JONATHAN GOODMAN, United States Magistrate Judge.
This matter is before the Court on the Motion of Defendants, Sterling Caterers, Inc. and Jonathan Rapp, for Summary Judgment, and the Motion of Plaintiff, Mauricio Altman, for Summary Judgment. [ECF Nos. 39; 43]. In addition to reviewing the motions and memoranda, the Court also held a hearing on the summary judgment motions, which are largely mirror image motions seeking rulings on either side of the same issues.
For the reasons outlined below, the Court
This is an action alleging overtime and minimum wage violations under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., (the "FLSA"). Altman brought this claim against Sterling, a kosher catering company, and Jonathan Rapp, an owner and officer of Sterling. Altman worked as a mashgiach at Sterling during the times relevant to this lawsuit. Altman seeks damages for Defendants' alleged failure to pay him overtime and minimum wages pursuant to the FLSA. [ECF No. 1].
A mashgiach is "a person who certifies that food is kosher." Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 247 F.Supp.2d 728, 729, n. 2 (D.Md.2003). A mashgiach "ensures that the laws of Kashruth are enforced, and that the community's religious trust is protected. Kashruth is compliance with Jewish kosher laws. Compliance with the laws of Kashruth depends on the Mashgiach's integrity and expertise. Additionally, a Mashgiach is essential, may be required on the premises at all times, must be present to check all products brought into the establishment and must also be present during the preparation of food." Id. (emphasis added). An on-site mashgiach like Altman is "a rabbinic monitor provided by a third-party kosher certification and monitoring agency." Ahava Dairy Prods. Corp. v. Swiss Heritage Cheese, Inc., No. CV-02-4045, 2002 WL 31988778, at *1 (E.D.N.Y. Dec. 27, 2002).
Defendants seek summary judgment in their favor and raise the following arguments: (1) Altman is an independent contractor, not an employee, and is therefore not subject to the FLSA, (2) Altman is not subject to the FLSA because he falls under the executive exemption, and (3) the mashgiach position falls within the so-called "ministerial exemption" to the federal employment laws.
After Defendants filed their summary judgment motion, Plaintiff filed his own summary judgment motion (in addition to contesting Defendants' motion). Plaintiff seeks summary judgment on five grounds: he seeks rulings that (1) Sterling is an "enterprise" under the FLSA, (2) Rapp is an employer for FLSA purposes, (3) Altman is a Sterling employee for FLSA purposes, (4) Altman is not an executive exempt under the FLSA, and (5) the FLSA has no ministerial exemption but, even if such an exemption existed under the statute, it is inapplicable to this case.
Defendants do not object to the first two grounds in Plaintiff's summary judgment motion listed above. In their Response [ECF No. 46], Defendants advise that they do not dispute "that the enterprise is subject to the statute for purposes of non-exempt employees" and that "Jonathan Rapp would be an employe[r] under the statute to an employee of Sterling." However, Defendants argue that Plaintiff never "qualified [as] an employee in the first instance" and, if he were an employee, then he would be exempt under the FLSA and the Court should grant summary judgment to Defendants.
Because Defendants do not contest the first two aspects of Plaintiff's summary judgment motion and because Plaintiff's motion supports those two grounds, the Court
All other summary judgment issues raised by the parties are contested, however, and there are genuine issues of material fact that preclude the entry of summary judgment in any party's favor on these remaining issues. Therefore, the Court must deny Defendants' summary judgment motion and the remaining parts of Plaintiff's summary judgment motion.
As noted above, the main issue in both motions is the applicability of the three FLSA exemptions raised by the parties. The Court will therefore address these issues in turn.
Federal Rule of Civil Procedure 56(a) provides that a court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." All evidence considered on a motion for summary judgment must be "viewed in a light most favorable to the nonmoving party." Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir.1994) (citing United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir.1991)).
The Eleventh Circuit summarized the application of FLSA overtime exemptions as follows:
Rock v. Ray Anthony Int'l, LLC, 380 Fed. Appx. 875, 877 (11th Cir.2010) (emphasis added). Thus, a defendant must prove the applicability of any urged exemptions and a court will construe the applicability of exemptions narrowly against the employer. Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir.2004). In addition, the Defendant employers must prove the applicability of an exemption by clear and affirmative evidence. Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1254 (11th Cir. 2001).
Plaintiff cites law to support the proposition that multiple employers can share common control of an employee. [ECF No. 43 at 6]. Nonetheless, Plaintiff does not explicitly argue that Sterling shares control of Plaintiff with another employer and does not request summary judgment specifically on this issue. Id. Defendants do not address this issue in their motion or memoranda, although they do suggest that Circle K is arguably Plaintiff's sole employer. [ECF Nos. 39; 46].
However, the potential issue of multiple employers sharing common control is indirectly relevant to the competing summary judgment motions as it relates to the critical issue of which employer(s) controlled Altman and ultimately whether he was Defendants' employee or an independent contractor.
The FLSA applies to employees but does not apply to independent contractors. Rodilla v. TFC-RB, LLC, No. 08-21352, 2009 WL 3720892, at *15 (S.D.Fla. Nov. 4, 2009); see also Freund v. Hi-Tech Satellite, Inc., 185 Fed.Appx. 782, 782 (11th Cir.2006) (affirming determination that an individual was an independent contractor and therefore exempt from the FLSA). Determining whether an individual is an employee or an independent contractor does not depend on isolated factors; the determination is based on the
The Eleventh Circuit has adopted several factors as a guide:
Freund, 185 Fed.Appx. at 783; see also 29 C.F.R. § 500.20(h)(4) (adopting the economic realities test and the guiding factors as articulated by the federal courts to determine employment status under the FLSA).
In this case, there are genuine disputes over material issues of fact concerning the independent contractor exemption. Defendants emphasize facts showing that they had no (1) control over the manner in which Plaintiff's work was performed and that Circle K had the final say on how Plaintiff performed his duties. [ECF No. 39 at 7]. But Plaintiff points to facts which he argues show that Defendants had control because they, in effect, determined what time Plaintiff had to be at work and scheduled his hours. [ECF No. 43 at 7]. In addition, Plaintiff notes that Defendants were responsible for paying him and kept track of the hours he worked. [ECF No. 43-1 at ¶ 23]. Defendants underscore the fact that neither Defendant could fire Altman because it was up to Circle K and Rabbi Golowinski to decide whether to terminate him.
Defendants did not address (2) Altman's opportunity for profit or loss or (3) investment in equipment. [ECF No. 39 at 7]. Plaintiff notes that he was merely an hourly employee with no opportunity for profit or loss. [ECF No. 43 at 8]. He also points out that he did not (3) invest in any equipment. [ECF No. 43 at 9].
On the other hand, Defendants underscore that (4) Plaintiff received instructions and training from Circle K. [ECF No. 39 at 7]. Plaintiff relies on facts establishing that he did not have a special degree or license and was dependent on the Rabbi's expertise to kosher an oven because Plaintiff was unable to do this. [ECF No. 43 at 9].
Defendants stress that there was no (5) permanency of the working relationship because Circle K originally placed Plaintiff in the job and controlled Plaintiff's continued employment. [ECF No. 39 at 7]. But Plaintiff responds by arguing that the relationship was permanent because it was maintained over a period of years. [ECF No. 43 at 10].
Defendants do not address whether Plaintiff was (6) an integral part of the employer's business. [ECF No. 39 at 7]. Plaintiff argues that his position was integral because he maintained Defendants' kosher status, which was required for Defendants to operate as a kosher food provider. [ECF No. 43 at 10].
While all of these factors are not in dispute, the overriding concern in determining employment status is economic dependence and the Court concludes that the dispute over factors (1) and (5) goes to the heart of this concern. See Freund, 185 Fed.Appx. at 783. An employee is most dependent on whoever controls the nature of his work and the permanency of his position. The core question of dependency is unresolved and genuinely at issue. Thus, the Court denies both motions in regards to the independent contractor exemption.
The overtime requirements of the FLSA are inapplicable to an employee "employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). The ultimate inquiry for application of the executive exemption is whether Plaintiff's "primary duty" was "management." Brillas v. Bennett Auto Supply, Inc., 675 F.Supp.2d 1164, 1168 (S.D.Fla.2009). According to Department of Labor ("DOL") Regulations, the employer must satisfy both a "salary basis" test and a "primary duties" test to demonstrate that an employee qualifies for this exemption. Hogan v. Allstate Ins. Co., 361 F.3d 621, 625-26 (11th Cir.2004) (adopting the salary/duties tests from the DOL regulations as the tests for whether the executive exemption applies); 29 C.F.R. § 541.200.
An employee satisfies the "salary basis" test if he is "compensated on a salary or fee basis at a rate of not less than $455 per week." 29 C.F.R. § 541.200. Payment is on a "salary basis" if the employee receives "a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. § 541.602(a). Payment of an hourly wage is not payment on a "salary basis" within the meaning of the regulations unless a minimum guaranteed predetermined number of paid hours exists. Magyar v. Davey Tree Expert Co., No. 8:08-1181, 2009 WL 3241981, at *2 (M.D.Fla. Oct. 5, 2009).
In this case, the only payment records filed with the Court are unclear and illegible. [ECF No. 39-1]. Moreover, the Court cannot determine from those records whether Plaintiff had a guaranteed minimum predetermined number of paid hours or if he simply received an hourly wage. Id. Neither the illegible records nor the memoranda submitted by the parties establish the specific hours Plaintiff worked, or why some weeks he received two payments on the same day. Id. Defendants' Motion for Summary Judgment argues, relying on these payment records and Mr. Rapp's Affidavit, that payment was $600 per week or $15 an hour.
Relying on Rabbi Golowinski's Deposition, Plaintiff argues that payment was $15 an hour with no minimum guaranteed pay, but does not cite to any specific, undisputed facts to support the requested conclusion that there was no minimum guaranteed pay. [ECF No. 42 at 11]. In his Motion for Summary Judgment, Plaintiff makes the same argument he made in response to Defendants' motion. [ECF No. 43 at 12]. Defendants, in their Response to Plaintiff's Motion for Summary Judgment, make the same arguments they made in their summary judgment motion. [ECF No. 46 at 9]. Taking the facts in a light most favorable to the non-moving parties on the mirror image motions, the Court concludes that there are material issues of fact about whether Plaintiff's pay satisfied the "salary basis" test in both summary judgment motions.
Because the Court finds that material issues of fact exist in both motions
The DOL regulations require satisfaction of three factors for an employee to be a bona fide executive (the list begins at number two because the first factor is the salary basis test). The regulations state that the employee must be one:
29 C.F.R. § 541.100 (2004). This regulation is similar to the former tests (the "long test" and the "short test") and the case law analyzing the former tests still applies. Brillas, 675 F.Supp.2d at 1167.
A court in this District has recognized additional factors under the former tests, including: the frequency of exercise of discretion, relative freedom from supervision and the relationship between the employee's salary and the wages of the people performing the non-exempt work that the employee performed. Id. That court held the analysis for the "primary duty" test should not focus on whether Plaintiff spent most of his time on managerial duties; the test should instead focus on whether Plaintiff's managerial duties constituted the primary value Defendants placed on Plaintiff, Id.; see Moore v. Tractor Supply Co., 352 F.Supp.2d 1268, 1272-79 (S.D.Fla.2004) (finding an employee exempt although he spent 90% of his time on non-exempt work).
In this case, Defendants, in their Motion for Summary Judgment and in their Response to Plaintiff's Motion for Summary Judgment, argue that Plaintiff satisfied the "primary duties"
Plaintiff, in his Response to Defendants' Motion for Summary Judgment and in his Motion for Summary Judgment, argues that the "primary duties" test is not satisfied because he does not have the authority to hire or fire other employees. [ECF Nos. 42 at 12; 43 at 13]. But the material issue of whether Plaintiff's ability to replace himself with the Rabbi's approval constitutes the power to hire and fire as required by the DOL regulations is still open and the parties have not cited authority to conclusively resolve this question. Accordingly, the Court denies both motions' requests to decide whether Plaintiff is an exempt executive.
Neither the Eleventh Circuit nor any of its district courts have ruled (at least in published opinions) on whether there is a ministerial exemption to the overtime requirements of the FLSA. The Eleventh Circuit did recognize a ministerial exemption in a different context: when a Title VII suit would have led to excessive government entanglement with religion, as prohibited by the Establishment Clause of the First Amendment. Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1303-04 (11th Cir. 2000).
But the Court need not grapple with the core issue of whether the ministerial exemption applies to FLSA cases. Instead, the Court can decide the competing summary judgment motions by concluding that the ministerial exemption (if it applies at all) is inapposite here because Sterling is a for-profit commercial caterer, not a religious institution.
Defendants rely upon Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (4th Cir.2004), where the appellate court relied upon the ministerial exemption to affirm a summary judgment in favor of a predominantly Jewish nursing home in an FLSA action brought by a mashgiach seeking unpaid overtime wages. Although the court there used the primary duties test to determine the scope of the ministerial exemption it found existed under the FLSA, it also limited its holding by adopting several principles which restrict the ministerial exemption: (1) the exemption applies only to employment relationships between religious institutions and their ministers; (2) the exemption does not apply to commercial activities of religious institutions; and (3) the exemption does not apply to the religious employees of secular employers or the secular employees of religious employers. Hebrew Home, 363 F.3d at 307.
The written guidelines of the United States Department of Labor, the federal agency tasked with enforcing the FLSA, suggest that no ministerial exemption would immunize Sterling from complying with the wage and hour requirements of the statute. Specifically, the Field Operations Handbook, Wage and Hour Division, U.S. Department of Labor, § 10b03 (1993) provides in relevant part:
Likewise, the same Field Operations Handbook section (in sub-paragraph (b)) also provides that "[p]ersons such as nuns, monks, priests, lay brothers, ministers, deacons and other
Thus, even if the Eleventh Circuit were to recognize a ministerial exemption in FLSA cases — even though it appears nowhere in the statutory text and doing so may be contrary to the well-established rule that exemptions are construed narrowly — Defendants here would need to prove both that Plaintiff's duties are ministerial and that Sterling Caterers is a religious institution. Even the Fourth Circuit Court of Appeals, which decided Hebrew Home, held in a prior case it relied upon in Hebrew Home, that "the ordinary commercial activities of religious organizations are covered by the Act." Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1394, n. 6 (4th Cir.1990) (affirming judgment against church-operated schools for FLSA violations for teachers and nonprofessional support staff); see also Brock v. Wendell's Woodwork, Inc., 867 F.2d 196 (4th Cir. 1989) (holding that the FLSA applies to a masonry contractor which employed children under arrangement with religious group).
Defendants have not demonstrated that Sterling, a for-profit catering business corporation, is a religious institution. In fact, their summary judgment motion does not persuasively show how Sterling is a religious institution or how Altman's duties are ministerial. The same can be said for their identical arguments on the ministerial exemption found in their response in opposition to Plaintiff's mirror image summary judgment motion.
Assuming that the limited ministerial exemption found by the Fourth Circuit in Hebrew Home would also be recognized by the Eleventh Circuit or Supreme Court, comparing the factors relied upon there to the facts here yields significant differences which account for different results.
In Hebrew Home, the court found Hebrew Home to be a religious institution because the by-laws defined it as a religious and charitable non-profit corporation, the Home maintained a rabbi on its staff, the Home employed a mashgiach and placed a mezuzah
Unlike the Hebrew Home defendant, the defendant here — Sterling, a for-profit catering corporation — cannot be said to have the characteristics the Fourth Circuit deemed significant in concluding that the defendant there — a non-profit religious and charitable corporation — was a religious institution. Although Sterling provides kosher food to the Jewish Community Center, it also provides non-kosher food. As a for-profit catering company providing both kosher and non-kosher food, Sterling is more akin to a restaurant serving special food to customers than a religious institution. Therefore, assuming that a ministerial exemption exists under the FLSA — which the Court is not deciding — Defendants cannot meet the first prong of the standard used in the Fourth Circuit because Sterling is not a religious institution.
For the reasons stated above, the Court:
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