Andrew Frisch
S.D.Fla.: Where Defendant Demonstrated Subjective Component Of Good Faith, But Failed To Show Objective Good Faith, Liquidated Damages Appropriate
Wajcman v. Investment Corp. of Palm Beach
Following a verdict in favor of Plaintiffs, on their claims that Defendant violated the FLSA, by illegally allowing certain employees to share in the tip pooling, the issue before the Court was whether Defendant had presented sufficient evidence to demonstrate that its violation of the FLSA occurred in good faith and under the reasonable belief that it was compliant with the FLSA. Because, the Defendant were able to show only subjective good faith (consult with an attorney), the Court awarded full liquidated damages.
The Court explained, “To satisfy the good faith requirement, an employer must show that it acted with both subjective and objective good faith ( Rodriguez, 518 F.3d at 1272), and “upon such reasonable grounds that it would be unfair to impose upon [it] more than a compensatory verdict.” Bozeman v. Port-O-Tech Corp., 2008 WL 4371313, * 15 (S.D.Fla. Sept. 19, 2008)(quoting Joiner, 814 F.2d at 1538)). To demonstrate the subjective component, an employer must show that it had “an honest intention to ascertain what the FLSA requires and to act in accordance with those requirements.” Feniger v. Cafe Aroma, 2007 WL 853735, *3 (M.D.Fla. March 16, 2007)(citing Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1566 (11th Cir.1991)). Proving the objective component of the good faith defense requires the employer to demonstrate that it had a reasonable belief that its conduct conformed with the FLSA. See Chao v. Tyson Foods, Inc., 568 F.Supp.2d 1300, 1322 (N.D.Ala.2008). If the employer can demonstrate that it had both a subjective belief that it was compliant with the FLSA and that it also had an objectively reasonable basis for its belief, then the Court may apply the safe harbor provision and limit or deny an award of liquidated damages. See Stevenson v. Orlando’s Auto Specialists, Inc., 2008 WL 4371830, *4 (M.D.Fla. Sept. 23, 2008). “Absent a showing of both the subjective and objective elements of the good faith defense, liquidated damages are mandatory.” Dybach v. State of Fla. Dept. of Corrections, 942 F.2d 1562, 566-67 (11th Cir.1991)(citation omitted ).
Here, with regard to the subjective component, the Court finds that Defendant has demonstrated that it had “an honest intention to ascertain what the FLSA requires and to act in accordance with those requirements.” Feniger v. Cafe Aroma, 2007 WL 853735, *3 (M.D.Fla. March 16, 2007)(citing Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1566 (11th Cir.1991)). This finding is based on Ms. Lampman’s testimony that she consulted with attorneys, familiarized herself with the law, and ascertained the tip pooling practices of other cardrooms in the local area before implementing Defendant’s tip pool. These activities are sufficient to show that Defendant made some effort to “investigate potential liability under the FLSA.” Feniger, 2007 WL 853735 at *3 (quoting Barcellona v. Tiffany English Pub., Inc., 597 F.2d 464, 469 (5th Cir.1979)). Additionally, Ms. Lampman’s decision to include the floor supervisors in the tip pool, based on what she perceived to be their sufficient level of customer interaction, while excluding other positions that she believed did not have the requisite level of interaction with the patrons, demonstrates an intent to comply with the FLSA.
However, the Court finds that Defendant’s belief regarding its FLSA compliance was not objectively reasonable. First, there are a number of cases which suggest that an employee’s level of customer interaction is the most significant factor in evaluating whether he qualifies as a “tipped employee” under the FLSA. See Roussell v. Brinker Intern., Inc., 2008 WL 2714079 at *7, * 10 (S.D.Tex. July 9, 2008)(agreeing with the Sixth Circuit that the level of customer interaction is “highly relevant ” and that the extent of an employee’s interaction with customers is “critical ” in determining whether an employee may participate in a valid tip pool)(emphasis added)(citing Myers v. Copper Cellar Corp., 192 F .3d 546, 550 (6th Cir.1999); Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294, 300-02 (6th Cir.1998)). See also Morgan v. SpeakEasy, LLC, 2007 WL 2757170, * 18 (N.D.Ill. Sept. 20, 2007)(court focused on employees’ customer related activities to determine whether they were properly included in tip pool); Townsend v. BG-Meridian, Inc., 2005 WL 2978899, *7 (W.D.Okla. Nov. 7, 2005)(same).
Here, however, the bulk of the evidence before this Court suggests that the floor supervisors in Defendant’s cardroom had only de minimus customer interaction. Although the written job description mentions that floor supervisors will have “[d]aily contact with customers,” the evidence demonstrates that such contact did not rise to the level of customer interaction usually associated with a tipped employee. Indeed, the testimony at trial indicated that the floor supervisors’ interaction with customers was sporadic and only on an as-needed basis for dispute resolution or when hosts, chip runners or waitresses were unavailable. As their job description sets forth, the floor supervisors’ primary responsibility was to supervise the employees on the cardroom floor, which included assigning the dealers’ table rotations, their break times and ensuring employees’ compliance with the dress code.
Based on this testimony, the Court finds that Defendant overstated the customer interaction component of the floor supervisors’ duties to justify their inclusion in the tip pool. The Court further finds that Defendant underestimated the significance of the “customer interaction” test, relying too heavily on industry practice to support its decision to include the floor supervisors in the tip pool. This combination of errors resulted in Defendant’s grossly miscalculated conclusion that the floor supervisors were proper participants in the tip pool. Indeed, the jury’s verdict suggests that an average person outside the gaming industry would not agree with Defendant’s characterization of the floor supervisors as having significant customer interaction and such a skewed perception cannot be construed by this Court as objectively reasonable. See Kennedy v. Critical Intervention Services, Inc., 199 F.Supp.2d 1305, 1307-08 (M.D.Fla.2002)(although court found employer to have satisfied subjective good faith based on its investigation of the FLSA in an effort to avoid violating it, court found employer’s belief that it was compliant with the FLSA was not supported by the evidence and was not objectively reasonable; in reaching this conclusion court relied on jury’s verdict that plaintiff was not an exempt employee). See also Brandt v. Magnificent Quality Florals Corp., 2009 WL 899922, *3 (S.D.Fla. March 31, 2009) (even though employer was aware of FLSA overtime requirements, his belief that his employees never worked more than 40 hours was not supported by the evidence and, thus, was not objectively reasonable).”
15 Senators Urge Fair Wages For Home Care Workers
According to a press release, Senator Tom Harkin and 14 other U.S. senators have sent a letter to the DOL urging the Secretary of Labor, Hilda Solis, to “use its broad authority to interpret the Fair Labor Standards Act (FLSA) to extend wage and hour laws to home health care workers.
Though most domestic workers are covered under FLSA, an exemption to that law has been interpreted by the DOL to exclude home care workers. Today marks the two-year anniversary of a Supreme Court ruling that upheld the Department’s interpretation, making clear that the Department has broad authority to interpret FLSA.
In the three decades since the exemption was created, the numbers of home care workers and their responsibilities have expanded dramatically as the population has aged and more and more people are choosing long-term care services in their homes rather than in institutions. Home care, increasingly, has become not casual work performed by a friend or family member but a full-time regular type of employment,” wrote the lawmakers. “It is critical that these professional workers, who provide essential services to our nation’s elderly and disabled, have the same right to minimum wage and overtime pay as enjoyed by other workers.”
To read the full text of the letter from the senators, go to IOWAPOLITICS.com.
N.D.Ill.: Motor Carrier Act (MCA) Inapplicable Where Carrier/Employer Based Orders On Quarterly Forecasts And Items Did Not Have Specific Destination When Came In State
Sedrick v. All Pro Logistics, LLC
Plaintiff sued his employers, alleging that they failed to pay him time and a half for overtime hours worked, as required by the Fair Labor Standards Act (“FLSA”). Plaintiff had previously intended for this to be a representative action, but now sought to pursue relief only on his own behalf. The only question before the Court was whether Defendants are exempted from being required to pay overtime under the FLSA because of the Motor Carrier Act (“MCA”) exemption. Both parties moved for summary judgment on the issue of liability. The Court granted Plaintiff’s Motion denied Defendants’ Motion.
“APL provided transportation services to Bay Valley Foods (“BVF”). BVF produced a coffee creamer (“the product”) which APL transported for BVF. BVF produced the product at a facility in Pecatonica, Illinois. After being manufactured and placed into packaging, the product was assigned to particular customers, and a label was placed on the product to indicate the intended customer. The product was then transported to BVF’s warehouse facility in South Beloit, Illinois, one of several warehouse facilities BVF has throughout the country.
The product was allocated to customers pursuant to quarterly “forecasts” given to BVF by the customers, reflecting the customer’s likely future demand. However, because many BVF customers were large companies with multiple stores-some outside of Illinois and some within Illinois-the specific geographic destination of the product was unknown at the time it was packaged at the Pecatonica facility. The specific quantity a customer would actually receive was not known; a customer’s product allocation remained at the South Beloit facility until the customer contacted BVF and requested that part of its allocation be sent to a particular store, or stores, of the customer. Allocations of the product could remain at the South Beloit warehouse for as little as a day before being sent on to a customer, or as long as a year, after which time the product was recalled and would not be shipped to customers. Depending on the need of the customers, the product would sometimes be delivered within Illinois, and would sometimes be delivered outside of Illinois.”
In finding the MCA inapplicable to the case at bar, the Court explained,
“Applying section 782.7(b)(2) to this case, there was no fixed and persisting intent to move the product interstate at the time Sedrick transported it from Pecatonica to South Beloit. The product transported by Sedrick was assigned to particular customers, but that allocation were based on quarterly forecasts; it was not based on a specific order for a specific quantity to be moved to a specific destination beyond the South Beloit warehouse. § 782.7(b) (2)(i). The South Beloit facility served as a distribution point or local marketing facility from which specific amounts of the product were sold or allocated; the product was held in South Beloit until a customer contacted BVF and requested a specific quantity to be sent to a specific location, at which time BVF either permitted the customer to pick the product up itself, or arranged for the product to be shipped to the customer’s final destination. § 782.7(b)(2)(ii). Finally, transportation of the product from beyond the South Beloit warehouse was not arranged until after the product had arrived at South Beloit. The product remained in the warehouse from as little as one day to as long as a year before shipping arrangements were made. § 782.7(b)(2)(iii). Any product that remained over one year was recycled by BVF.
The Sixth Circuit in Baird v. Wagoner Transportation Co., 425 F.2d 407 (6th Cir.1970) reached the same conclusion based on similar facts. There, petroleum product was moved to a storage facility based on forecasts for particular customers, but was not delivered until a subsequent time when an actual order was made. Id. at 411-12. In that case, the record showed that the final location of the product was known, but the specific quantity to be delivered was unknown until after it arrived at the storage facility, as the original shipments were based on forecasts. Id. The court concluded from this that there was not a fixed and persistent intent to ship goods in interstate commerce. Id. In the case at bar, neither the quantity nor the destination is known. The quantity is unknown because, as in Wagoner Transportation Co., BVF’s production is based on forecasts, but the actual amount delivered may vary and at least some of the product will be recycled by BVF because it will remain at the South Beloit facility for over one year. Second, though the product is allocated by customer, it is not allocated to any customer’s specific destination, and many customers have several destinations where the product can be delivered.”
Thus, the Court concluded, “[b]ecause the product’s final destination was not known when Sedrick moved it from Pecatonica to South Beloit, this movement was not yet part of in an interstate journey, and the provisions of the MCA did not apply. Accordingly, the FLSA exemption for the MCA also did not apply, and Sedrick was entitled to the overtime provisions of the FLSA.”
E.D.Mo.: Informal Workplace Complaints Are Not “Protected Activity” Under § 215(a)(3)
Bartis v. John Bommarito Oldsmobile-Cadillac, Inc.
Plaintiff worked for Defendant as a car salesman. Plaintiff alleged that he was fired after he complained about and refused to comply with what he believed to be unlawful employment practices. Plaintiff asserted claims for retaliatory discharge under the Fair Labor Standards Act and under state law. Defendant moved to dismiss, arguing that, by simply complaining to his supervisor, Plaintiff did not engage in any protected activity that would shield him from retaliatory discharge. The Court agreed and concluded the FLSA and Missouri state law do not prohibit an employer from terminating an employee merely because the employee raised workplace complaints. Therefore, the Court granted defendant’s motion to dismiss.
The Court explained, “In the Eighth Circuit, district courts are guided by the decision in Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975). In Brennan, the government brought suit against an employer after the employer withheld overtime compensation from its employees. The employer had agreed to pay the overtime after a Department of Labor investigation found violations of the FLSA. But then the employer required the employees to endorse their back-wage checks over to the employer. One employee was terminated after she refused to do so. Id. at 180. The court held that the employee’s discharge was unlawful retaliation in violation of § 215(a)(3). According to the court, “her discharge was a direct result of her insistence upon receiving retroactive benefits required under the [FLSA].” Id. at 181. Thus, “the immediate cause or motivation” of the discharge was the employee’s assertion of statutory rights, thereby violating § 215(a)(3). Id. That the employee did not “file” a complaint or “initiate” a proceeding was irrelevant.
The decision in Brennan provides some support for the plaintiff here, but it is not dispositive. In Brennan, unlike this case, there was already an agreement in place between the Department of Labor and the employer regarding the payment of back wages. This agreement was necessarily a “proceeding” covered by § 215(a)(3). The FLSA protected the employee seeking to vindicate her FLSA rights where the formal proceeding was already in place when the employee complained and was terminated.
The Eighth Circuit decisions interpreting § 215(a)(3) make clear that the employee must engage in protected activity in order to be shielded from retaliation. See Grey, 396 F.3d at 1034-35. The “protected activities” are listed explicitly in the statute: filing a complaint, instituting or testifying in a proceeding, or serving on a committee. Workplace complaints are not included. Raising informal objections with one’s supervisor is not included. Bartis is correct to point out that within the protected activities enumerated in the FLSA, there is room for broad interpretation. See Saffels v. Rice, 40 F.3d 1546, 1549-50 (8th Cir.1995) (holding that the anti-retaliation provision protects an employee who was fired because the employer had a mistaken belief that the employee filed a complaint with the Department of Labor). But the statute cannot be construed so broadly as to depart from its plain and clear language. See Brown v. L & P Indus., No. 5:04CV379JLH, 2005 WL 3503637 (E.D.Ark. Dec. 21, 2005) (employee who merely contemplated filing a complaint with the Department of Labor and threatened to do so was not covered by anti-retaliation provision). See also Haug v. Bank of America, N.A., 317 F.3d 832, 835 (8th Cir.2003) (“Where the language of a statute is unambiguous, the statute should be enforced as written unless there is clear legislative intent to the contrary.”).
Moreover, the FLSA anti-retaliation language stands in stark contrast to the anti-retaliation provision found in another labor statute, Title VII of the Civil Rights Act of 1964. That statute prohibits employer retaliation against any employee who has ” opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added). Protection for anyone who “opposes a practice” is far broader than the protection found in the narrow limitations of the FLSA. Congress knows how to afford broad protection against retaliation when it wants to. Unlike Title VII, the FLSA anti-retaliation provision is limited in its scope and does not extend to activities that fall outside its clear text. For these reasons, Bartis’s claim for unlawful retaliation under the FLSA must be dismissed.”
The decision demonstrates the continuing interpretation throughout the country as to what constitutes “protected activity” thereby giving rise to the protections of 215(a)(3), the FLSA’s anti-retaliation provision.
A Proposed Law To Give New York State Agricultural Workers The Same Rights To Overtime As Other Workers
In today’s New York Times, Columnist, Bob Herbert supports a new law proposed in New York State, which would require the state’s agricultural workers to be paid overtime for their long hours of work. Read the entire Op-Ed column at New York Times. The proposed law has galvanized workers and the farming industry and has raised many questions regarding the treatment of so-called agricultural workers.
“…Farmworkers in New York do not have the same legal rights and protections that other workers have, and the state’s multibillion-dollar agriculture industry has taken full advantage of that. The workers have no right to a day off or overtime pay. They don’t get any paid vacation or sick days. When I asked one worker if he knew of anyone who had a retirement plan, he laughed and laughed.
To understand how it’s possible to treat farmworkers in New York this way you have to look back to the 1930s when President Franklin Roosevelt was trying to get Congress to pass the Fair Labor Standards Act to provide basic wage and hour protections for workers. Among the opponents were segregationist congressmen and senators who were outraged that the protections would apply to blacks as well as whites.
Most agricultural and domestic workers were black, and the legislation was not passed until those two categories of workers were excluded. New York State lawmakers, under heavy and sustained pressure from the agriculture lobby, have similarly exempted farmworkers (the vast majority of whom are now Latino) from most state labor law protections.
There was a good chance — right up until Monday, when the State Senate went through a sudden and cataclysmic change from Democratic to Republican control — that something might be done about this legislatively. On Monday evening, the Assembly passed (and Gov. David Paterson has promised to sign) a bill extending much-needed labor protections to farmworkers, including the right to at least one day of rest per week and, more important, the right to bargain collectively…”
To read Bob Herbert’s entire piece go to the New York Times website.
D.N.J.: Defendant’s Motion To Dismiss Opt-out NJWL Claims As Incompatible With FLSA Opt-in Claims Denied At Pleading Stage
Perry v. Freedom Mortg. Corp.
This case was before the Court on Defendant’s motion to dismiss or strike count II of Plaintiffs Complaint, which alleged overtime law violations pursuant to the New Jersey Wage Law (“NJWL”). The Court denied Defendant’s motion, explaining that it was premature at the pleading stage. This case is of note, because there is conflict of authority within the 3rd Circuit, as to whether Rule 23 “opt-out” classes and 216(b) “opt-in” classes can ever be brought together, or whether the Court should necessary deny its inherent supplemental authority necessarily in such cases.
“The underlying Complaint in this case is a putative class claim, filed by Plaintiff, contending that Freedom violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and the New Jersey’s Wage Law (“NJWL”), N.J.S.A. 34:11-56a et seq. by improperly classifying mortgage loan officers to prevent them from receiving overtime pay for work in excess of 40 hours a week. In its motion to dismiss Plaintiff’s NJWL claim, Freedom argues that Plaintiff’s FLSA and NJWL claims are legally incompatible. This Court concurs with and adopts Judge Linares’ reasoning in Freeman v. Hoffman-Laroche, Inc. No. 07-1503, 2007 U.S. Dist. LEXIS 92589, at * 70*10 (N.J.D. Dec. 18, 2007), determining that dismissal of a cause of action under NJWL solely for “inherent incompatibility” with FLSA is not appropriate.
Freedom’s additional argument is that the Court should dismiss Count II because Plaintiff cannot establish the “superiority” test required for class certification under Federal Rule of Civil Procedure 23(b)(3). The Court holds that this argument is premature. The parties have conducted no discovery. No motions for class certification have been filed. The Court will be in a much better position to address this issue at the class certification stage.”
E.D.N.Y.: Alleged Operators Of Garment Factory May Constitute Plaintiffs’ Employers Or Joint Employers Under FLSA; Motion To Dismiss Denied
Lin v. Great Rose Fashion, Inc.
In this Fair Labor Standards Act (“FLSA”) case, Plaintiffs allege that they were deprived of a minimum wage and overtime pay while working in a garment factory, and ultimately discharged from their employment in retaliation for pursuing their rights to this compensation. Plaintiffs had previously moved for both a preliminary injunction and a TRO, based on alleged retaliatory conduct from Defendants, and allegations that Defendants were seeking to strip the factory where Plaintiffs had been employed of their assets. Of particular interest on the parties Motions currently before the Court, the Defendants sought to dismiss Plaintiffs’ claims based on alleged lack of standing—arguing that that Defendants were not Plaintiffs’ employers under the FLSA. Denying Defendants’ Motion to Dismiss based on lack of standing, the Court reviewed the elements of joint employers under the FLSA as well as those used to distinguish between independent contractors and employees. The Court held an evidentiary hearing and made factual findings regarding the nature of the parties’ relationship.
“Defendants argue that Plaintiffs lack standing to sue because they were not ’employees,’ as defined in the FLSA, but rather ‘independent contractors.’ Defendants claim they ‘outsourced the packing and trimming work to Wen Ming Lin and Yu Jiao Lin,’ and Wen Ming Lin’ in turn employed a group of ‘independent contractors,’ the Packer Plaintiffs. In support of their view, Defendants assert that they did not hire, fire, supervise, or manage the workers. They claim that the ‘subcontractors’ maintained the other workers’ employment records, negotiated a pay rate for the group and collected checks on one desk, and that ‘the plaintiffs themselves decided when they should arrive, depart, and the amount of time for which they were to work.’
The evidence presented at the Hearing exposed each of these assertions to be patently false. Applying the Brock factors, there is simply no question that these Plaintiffs “depend[ed] upon someone else’s business for the opportunity to render service” and were not “in business for themselves.” See Brock, 840 F.2d at 1059. The Plaintiffs were low-skilled, immigrant piece-workers toiling for long hours of manual labor in a garment factory. At least one, Yu Jiao Lin, expressed that she was illiterate. The testimony of the Plaintiffs established that they were interviewed, hired, fired, assigned work and hours, and supervised and managed by Mrs. Lin and Fang Zhen, or others under their control. (Tr. 31, 33-36, 78-81.) Contrary to the Defendants’ assertions, there is no evidence that Wen Ming Lin or Yu Jiao Lin had the power to hire, fire, manage assignments and schedules, or discipline other workers. (Id.)
It is plain that Mrs. Lin and Fang Zhen exercised a degree of control over the workers commensurate with the role of an employer. The Defendants’ collective denial of control over the workers is not credible. Wen Ming Lin’s referral of prospective workers to Mrs. Lin for her to interview does not elevate him to the role of independent contractor. (Tr. 52-53.) The Defendants’ additional arguments are similarly unavailing and unsupported by the evidence. For example, the Defendants’ repeatedly point to a single paycheck issued on December 9, 2005 and marked “payment for the assigned contractors” as evidence that “Plaintiffs shared and shared alike,” creating a relationship “best [ ] characterized as a partnership.” (Def. Post-Hearing Opp. 3, Def. Ex. A.) The Defendants’ choice to unilaterally label the Plaintiffs “contractors,” and to attempt to pay them via a collective paycheck on one occasion years ago, does not control the legal question before the court. This crude argument fails to set the Plaintiffs apart as independent contractors.
Considering the remaining Brock factors, the Defendants’ “independent contractor” theory proves even more preposterous. There is zero evidence that Plaintiffs had any opportunity for profit or loss or an “investment” in the business. The packers and thread-cutters were engaged in low-skilled factory labor, which was obviously not a matter of “independent initiative.” The Plaintiffs who took the stand worked at the Factory on a permanent, daily basis for three years. Their work at the Factory was not an occasional project. The Plaintiffs performed discrete tasks that assisted the line production, assembly, and packaging of goods. It is clear that their work was “an integral part of the employer’s business.”
Defendants’ contrived efforts to distance themselves from their workers and treat them as “subcontractors” have failed. The Defendants’ argument is nothing more than a transparent attempt to use a legal fiction to escape liability for their alleged labor abuses. The notion that these Plaintiffs acted as independent contractors outside the protection of the FLSA is so thoroughly without merit that it borders on an affront to the dignity of this court.”
B. Silver Fashion and Mrs. Lin Constitute “Employers” Under the FLSA
As a matter of economic reality, the Plaintiffs were employed by the Factory and the entities that owned it over the years: Silver Fashion, Great Rose, and Spring Fashion. Under the Carter factors, Silver Fashion maintained formal control over the Plaintiffs through the actions of its principal managers. Since Mrs. Lin’s parents were absentee, nominal owners of the business, Mrs. Lin controlled the company. The persistent euphemism that Mrs. Lin was just “helping out” her parents and that Fang Zhen was “helping” Mrs. Lin cannot be taken seriously. The only conceded owners or managers of Silver Fashion were Mrs. Lin’s parents, who live in China and appear to have no involvement whatsoever in the operations of this company held in their names. As Mrs. Lin eventually summarized: “Basically I was running the company.”(Tr. 262.)
As reviewed above, Plaintiffs were interviewed, hired, fired, assigned work and hours, and supervised and managed by Mrs. Lin and Fang Zhen, or others under their control. (Tr. 31, 33-36, 78-81.) There is no serious dispute that Mrs. Lin or others acting on her behalf determined the rate and method of payment. Mrs. Lin also maintained employment records, as demonstrated by the Defendants’ production of the Weekly Trim/Packing Reports. (See Def. Ex. A (original records in blue ink).) These records purport to show the quantity and price of the piecework performed by the Packer Plaintiffs, which formed the basis for their weekly compensation. At a minimum, Plaintiffs have standing to sue Silver Fashion, its predecessor entities, and Mrs. Lin under the FLSA. The court reserves judgment pending discovery as to the role of Fang Zhen in the employment scheme.
C. Great Wall and Mr. Lin May Constitute Joint Employers Under the FLSA
Defendants also argue that the case should be dismissed as to Great Wall and Mr. Lin, because they had no “operational control” over the Plaintiffs. (Def. Post-Hearing Opp. 10-15.) The agency regulations promulgated under the FLSA expressly recognize that a worker may be employed by more than one entity at the same time. See29 C.F.R. § 791.2 (2003); Zheng, 355 F.3d at 66 (citing Torres-Lopez v. May, 111 F.3d 633, 639-45 (9th Cir.1997) (permitting claims against joint employers under the FLSA); Antenor v. D & S Farms, 88 F.3d 925, 929-38 (11th Cir.1996) (same)). Plaintiffs have standing to sue Great Wall and Mr. Lin, in addition to the other Defendants, if they exercised “functional control” over the Factory and its workers. See Barfield, 537 F .3d at 143;
Zheng, 355 F.3d at 66, 72.
Discovery is needed to determine whether a functional employment relationship existed between the Plaintiffs and Great Wall under the Zheng factors. The economic reality test intentionally reaches beyond traditional concepts of agency law to encompass “working relationships, which prior to [the FLSA], were not deemed to fall within an employer-employee category.” Zheng, 355 F.3d at 69 (quoting Walling v. Portland Terminal Co., 330 U.S. 148, 150-51 (1947)). Under the theory of functional control, “an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them.” Zheng, 355 F.3d at 70 (interpreting Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947)). Evidence already establishes that purported agents of Great Wall-Mrs. Lin and Fang Zhen, who each testified that they were employed exclusively by Great Wall-supervised the Plaintiffs’ work in the Factory. The ownership of the premises and the equipment used in the Factory could be imputed to Great Wall, given the tangled leasing relationships between Mr. and Mrs. Lin and the fact that the Factory’s space was distinguished from Great Wall’s space by nothing more than a pile of paper boxes. The Second Circuit has also recognized that a company can de facto set employees’ wages and “dictate[ ] the terms and conditions” of their employment, though they do not “literally pay the workers,” where those employees perform work exclusively in service of that company. Id. at 72.In effect, Plaintiffs functionally worked for Great Wall, because they worked in a Factory that manufactured garments exclusively for Great Wall. Upon review of the preliminary evidence before the court, the relationship between Plaintiffs and Silver Fashion appears to have had “no substantial, independent economic purpose” beyond serving as a “subterfuge meant to evade the FLSA or other labor laws” for the benefit of Great Wall.Id.
In light of the court’s obligation to look beyond the strictures of formal tests and consider all relevant facts, the court finds that Defendants’ dubious uses of the corporate form and the interlocking relationships between the Defendant Corporations are pertinent to the joint employer inquiry in this case. Defendants’ attempt to distinguish Great Wall as a mere “customer of Silver Fashion” is a fallacy. Nearly every aspect of these businesses was intertwined. Together, the Lins controlled both companies. Mr. Lin owned Great Wall, and his wife operated Silver Fashion. Mrs. Lin’s parents appear to be nothing more than straw owners of Silver Fashion. Great Wall was Silver Fashion’s landlord and sole client. Silver Fashion manufactured garments exclusively for Great Wall. In turn, Mr. Lin could not identify a single supplier to his company other than Silver Fashion. Mrs. Lin owned the building where both companies were housed, yet leased the entire building to a company wholly controlled by her husband, so that he could sublet part of it back to her parents for $18,000 a month. (See Section II.A supra.)From the rent and the garment sales, significant funds flowed between these related companies on a regular basis. These entities were functioning as complementary components of a single business enterprise.FN9Based upon these facts, Plaintiffs may have standing to hold Great Wall and Mr. Lin liable either as their functional employers or under other legal theories. The court denies Defendants’ Motion to Dismiss for lack of standing in its entirety.”
NYC Contractor Charged With Wage Theft And Falsifying Business Records
The New York Times is reporting that a NYC contractor, who has done millions of dollars worth of work for various New York City public organizations and authorities over the past 20 years, was recently indicted and charged for allegedly widespread wage-theft on its jobs.
“The indictment… accuses M. A. Angeliades of failing to pay prevailing wages and benefits to employees who were working on rehabilitating 11 subway stations from January 2005 through December 2007, officials said.
Although the charges were limited to the company’s work on the 11 stations, covered by four contracts with the Metropolitan Transportation Authority, the Manhattan district attorney, Robert M. Morgenthau, who announced the indictments, suggested widespread crime. “I think it’s clear they stole a lot more,” Mr. Morgenthau said at a news conference to announce the charges….
the thrust of the charges is that Mr. Angeliades and the others went to great lengths to avoid paying union wages and benefits for overtime and weekend work to the company’s employees, instead paying them $20 an hour, and keeping the additional $40 to $55 an hour that the company was required to pay into union benefit funds, prosecutors said.
By failing to pay prevailing wages and benefits, as the law requires on public contracts, companies reap significant savings that allow them to underbid their competition and make substantially larger profits.
Over the past decade, the company has done $432 million worth of work for the M.T.A., $236 million for the School Construction Authority and tens of millions of dollars’ worth of work for the city and other public agencies.
After the company came under scrutiny, the city and several other agencies warned their contracting officers away from M. A. Angeliades, but it is still doing millions of dollars’ worth of work for the transportation authority, the School Construction Authority and the city’s Health and Hospitals Corporation.”
To read the entire article go to the New York Times Website.
S.D.Fla.: Defendant’s Generalized Affirmative Defenses Struck; FLSA Plaintiff Entitled To Attorneys’ Fees If Prevails
Romero v. Southern Waste Systems, LLC
This case was before the Court pursuant to Plaintiffs Motion to Strike Defendant’s Affirmative Defenses to Plaintiff’s Complaint. Plaintiff moved to strike several affirmative defenses, including a generalized reference to all “white collar” exemptions, a generalized exemption that the Plaintiff was paid pursuant to the parties’ “agreement,” set-off (alleging no facts to support same), and a claim that Plaintiff was not entitled to prevailing attorneys’ fees under the FLSA. Additionally, the Answer had a request for Defendant’s attorney fees without basis. The Court struck all the affirmative defenses, which were the subject of the opinion, some with leave to re-plead and other without.
Addressing each of the Defendant’s disputed affirmative defenses, the Court stated, “Defendant’s Third Affirmative Defense claims that Plaintiff was exempt from overtime compensation pursuant to the 29 U.S.C. § 213(a) (1) exemption to the FLSA. Plaintiff complains that this affirmative defense fails to allege any facts that would put Plaintiff on notice of the basis of Defendant’s claim. This provision encompasses the executive exemption, the administrative exemption, the outside sales exception, the learned professional exemption and the creative professional exemption. Defendant has agreed to amend his defense to state that Plaintiff was exempt pursuant to the executive and/or administrative exemption pursuant to 29 U.S.C. § 216(b). Leave to amend is granted.
The Court notes that 29 U.S.C. § 216(b) prescribes damages under the FLSA and is unrelated to the exemptions to the FLSA. When Defendant amends this affirmative defense, the Court instructs Defendant to be clear regarding the provision of the FLSA that forms the basis for the claimed exemption(s).”
The Seventh Affirmative Defense alleges that Defendant paid Plaintiff “all monies owed per the agreement between them.”Plaintiff takes this defense to be a restatement of the defense of accord and satisfaction. This defense is not appropriate under the FLSA because an individual cannot waive entitlement to FLSA benefits. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 902 (1945) (“No one can doubt but that to allow waiver of statutory wages by agreement would nullify the purposes of the [FLSA].”). Defendant clarifies that the agreement to which the Seventh Affirmative Defense refers is the agreement that Plaintiff would be paid a salary. The Court requests that Defendant clarify this affirmative defense to make it clear that the “agreement” to which it refers is merely the “agreement” that Plaintiff would receive a salary.
The Tenth Affirmative Defense states that “Defendant is entitled to a credit/set-off for any compensation paid to Plaintiff to which he was not otherwise entitled to the extent such credits/set-off are permissible under the FLSA.”Plaintiff claims that this defense is conclusory in that it fails to allege any facts in support of any sort of set-off. Certain set-off defenses are allowable under the FLSA. Brennan v. Heard, 491 F.2d 1, 4 (5th Cir.1974), for instance, permits district courts to apply a set-off where the set-off would not reduce a plaintiff’s wages to an amount below the statutory minimum. Not all set-offs are permissible, however. This Court has previously ruled that “amounts loaned by an employer to an employee””cannot be applied to offset unpaid wages [under the FLSA].” Morrison, 434 F.Supp.2d at 1322 (citing Donovan v. Pointon, 717 F.2d 1320, 1323 (10th Cir.1983)).See also Hutton v. Grumpie’s Pizza & Subs, Inc., Case No. 07-81228-CIV-MIDDLEBROOKS, 2008 WL 1995091, *4 (S.D.Fla. May 7, 2008) (holding that a set-off defense for money employee allegedly stole from employer was inappropriate in FLSA). The Tenth Affirmative Defense does not state what, if any, compensation Plaintiff received to which he was not otherwise entitled, much less the nature of this compensation. The Tenth Affirmative Defense is stricken, but Defendant shall have leave to amend same.
The Sixteenth Affirmative Defense states that “[t]he Complaint fails to state a claim against [Defendant] upon which attorneys’ fees or costs can be awarded.”The FLSA provides that the Court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”29 U.S.C. § 216(b). The Sixteenth Affirmative Defense is stricken without leave to amend.
Defendant also requests attorneys’ fees pursuant to 28 U.S.C. § 1927, which provides for awards of attorney’s fees where
[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
There is no allegation of such conduct in the Answer. Accordingly, the request for fees pursuant to 28 U.S.C. § 1927 is stricken, but with leave to amend.”
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