobs among each other, but this ability was ultimately limited by the number and types of jobs Knight assigned them and whether Knight‘s assigned schedule permitted them time to do so. Furthermore, as previously discussed, though the parties’ contract provided that technicians could hire helpers, this authority was illusory. Any helpers were required to be contracted with Knight as technicians, thus precluding the exercise of any real managerial skill over such helpers.
Assuming factual inferences in favor of plaintiffs, and in light of the minimal opportunity for profit (and that being little different from the usual path of an employee), this factor suggests economic dependence, and points strongly toward employee status.
C. Investment in Equipment or Materials
The third factor considers the alleged employee‘s investment in equipment or materials required for his task, or his employment of workers. This factor favors independent contractor status, although it does so only weakly.
As previously discussed, technicians’ ability to employ workers was illusory. As regards investment in equipment and materials, Knight provides, via BHN, the hardware that is actually installed in customers’ homes and businesses, such as cable boxes, DVRs, and cable modems. Technicians are required to have vehicles,
In sum, these expenditures seem to detract little from the worker‘s economic dependence on Knight, which is the lens through which we evaluate each of the several factors. Thus, to the extent that this factor weighs in favor of independent contractor status, the weight in that direction is minimal.
D. Special Skill
The fourth factor considers whether the service rendered requires a special skill. This factor favors independent contractor status, but it does so only weakly.
Plaintiffs were clearly skilled workers.13 The meaningfulness of this skill as indicating that plaintiffs were in business for themselves or economically independent, however, is undermined by the fact that Knight provided most technicians with their skills. Technicians could come to Knight from other installation outfits or be completely inexperienced. Most technicians, however, were inexperienced and underwent some length of unpaid training by Knight, which was followed by some period of unpaid ride-alongs with experienced technicians, before performing work on their own. Robert Collins, a former Knight installation manager, testified that Knight generally provided about two weeks of training and technicians did about a week of ride-alongs, and he estimated that only 10 to 15 percent of technicians did not require training.
Plaintiffs were, therefore, dependent upon Knight to equip them with the skills necessary to do their jobs. The skills attained by technicians point toward a degree of economic independence insofar as a highly trained technician could gain economic independence by the ability to market his skills to a competing employer. This does not, however, significantly distinguish such a worker from the “usual path of an employee.” To the extent that this factor favors independent contractor status, it does so weakly.
E. Permanency and Duration
The fifth factor considers the degree of permanency and duration of the working relationship. This factor points strongly toward employee status.
Named plaintiffs worked for Knight for an average of more than five years. Their contracts were for year terms, were automatically renewed, and were terminable only with thirty days’ notice. These facts suggest substantial permanence of relationship.
Assuming factual inferences in favor of plaintiffs, and looking through the lens of economic dependence vel non, long tenure, along with control, and lack of opportunity for profit, point strongly toward economic dependence. Thus, this factor strongly indicates employee status.
F. Integral Part of Alleged Employer‘s Business
The sixth and final factor considers the extent to which the service rendered is an integral part of the alleged employer‘s business. This factor weighs clearly and strongly toward employee status.
Approximately two-thirds of Knight‘s business consists of the telecommunications installation and repair services it performs for BHN. Knight relies on approximately five hundred technicians to perform installations and repairs in BHN customers’ homes and businesses. Knight‘s website described its Installation Services department as the “backbone” of its business.
The integral role played by technicians in Knight‘s business shows that the arrangement follows more closely that of an employer-employee relationship than an independent contractor dynamic. If Knight had truly outsourced such a large portion of its business, as would be true if plaintiffs were independent contractors, then the company would retain far less control over the business. However, because of Knight‘s concern with the quality of the services it provides through this arrangement, it does, as one might expect, control the relationship in much the same way a company would control its employees. The technicians’ integral part in Knight‘s business follows the “usual path of an employee.”
Assuming factual inferences in favor of plaintiffs, this factor points strongly toward employee status.
G. Weighing the Factors
When all the facts are viewed in the light most favorable to the plaintiffs and all reasonable inferences are drawn in their favor, four of the six factors weigh strongly in favor of employee status. The two factors that do not—investment and special skill—weigh only very slightly toward independent contractor status. Neither contributes in any significant manner to the workers’ economic independence or to distinguishing the workers from “the usual path of an employee.” Thus, we conclude that, viewing the facts most favorably toward plaintiffs and with all justifiable inferences drawn in their favor, plaintiffs were “employees“—not “independent contractors“—under the FLSA. Because there are genuine issues of material fact, and because plaintiffs were “employees” if all reasonable factual inferences are found in plaintiffs’ favor, the district court erred in granting summary judgment to Knight.
IV. MOTIONS REGARDING KNIGHT‘S ALLEGED COERCIVE AND RETALIATORY CONDUCT
Plaintiffs argue that the district court abused its discretion in failing to limit Knight‘s allegedly coercive and retaliatory course of conduct against plaintiffs and potential opt-in plaintiffs and that the dis-
This is not the case. On March 16, 2012, the district court denied the plaintiffs’ motions to reopen the opt-in period, for protective order, for corrective notice, and for sanctions. The court noted that a pretrial conference had been scheduled, trial was set to begin in June, discovery was over, “dispositive motions [had] been taken under advisement,” and reopening the opt-in period “would serve no purpose.” The district court also explained that any “additional claims of retaliation ... can be pursued in a separate case.”
We review a district court‘s decision made in the course of managing its docket for an abuse of discretion. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863-64 (11th Cir. 2004). Plaintiffs do not challenge the district court‘s rationale in this regard. We therefore conclude that the district court did not abuse its wide discretion in managing its docket.
V. CONCLUSION
The district court‘s denial of plaintiffs’ motions to reopen the opt-in period, for protective order, for corrective notice, and for sanctions is AFFIRMED. The district court‘s summary judgment order is REVERSED and REMANDED for further proceedings consistent with this opinion.14
Notes
No one factor is controlling, nor is the list exhaustive. The factors simply summarize the matters deemed relevant by the Supreme Court in Bartels v. Birmingham, 332 U.S. 126, 130, 67 S. Ct. 1547, 91 L. Ed. 1947 (1947), United States v. Silk, 331 U.S. 704, 716, 67 S. Ct. 1463, 91 L. Ed. 1757 (1947), and Rutherford Food, 331 U.S. at 729, 67 S. Ct. 1473, to help gauge the degree of dependence of an alleged employee on the business with which they are connected. The weight of each factor depends on the light it sheds on the putative employee‘s dependence on the alleged employer, which in turn depends on the facts of the case. See Antenor, 88 F.3d at 933.
Santelices v. Cable Wiring, 147 F. Supp. 2d 1313, 1319 (S.D. Fla. 2001).The issue of whether technicians were able to choose preferred work orders and areas or reject unwanted ones is strongly contested by the parties. Plaintiffs’ testimony indicates that some technicians were able to select particular areas or work orders. Plaintiff Scantland testified in his deposition that, as a “lead” technician, he let his best technicians cherry pick the work orders they wanted from others’ routes. Plaintiff Zapata‘s deposition testimony confirmed this practice. He testified that his route was often cherry picked by the time he arrived at work. Plaintiffs Zapata and Hauser testified that their geographic preferences were usually granted.
On the other hand, plaintiffs’ testimony clearly asserts that they were not free to decline particular work orders, as claimed by Knight. Plaintiffs Zapata and Sperry testified that when they tried to decline unpleasant jobs, they were threatened with being terminated or not receiving work the next day. Plaintiff Downs testified that it was known that if a technician turned down a route he could be given a difficult, low-paying job, such as digging to lay lines, or no work at all the following day. Plaintiff Hauser testified that he had been denied work for a couple of days after he refused an additional assignment toward the end of his workday. Hauser also testified that his preferred area was taken away from him after he declined a particular assignment.
Technicians could transfer work orders among themselves and pair up to complete their work; when they did so, they determined among themselves how to divide their pay.