Hogan v. Instore Grp., LLC, CIVIL ACTION NO. 17-10027-DPW
| Decision Date | 11 January 2021 |
| Docket Number | CIVIL ACTION NO. 17-10027-DPW |
| Citation | 512 F.Supp.3d 157 |
| Parties | Paradise HOGAN, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, v. The INSTORE GROUP, LLC, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Brook S. Lane, Hillary A. Schwab, Fair Work P.C., Boston, MA, for Plaintiff.
Benjamin P. Fryer, Pro Hac Vice, D. Jared Nobles, Jr., Pro Hac Vice, Sarah H. Negus, Pro Hac Vice, Moore & Van Allen PLLC, Charlotte, NC, Christopher B. Kaczmarek, Littler Mendelson, Boston, MA, for Defendant.
TABLE OF CONTENTS
Paradise Hogan brought this action seeking damages for his misclassification as an independent contractor by the Defendant InStore Group, LLC ("InStore"), allegedly in disregard of his status as a statutory employee. Mr. Hogan seeks to represent a class of similarly situated plaintiffs — "vendor associates"1 — who have worked on behalf of InStore in Massachusetts since January 6, 2014.
Before me are (1) a motion [Dkt. No. 24] by Mr. Hogan for leave to amend his Original Complaint; (2) a motion [Dkt. No. 25] by InStore for summary judgment; (3) a motion [Dkt. No. 31] by Mr. Hogan for partial summary judgment (as to liability); and (4) a motion [Dkt. No. 29] by Mr. Hogan for class certification.
The crux of the cross-motions for summary judgment is the statutory standard under Massachusetts law for determining whether InStore vendor associates are statutory employees. In Part I, this Memorandum lays out the evidentiary record offered by the parties and marks the procedural travel this case has taken. In Part II, I accept the proposed First Amended Complaint as the operative pleading for this lawsuit. In Part III, I discuss how my allowance of Mr. Hogan's motion to amend the Original Complaint impacts the question of continued subject matter jurisdiction in this case. After explaining in Part III that I will continue to assert supplemental jurisdiction, I address, in Part IV, the parties’ cross-motions for summary judgment in light of the operative pleading, Mr. Hogan's First Amended Complaint. Finally, in Part V, I take up the question of class certification for this litigation and solicit the parties’ proposals for bringing the case to judgment on that basis.
InStore contracts with retailers and manufacturers to provide labor for certain retail services, including inventory correction, order entry, display building, audits, surveys, and rack placing. For example, InStore might bid on a specific retail service that a retailer or manufacturer needs done, such as an audit ensuring certain products are on the shelves or providing demonstration of a product. If InStore wins the bid, then it will contract with the client, negotiate the terms of the contract – including payment terms and expectations for the project – and advertise the specific project on its internal website, Natural Insight, to vendor associates registered with InStore.
Vendor associates are free to select the projects that they want. InStore cannot force vendor associates to take a project. However, InStore does at times solicit vendor associates to to do so. Vendor associates can, and do, select as many or as few projects as they want. Of course, vendor associates make more money through InStore by selecting more projects.
Vendor associates must perform the selected merchandising jobs for InStore's clients during certain windows of time, and some of the jobs require completion on certain dates, at certain times, or during certain lengths of time. These dates and times are specified by InStore's clients. Natural Insight lists some details about the assignments, including geographic location, date, pay, estimated time to complete, and type of task. InStore's clients provide the duties and responsibilities for each project – including the instructions and directions for how the vendor associates are to perform the projects – and clients provide materials for the projects if necessary. At times, the vendor associates transport materials to or from merchandising jobs for InStore clients. In these instances, InStore's clients will ship the materials to InStore; InStore then ships them to the engaged vendor associate. InStore pays the cost of shipping.
InStore's vendor associates go to clients’ stores to execute the clients’ listed retail projects. There are no InStore representatives at the worksites. InStore only hears that a vendor associate did not follow instructions if the retailer or manufacturer informs InStore. InStore clients regularly communicate with InStore about problems with a vendor associate's final performance, and they also communicate with InStore about vendor associate's conduct during performance.
Natural Insight tracks when a vendor associate has completed a project.2 To be compensated, a vendor associate logs on to Natural Insight, selects a project, performs the project, completes a survey report, and submits an invoice. The survey report involves nothing more than marking the project as complete on Natural Insight and uploading a picture of the completed job.
Both InStore and its clients have access to Natural Insight. If a vendor associate fails to submit verification and a photograph via Natural Insight, InStore will inform him that he can get paid if he goes back and takes a photograph of the completed job. Thus, a vendor associate who fails to submit a survey on the same day that he performs a job would still get paid so long as he eventually submits verification.3 InStore does not pay vendor associates for travel time, does not reimburse for mileage traveling to or from jobs, does not reimburse for other expenses, does not pay for transporting materials to or from jobs, does not provide sick leave, does not pay taxes for the vendor associates, and does not provide any employment benefits.
InStore provides vendor associates with a written general policy, titled "The InStore Group Vendor Associate Dress Code for ALL InStore Group Assignments"("the Policy"). It applies to "all Leads, Vendor Associates, and 3rd Party Vendor Associates (VA's)." The Policy provides, for example, that "[p]ants should be ‘khaki’ type slacks," and that "[c]aps" and "[s]horts are not allowed." The Policy also instructs that vendor associates should "[a]lways report to work neat, clean and well groomed, and in appropriate work attire," and "should wear a name badge at all times." The name badge – which describes the wearer as a "Vendor Associate" in the "Merchandising Division" of "The InStore Group" – is provided by InStore for each project. InStore clients can send a vendor associate home for not abiding by the dress code Policy. In such a case, InStore would still pay the vendor associate the agreed upon project rate once the vendor associate completed the project. InStore would not pay for the additional time the vendor associate needed to change into attire conforming to the Policy.
The Policy also bans vendor associates from using personal electronics while working on "resets"4 and includes specific tools that InStore vendor associates must independently bring: a pen, a digital camera or cell phone with a camera, a safety boxcutter, and a printed ISG Store Worksheet ("the Worksheet"). The cell phone with a camera is necessary to take pictures to upload on Natural Insight showing that the project is complete. InStore does not provide vendor associates with any tools, supplies, or equipment.
The Worksheet is a custom work order that tells a vendor associate what job to perform. Worksheets are written by InStore in conjunction with its clients and are used for all jobs. The record is not clear about what content precisely is included in the Worksheet. At a minimum, however, the Worksheet identifies the assignment and the steps for invoicing the job.
Mr. Hogan worked with InStore as a vendor associate and performed retail merchandising services for InStore in Massachusetts in 2015. He signed InStore's "Independent Contractor Vendor & Release Form" (the "Agreement"), a twelve-month contract that automatically renewed unless notice was given a month before the end of the contract's term. However, both InStore and its vendor associates could terminate the Agreement at any point. The Agreement characterized Mr. Hogan as a "self-employed independent contractor" and described his duties as the provision of "in-store merchandising services to retail stores."
The Agreement provided that InStore's role was to "assist [Mr. Hogan] in marketing [his] services," to "communicat[e] information between a client and ...
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