Grenawalt v. AT & T Mobility LLC

642 F. App'x 36
CourtCourt of Appeals for the Second Circuit
DecidedMarch 14, 2016
DocketNo. 15-949-cv
StatusPublished
Cited by22 cases

This text of 642 F. App'x 36 (Grenawalt v. AT & T Mobility LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grenawalt v. AT & T Mobility LLC, 642 F. App'x 36 (2d Cir. 2016).

Opinion

SUMMARY ORDER

Plaintiffs-appellants (“plaintiffs”) appeal from an April 2, 2013 order granting a motion for summary judgment by defendant-appellee AT & T Mobility LLC (“AT & T”), made appealable pursuant to an entry of partial final judgment on March 10, 2015. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Plaintiffs are security guards who brought claims against the following defendants, alleging that they withheld wages in violation of the Fair Labor Standards Act of 1938 (“FLSA”) and New York Labor Law (“NYLL”)1 AT & T, in whose stores plaintiffs provided (and in some cases still provide) security; Gladius, Inc. (“Gladi-us”), a now-defunct security firm hired by AT & T; Centuria, Inc. (“Centuria”), Gla-dius’s alleged successor in interest; and Alpha-Omega Protection Services Corp. (“A-O”) and its principal, Grace DePompo (“DePompo”), who directly employed plaintiffs, and who subcontracted with Gla-dius to provide guards for AT & T stores. Of these, only AT & T is a party to this appeal.

We review an award of summary judgment de novo, affirming “only if the evidence, viewed in the light most favorable to the party against whom it is entered,” demonstrates the absence of genuine issues of material fact. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 140 (2d Cir.2008). Because determining joint employment is “fact-intensive,” awards of summary judgment on this issue, although sometimes appropriate, are rare. See id. at 143-44.

The question presented is whether AT & T qualifies as plaintiffs’ joint employer within the meaning of FLSA. Because FLSA defines “employer” broadly, we have “treated employment for FLSA purposes as a flexible concept to be determined on a case-by-case basis” by looking to the “‘economic reality’ of a particular employment situation.” Id. at 141-42. We have developed three tests — or, more accurately, three sets of factors — to guide our determination of whether a joint employment relationship exists. Id. at 142-43.

The first test, derived from Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir.1984), looks to whether a putative employer exercises “formal control” over a worker. See Zheng v. Liberty Apparel Co., 355 F.3d 61, 72 (2d Cir.2003). Because Carter defines employment more narrowly than FLSA requires, satisfying this test is sufficient, but not necessary, to show joint employment. Id. at 71. The second test, set out in Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir.1988), focuses on whether “the workers depend upon someone else’s business ... or are in business for themselves,” id. at 1059, and thus is “typically more relevant for distinguishing between independent contractors and employees,” Velez v. Sanchez, 693 F.3d 308, 326 (2d Cir.2012), than for determining by whom workers who are assumed to be employees are employed.

Accordingly, this case hinges on a third test, first developed in Zheng v. Liberty Apparel Co., 355 F.3d at 61, which weighed [38]*38six factors in determining whether a garment manufacturer exercised “functional control” over subcontracted workers, and was therefore their employer under FLSA:

(1) whether [the manufacturer’s] premises and equipment were used for the [putative employees’] work;
(2) whether the Contractors] ,.. had a business that could or did shift as a unit
from one putative joint employer to another;
(3) the extent to which [the putative employees] performed a discrete line-job that was integral to [the manufacturer’s] process of production;
(4) whether responsibility under the contracts could pass from one subcontractor to another without material changes;
(5) the degree to which the [manufacturer] or [its] agents supervised [the putative employeers’] work; and
(6) whether [the putative employees] worked exclusively or predominantly for the [manufacturer].

Id. at 72. Zheng emphasized that these factors were “nonexclusive and overlapping,” id. at 75, and that a court “need not decide that every factor weighs against joint employment” in order to grant summary judgment for the putative joint employer, id. at 77 (emphasis in original). In assessing whether an-entity is a joint employer, the determination of “the historical findings of fact that underlie each of the relevant factors” and “the findings as to the existence and degree of each factor” are “findings of fact,” while “the conclusion ... to be drawn from applying the factors, ie., whether an entity is a joint employer,” is a question of law. Id. at' 76.

Applying the Zheng factors to the present case indicates that the District Court erred in awarding summary judgment to AT&T.

1. Whether AT & T’s premises and equipment were used for plaintiffs’ work

The District Court rightly found that there was a material question of fact whether this factor weighed in favor of joint employment, since plaintiffs worked at AT & T stores.

2. Whether A-0 had a business that could or did shift as a unit from one employer to another

There is also a material question of fact whether this factor weighs against joint employment. The District Court misapplied Zheng by asking “[w]hether the Plaintiffs had a business that could or did shift as a unit.” Grenawalt v. AT & T Mobility, LLC, 937 F.Supp.2d 438, 452 (S.D.N.Y.2013) (emphasis supplied) (alteration omitted). But Zheng looked to whether the contractor — in this case, A-0— could shift its employees from one employer to,another. See Zheng, 355 F.3d at 72; see also Barfield, 537 F.3d at 145 (asking whether any “referral agency shifted its employees as a unit from one hospital to another”). Here, A-0 essentially existed only tp.serve AT & T, via Gladius. De~ Pompo formed A-0 in anticipation of Gla-dius’s contract with AT & T; Gladius financed A-O’s entire payroll; A-0 sent all of its guards to AT & T’s stores, except for a one-guard, two-month detail for one other client; and A-0 went out of business after losing its subcontract with AT & T. Although A-0 may have had the theoretical ability to service other customers, as a practical matter it depended entirely on Gladius, and indirectly on AT & T.

3. The extent to which plaintiffs performed a discrete line-job that was integral to AT & T’s business

There is, again, a question of material fact whether this factor weighs against [39]*39joint employment. On one hand, the absence of guards at some AT & T stores, as well as the fact that such guards arguably possess “specialized skills” distinct from those of ordinary retail employees, weighs against joint employment. Cf. Zheng, 355 F.3d at 73.

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642 F. App'x 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grenawalt-v-at-t-mobility-llc-ca2-2016.