Randolph v. Powercomm Constr., Inc.
| Decision Date | 21 August 2015 |
| Docket Number | Case No.: GJH-13-1696 |
| Parties | GREGORY RANDOLPH, et al. Plaintiffs, v. POWERCOMM CONSTRUCTION, INC., et al. Defendants. |
| Court | U.S. District Court — District of Maryland |
In this Fair Labor Standards Act ("FLSA") case, Plaintiffs are former traffic controllers (commonly referred to as "flaggers") who allege that Defendant PowerComm Construction, Inc. and its owner, Defendant David Kwasnik, Sr. (collectively "PowerComm"), failed to pay them appropriate overtime wages. The Court conditionally certified this case as a collective action on March 26, 2014, and the opt-in and discovery periods have now closed. Both parties have filed motions for summary judgment. See ECF Nos. 128 & 130. Additionally, PowerComm has filed a motion to decertify the collective action and Plaintiffs move to certify the collective action. See ECF Nos. 129 & 131. A hearing on these motions is unnecessary. See Loc. R. 105.6 (Md.). For the reasons that follow, both motions for summary judgment are granted, in part, and denied, in part; PowerComm's motion to decertify the collective action is denied; and Plaintiffs' motion to certify the collective action is granted.
PowerComm is an electrical utility construction company. See ECF No. 21 at 22.1 David Kwasnik, Sr. is the President and CEO of PowerComm. See id. Plaintiffs are individuals who work or have worked as "flaggers" for PowerComm. See ECF No. 136-1-136-68. A flagger directs vehicles in traffic to ensure the safety of road workers and traffic while construction is being performed on the road. See ECF No. 130-2 at 2.
PowerComm typically contracts with other companies to provide construction, upgrading, and maintenance services for overhead and underground distribution centers. See ECF No. 21 at 22. Specifically, PowerComm will erect utility poles and towers; replace poles, conductors, insulators, and transformers; install fiber-optic and coaxial cable; cast in place manholes; and remediate and demolish bridges, roads, sidewalks, and buildings. See id. During the relevant time period, PowerComm had one contract to provide flaggers to the Potomac Electric Power Company ("PEPCO"). See id. at 23; see also ECF No. 130-3 at 23. The flaggers typically reported to the PowerComm yard in the morning and remained until PowerComm instructed them where to go. See ECF No. 130-3 at 55-56. PowerComm would then send the flaggers to the location requested by PEPCO. See id. at 24.
Plaintiffs filed their Complaint on June 12, 2013 alleging violations of the FLSA and the Maryland Wage and Hour Law ("MWHL") for failure to pay overtime. See ECF No. 1. On August 14, 2013 and September 27, 2013, PowerComm filed motions for summary judgment regarding the individual claims of Plaintiffs Gregory Randolph and Dana Brown respectively, arguing that Plaintiffs were independent contractors not covered by the FLSA. See ECF Nos. 20 & 34. Judge Grimm denied PowerComm's motions for summary judgment and conditionallycertified the case as a collective action under the FLSA. See ECF Nos. 50 & 51. Since then, almost sixty Plaintiffs have opted-in to the collective action.
On July 2, 2014, PowerComm filed a third motion for partial summary judgment, arguing that, if PowerComm did violate the FLSA, it had done so in good faith thus making liquidated damages unavailable. See ECF Nos. 82 & 83. The Court denied this motion as premature. See ECF No. 116. On August 5, 2014, Plaintiffs filed a Motion for Protective Order and for Sanctions, arguing that PowerComm had paid some of the opt-in Plaintiffs to opt-out of the collective action. See ECF No. 89. On August 29, 2014, the Court prohibited PowerComm from further contact with Plaintiffs regarding this lawsuit and invalidated all opt-out forms. See ECF No. 104.
PowerComm filed the pending fourth Motion for Summary Judgment on January 23, 2015 along with a Motion to Decertify the Conditional Collective Action. See ECF Nos. 128 & 129. Plaintiffs filed a Cross-Motion for Partial Summary Judgment and a Motion for Nonconditional Certification on February 6, 2015. See ECF Nos. 130 & 131. The parties raise numerous issues within their motions, which the Court will address in this Memorandum Opinion.
Further relevant facts will be discussed below. All facts referred to in this Opinion are undisputed unless stated otherwise.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Meson v. GATX Tech. Servs. Corp., 507 F.3d 803, 806 (4th Cir. 2007) (citations omitted); see also Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return averdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of demonstrating that no genuine dispute exists with regard to material facts. See Pulliam Inv. Co., Inc. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). Notably, the moving party can demonstrate that there is no genuine issue of material fact by establishing that "there is an absence of evidence in support of the nonmoving party's case." See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the party seeking summary judgment demonstrates that there is no admissible evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify specific facts showing that there is a genuine issue for trial. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 535 (D. Md. 2007). However, the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . ." See Anderson, 477 U.S. at 247-48 (emphasis in original). The evidentiary materials presented must show facts from which the fact finder could reasonably find for the party opposing summary judgment. See id. at 252.
Both parties move for summary judgment on the issue of employment status, providing competing theories on whether the flaggers were PowerComm employees, who would be covered under the FLSA, or independent contractors, who would not be covered.2 See Schultz v.Capital Int'l Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006). Under the FLSA, an employee is defined as "any individual employed by an employer," 29 U.S.C. § 203(e)(1), and an "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee," id. at § 203(d). The FLSA defines "employ" to include "to suffer or permit to work." Id. at § 203(g). Looking at these definitions, "[a] broader or more comprehensive coverage of employees . . . would be difficult to frame." United States v. Rosenwasser, 323 U.S. 360, 362 (1945). Indeed, these definitions broaden "the meaning of 'employee' to cover some [workers] who might not qualify as such under a strict application of traditional agency [or contract] law principles." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). In contrast to traditional agency law principles, "[i]n determining whether a worker is an employee covered by the FLSA, a court considers the 'economic realities' of the relationship between the worker and the putative employer." Shultz, 466 F.3d at 304 (citations omitted). Under the economic realities test, "[t]he focal point is whether the worker is economically dependent on the business to which he renders service or is, as a matter of economic reality, in business for himself." Id. (citations and internal quotations marks and brackets omitted). The Supreme Court has developed a multi-factor test to aid in determining if the worker is an employee or in business for himself as an independent contractor. See United States v. Silk, 331 U.S. 704, 716 (1947). These factors, often called the "Silk factors" after the case from which they derive, are (1) the degree of control thatthe putative employer has over the manner in which the work is performed; (2) the worker's opportunities for profit or loss dependent on his or her managerial skills; (3) the worker's investment in equipment or material, or his or her employment of other workers; (4) the degree of skill required for the work; (5) the permanence of the working relationship; and (6) the degree to which the services rendered are an integral part of the putative employer's business. See Herman v. Mid-Atlantic Installation Servs., Inc., 164 F.Supp. 2d 667, 671 (D. Md. 2000) (citations omitted). "Rather than looking at one particular factor or applying these factors 'mechanically,' courts look at the totality of the circumstances in applying them." Id. (citations omitted). The ultimate conclusion as to whether a worker is an employee or independent contractor under the FLSA is a legal issue. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 713-14 (1986); Walton v. Greenbrier Ford, Inc., 370 F.3d 446, 450 (4th Cir. 2004). Analyzing the Silk factors below, the Court finds that the flaggers were PowerComm employees covered by the FLSA.
The first Silk factor is the degree of control that the alleged employer has over the manner in which the work is performed. "Where putative employers provide specific direction for how workers, particularly low-skilled workers, are to perform their jobs, courts have weighed the control factor in favor of employee status." Montoya v. S.C.C.P. Painting Contractors, Inc., 589 F.Supp. 2d 569, 579 (D. Md. 2008). "[T]he control element may be satisfied where the putative employer sets the workers' schedules, directs them to particular work sites, requires them to fill out time sheets, and can fire them at will." See id. (citing Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp. 2d 762, 769 (D. Md. 2008)).
Here, PowerComm hired, fired, and trained the flaggers. See ECF No. 130-3 at 33-34 &...
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