Thibault v. Bellsouth Telecommc'ns Inc

• Decision Date: 26 July 2010
• Docket Number: No. 08-31226.,08-31226.
• Parties: Louis THIBAULT, Jr., Plaintiff-Appellant,v.BELLSOUTH TELECOMMUNICATIONS, INC.; Robert J. Parker, doing business as Parker Communications; Directional Road Boring, Inc.; Parker Communications, Inc.; Robert W. Parker; Parker Communications, LLC, Defendant-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

612 F.3d 843

Louis THIBAULT, Jr., Plaintiff-Appellant,v.BELLSOUTH TELECOMMUNICATIONS, INC.; Robert J. Parker, doing business as Parker Communications; Directional Road Boring, Inc.; Parker Communications, Inc.; Robert W. Parker; Parker Communications, LLC, Defendant-Appellees.

No. 08-31226.

United States Court of Appeals, Fifth Circuit.

July 26, 2010.

Clement F. Perschall, Jr., Metairie, LA, Arthur J. O'Keefe (argued), Delphin Law offices, Lake Charles, LA, for Thibault.

Wade P. Webster (argued), Fowler Rodriguez Valdes-Fauli, New Orleans, LA, for Bellsouth Telecommunication, Inc., Directional Road Boring, Inc.

Christine S. Goldberg (argued), Kullman Firm, Baton Rouge, LA, for Parker, Parker Communications, inc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Louis Thibault, Jr., (Thibault) brought suit against BellSouth Telecommunications (BellSouth), Directional Road Boring, Inc. (Directional), and Robert J. Parker, Robert W. Parker, and Parker Communications LLC (collectively Parker) arising out of electrical splicing work he performed in New Orleans, Louisiana in the aftermath of Hurricane Katrina. Thibault claimed violations of the Fair Labor Standards Act (FLSA), under 29 U.S.C. § 207(a)(1), a Louisiana state-law breach of contract, and failure to pay wages under La.Rev.Stat. Ann. § 23:631. The trial court dismissed these claims on summary judgment. Thibault appeals the dismissal of the FLSA claim and the breach of contract claim.¹ We address two issues: first, whether Thibault may maintain a claim under the FLSA, and second, whether summary judgment is appropriate for his breach of contract claim.²

BACKGROUND

As a result of Hurricane Katrina, BellSouth's telephone infrastructure suffered serious damage. BellSouth undertook the project of rewiring its entire New Orleans Area telecommunications grid. To complete this project, BellSouth employed “splicers.” A splicer installs, cuts, repairs, and tests various high voltage cables. Because of Katrina, BellSouth could not, by itself, restore phone services to the region. Accordingly, BellSouth contracted with Directional to provide assistance with their project. Directional also employed their own splicers. But even Directional's additional splicers did not suffice. Directional therefore contracted with Parker to provide additional splicers for the project.

Parker contacted Bill Peek, a splicer in Delaware. Parker informed Peek that the job would require about eighty-four hours of work per week at an hourly rate of sixty-eight dollars and a fifty dollar per-diem. He also informed him that splicers would have to provide their own bucket trucks and tools to do the work. Mr. Peek was interested, and told his best friend, Lewis Thibault, of the job opportunity. Mr. Thibault was not a splicer by profession, but had experience as a navy jet engine mechanic. He owned and operated his own business in Delaware called K & L Sales, Inc. His business sold picnic tables, storage buildings, and golf carts. In 2005, his business made over $500,000 in gross profit. Despite his success, Thibault decided to accept Peek's invitation to travel to New Orleans as it would provide a much needed break for him from his marital problems and he felt New Orleans would be an opportunity to “get [his] head clear.” Through Peek, Thibault was able to borrow a spare truck and various tools that the job required. Peek also taught Thibault the basics of splicing over the course of an evening; Thibault was able to learn the rest on the job.

In October, Thibault filled his trailer home with water and food, and the two men drove to Louisiana. From October 4, 2005 to January 6, 2006, Thibault worked as a splicer. In that time, Thibault made $51,628. Everyday, Thibault was required to report to Kenner Yard, a property rented by BellSouth. At the first meeting, Thibault claims that a Parker supervisor informed them that they would be paid sixty-eight dollars an hour, would work at least eighty-four hours a week and would get a per diem and a place to park his motor home. Every day, Thibault showed up to Kenner Yard, and was assigned a specific splicing job in New Orleans. BellSouth engineers created the overall rewiring plan for New Orleans. BellSouth supervisors designated the specific jobs to be done daily, and assigned Directional supervisors to distribute the assignments. When Thibault received his assignment, he was then required to take his truck to the job and work on the problem he was assigned. When completed, Thibault would return to Kenner Yard and would be assigned another splicing job. He worked in thirteen-day intervals with a one-day break in between. While Parker paid Thibault, BellSouth had to approve all vacation and break time. On January 6, Parker laid off Thibault. Directional offered Thibault a job as a splicer, working directly for Directional, but Thibault declined. Instead, he returned to Delaware, and has not worked as a splicer since. Thibault brought this suit against Parker, Directional, and BellSouth for overtime pay under the FLSA, breach of contract, and Louisiana wage law statutes.

ANALYSIS

I. Fair Labor Standards Act

Thibault contends that he is entitled to overtime compensation for hours worked in excess of forty hours per week pursuant to the 29 U.S.C. § 207(a)(1). The FLSA gives employees³ certain protections from employers. The defendants contend that Thibault is not an employee, but an independent contractor. We review Thibault's status de novo. Carrell v. Sunland Constr., Inc., 998 F.2d 330, 332 (5th Cir.1993). In the present setting, a relevant question is whether the alleged employee so economically depends upon the business to which he renders his services, such that the individual, as a matter of economic reality, is not in business for himself. Id. The contractual designation of the worker as an independent contractor is not necessarily controlling. See Hopkins v. Cornerstone Am., 545 F.3d 338, 346 (5th Cir.2008). Instead, we generally use as a guide five, non-exclusive factors: (a) the permanency of the relationship; (b) the degree of control exercised by the alleged employer; (c) the skill and initiative required to perform the job; (d) the extent of the relative investments of the worker and the alleged employer; and (e) the degree to which the worker's opportunity for profit and loss is determined by the alleged employer. Id. at 332-33. These factors are merely aids to analysis and no single factor is determinative. Id. at 332.

Here, we believe the holding of Carrell provides substantial guidance. In Carrell, this Court faced the issue of whether twenty welders were employees under the FLSA for purposes of overtime compensation. Id. The Carrell court went through each of the five factors, and decided overall that the welders were independent contractors. Id. at 334.

A. The Permanency of the Relationship

First Carrell addressed the permanency of the relationship:

“During each of the years relevant to this lawsuit, none of the Welders worked exclusively for Sunland. To work consistently throughout the construction season, which lasts six to nine months, the Welders moved from job to job, company to company, and state to state. Sunland hired the Welders on a project-by-project basis, but made an effort to move the Welders to subsequent projects. The duration of Sunland's construction projects averaged six weeks, but some projects lasted only a few days. The average number of weeks that each Welder worked per year for Sunland varied from approximately 3 weeks to 16 weeks.”

Id. at 332. Like the welders, Thibault did not work exclusively for the defendants. He had his own business selling picnic tables, storage buildings, and customized golf carts, in his home state of Delaware. The nature of splicer work requires travel to different parts of the nation where the jobs are. Splicers travel from job-to-job and from state-to-state looking for work. Thibault and Peek traveled from Delaware to work in the aftermath of Hurricane Katrina. The project lasted only until the re-wiring project after Katrina finished. Thibault intended to return to Delaware after seven or eight months.

B. Degree of Control

Second, the Carrell court addressed the degree of control exercised by the employer:

“While working for Sunland, the Welders performed only pipe-welding work. Sunland assigned the Welders to specific welding work and maintained daily time records for each Welder. Sunland, however, did not specify the amount of time that a Welder could spend on an assignment. Sunland required the Welders to work the same days and hours as the remainder of Sunland's crew, including taking the same daily break periods.”

Id. at 333. The court also relied on the fact that Sunland classified the welders as independent contractors, and many of the welders considered themselves self-employed. Here, the defendants considered the splicers independent contractors. Many of the splicers considered themselves self-employed. The Carrell welders did only welding, and similarly here Thibault only performed splicing work. The defendants assigned the splicers to specific splicing work and maintained daily time records for each splicer. BellSouth required the splicers to work the same days and hours as the remainder of the BellSouth crew, including taking the same daily break periods. In Carrell, Sunland did not control the manner and method of pipe welding. Carrell, 998 F.2d at 332. Likewise, Thibault explained that his supervisors would only come by occasionally, and never specified how Thibault should do the splicing. According to Thibault, the defendants would tell him what needed to be fixed or spliced or give him blueprints, and then it was up to Thibault to go out and fix the problem. Once Thibault finished a particular job, he would report back to be assigned another job.

C. ...