RICHARD J. HOLWELL, District Judge.
In this action, Plaintiffs are current or former employees of defendant Metropolitan Cable Communications, Inc. ("Metro") who work as technicians installing telecommunications services provided to New York City residents by defendant Time Warner Cable of New York City ("Time Warner"). Purporting to represent a class of fellow Metro technicians, Plaintiffs allege
Time Warner provides cable services to over one million subscribers in the New York City area. (See Pl.'s 56.1 Stat. ¶ 1.) To install cable for these subscribers, Time Warner contracts with Metro and two other companies, Uptown Communications & Electric ("Uptown"), and Broadband Express, neither of whom is a party to this action. (See Pl.'s 56.1 Stat. ¶ 2.) During the time period relevant to this action, Metro contracted only with Time Warner. (See Pl.'s 56.1 Stat. ¶ 4.)
Metro, not Time Warner, hires technicians to perform installations at Time Warner customers' homes. (See Pl.'s 56.1 Stat. ¶ 2.)
When Metro hires a technician, the relationship between Metro and the technician is governed by a collective bargaining agreement ("CBA") between Metro and Local 3, International Brotherhood of Electrical Workers ("Local 3"). (See Defs.' 56.1 Stat. ¶ 35; Pl.'s 56.1 Stat. ¶ 35.) Among other things, the CBA provides for a 40 hour work week; specifies pay rates for work during that regular week; provides for "time and a half" rates for overtime and work on holidays and double rates for work on Sundays; regulates vacation periods as well as personal, sick and bereavement days; and provides for pension fund contributions. (See Pl.'s 56.1 Stat. ¶ 37.) Time Warner is not a party to the CBA and did not participate in negotiating it. (See Pl.'s 56.1 Stat. ¶ 36.)
Metro equips new technicians with radios; a set of the tools that Time Warner has indicated are necessary to perform installation work; uniforms that display the Metro logo; and, in some cases, trucks with Metro logos that reside at Metro's facility. (See Pl.'s 56.1 Stat. ¶¶ 48, 50, 59, 65-68.) Metro also provides technicians with a Metro identification card. (See Pl.'s 56.1 Stat. ¶ 61.) Time Warner's agreement with Metro requires Metro technicians to report to Time Warner's facility to
New technicians train by shadowing Metro personnel in the field. (See Pl.'s 56.1 Stat. ¶¶ 42-44.) Technicians also attend periodic training sessions regarding new products and work specifications. (See Pl.'s 56.1 Stat. ¶¶ 42-44.) There is evidence that Time Warner personnel attended and provided documents used at some of these training sessions, in particular a session regarding customer relations. However, the parties dispute the extent to which Time Warner personnel train Metro technicians. On the other hand, there is documentary evidence that Time Warner sends Metro so-called "Tech Tips" and other communications containing installation specifications, and Plaintiffs testified that Metro distributed similar communications to Metro technicians. (See Dec. of R. Asher, Dec. 22, 2010 ("Asher Dec.") Ex. 2 at 31; id. Exs. 44-48; Pl.'s 56.1 Stat. ¶ 126.)
Metro technicians report to work at Metro's facility at times specified by Metro managers and are required to contact Metro managers if they will be late or absent. (See Pl.'s 56.1 Stat. ¶¶ 70, 71.) None of the Plaintiffs has ever contacted Time Warner for that reason. (See Pl.'s 56.1 Stat. ¶ 72.) By the time that technicians arrive at work, Time Warner has provided Metro with 700-800 work orders based on installation requests from Time Warner customers. (See Pl.'s 56.1 Stat. ¶ 73.)
Metro technicians normally perform their work alone. However, their work does require some communication with both Metro and Time Warner. Metro technicians sometimes call Metro foremen regarding technical issues or missing equipment. (See Pl.'s 56.1 Stat. ¶¶ 80, 81.) And Metro technicians contact Time Warner if they have difficulty installing a modem; if a customer asks to make changes to the Time Warner service he or she has ordered; if a customer is not at home; or if the technician encounters difficulties accessing the premises. (See Pl.'s 56.1 Stat. ¶ 80.) In addition, Metro technicians contact Time Warner's automated ARU system to connect customers' cable service. In doing so, the technicians report the time that they began the installation job and the automated system records the connection
Both Metro and Time Warner assess the technicians' work. Metro foremen conduct some quality control inspections. (See Pl.'s 56.1 Stat. ¶ 82.) Time Warner personnel do more: they conduct some 800-900 quality control assessments per week, amounting to 2-4% of all installations that Metro technicians perform. (See Pl.'s 56.1 Stat. ¶ 86.) Time Warner memorializes in writing the results of these assessments and provides copies to Metro. (See Pl.'s 56.1 Stat. ¶ 88.) Time Warner also contracts with an outside vendor to contact customers within 45 minutes regarding installations that Metro technicians have performed at their homes. (See Pl.'s 56.1 Stat. ¶ 96.) In this system, known as ECHO, Metro and Time Warner have access to customers' responses in real time. (See Pl.'s 56.1 Stat. ¶ 97.) Finally, Time Warner compiles and provides to Metro data as to how often technicians use Time Warner's automated systems, a snapshot of the number of open and completed installations, how often Metro technicians complete installations in specified time windows, and how often technicians must make additional visits to correct installation problems. (See Def.'s 56.1 Stat. ¶ 92; Pl.'s 56.1 Stat. ¶¶ 92, 144-154.)
Time Warner and Metro discuss these assessments and reports at monthly meetings. (See Pl.'s 56.1 Stat. ¶¶ 93-94, 168-70.) Metro uses the assessments and reports in determining if, when, and how to discipline Metro technicians. (See Def.'s 56.1 Stat. ¶¶ 90, 143.) In addition, Plaintiffs have presented evidence that Time Warner contacts Metro regarding the worst performing technicians and asks Metro to advise "what actions will be taken." (See Silverman Dec. Exs. 29-30.) However, though the parties dispute whether Metro or Time Warner was actually responsible for disciplining or firing certain technicians, the record does not contain any evidence that Time Warner has ever instructed Metro to discipline or fire any individual technician. Neither of the Plaintiffs who were terminated discussed his termination with anyone from Time Warner; rather, both were notified by Metro personnel. (See Pl.'s 56.1 Stat. ¶¶ 24-25.)
It is undisputed that Time Warner has the power to remove any Metro technician from the list of technicians authorized to perform installations at Time Warner customers' homes. (See Pl.'s 56.1 Stat. ¶¶ 29-30.) Yet Time Warner's decision to de-authorize a technician does not mean that the technician can no longer work for Metro or perform installations for Time Warner. A de-authorized technician can perform other kinds of work for Metro or leave Metro to install Time Warner cable as an Uptown or Broadband Express employee. (See Pl.'s 56.1 Stat. ¶¶ 31, 34.)
At the end of each week, Metro provides Time Warner with an invoice for every job that Metro technicians have completed and requests payment at per job rates established by Time Warner. (Asher Dec. Ex. 2 at 30.) Metro identifies the rate applicable to a given job based on the rate code that Time Warner has assigned to that job and which appears on the work orders. (Pl.'s 56.1 Stat. ¶ 35; Asher Dec. Ex. 3 at 45-46.) Time Warner checks the invoice against its own data regarding the number of completed installations, deducts faulty installations, and pays Metro the difference. (See Aff. of J.W. Baker Jan. 25, 2011, ¶ 2; Asher Dec. Ex. 2 at 93-94.) Pursuant to the CBA with Local 3, Metro pays its technicians at fixed rates for each hour of work. (See Silverman Dec. Ex. 44 at 54-55, 60; Ex. 46 at 22-23; Ex. 47 at 25-26; Ex. 48 at 48; Asher Dec. Ex. 18
On August 3, 2009, Plaintiffs filed this action against Metro and Time Warner alleging that they had violated the FLSA by failing to pay Metro technicians one and a half times their normal hourly wage for each hour they worked in excess of forty hours in certain weeks. Plaintiffs filed an amended complaint on October 23, 2009. On February 24, 2010, Plaintiffs moved to amend their complaint a second time to add a retaliation claim against Time Warner, Metro, and various Metro executives. Specifically, Plaintiffs sought leave to allege that that the defendants had retaliated against them for filing or joining this action by reassigning them to less lucrative or more demanding routes and assigning the most lucrative routes to new or less senior technicians. The Court granted Plaintiffs' motion on April 29, 2010, 2010 WL 1778794, and Plaintiffs filed a second amended complaint on May 5, 2010.
The parties engaged in discovery limited to the issue of whether Time Warner jointly employed Metro technicians. On November 8, 2010, Time Warner moved for summary judgment on the ground that it does not jointly employ Metro technicians.
Summary judgment is proper if the moving party shows that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In deciding whether there is a genuine issue of material fact as to an element essential to a party's case, the court must examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir.2002) (internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, a party opposing summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial." Fed. R. Civ. Proc. 56(e).
Under the law in this Circuit, "the inquiry as to whether an entity is an employer for purposes of the FLSA involves three determinations. First, there are historical findings of fact that underlie each of the relevant factors. Second, there are findings as to the existence and degree of each factor. Finally, there is the conclusion of law to be drawn from applying the factors, i.e., whether an entity is a joint employer." Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61, 76 (2d Cir.2003) ("Zheng I"). "In order to grant summary judgment for defendants, the District Court would have to conclude that, even where both the historical facts and the relevant factors are interpreted in the light most favorable to plaintiffs, defendants are still entitled to judgment as a matter of law." Id. "To reach that conclusion, the Court need not decide that every factor weighs against joint employment." Id. at 76-77 (emphasis in original).
The FLSA provides that "no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). Hence only an "employer" can be liable for failing to pay "time and a half" rates for overtime.
The term "employer" in the FLSA "includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization." 29 U.S.C.A. § 203(d). "Because the statute defines employer in such broad terms," Herman v. RSR Security Services Ltd., 172 F.3d 132, 139 (2d Cir. 1999), and its definitional section uses the term it purports to define, the statute "offers little guidance on whether a given individual is or is not an employer." Id.
In the usual case, a court faced with such an ambiguous statute might turn to how the law has elsewhere defined the employer-employee relationship. Indeed, "[i]n instances where Congress uses terms — such as employer and employment — `that have accumulated settled meaning under ... the common law,' courts generally infer, unless the statute indicates otherwise, that `Congress means to incorporate the established meaning of these terms,' e.g., `the conventional master-servant relationship as understood by common-law agency doctrine.'" Barfield v. New York City Health and Hosp. Corp., 537 F.3d 132, 141 (2d Cir.2008) (ellipsis in original) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)).
"An entity `suffers or permits' an individual to work if, as a matter of `economic reality,' the entity functions as the individual's employer." Zheng I, 355 F.3d at 66; see also Barfield, 537 F.3d at 141 ("[T]he determination of whether an employer-employee relationship exists for purposes of the FLSA should be grounded in `economic reality rather than technical concepts,' Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961) (internal quotation marks omitted), determined by reference not to `isolated factors, but rather upon the circumstances of the whole activity,' Rutherford Food Corp. v. McComb, 331 U.S. at 730, 67 S.Ct. 1473."). Again, it is somewhat circular to define one who "employs" in terms of whether "the entity functions as the individual's employer." However, the purpose of the "economic reality" test — "to expose outsourcing relationships that lack a substantial economic purpose" — points to a lodestar for determining when an employer has outsourced work in name only: the "overarching concern is whether the alleged employer possessed the power to control the workers in question." Herman, 172 F.3d at 139.
Notably, control in this context is not an all or nothing concept. "Control may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control `do not diminish the significance of its existence.'" Id. (quoting Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir.1982)). And "even when one entity exerts `ultimate' control over a worker, that does not preclude a finding that another entity exerts sufficient control to qualify as a joint employer under the FLSA." Barfield, 537 F.3d at 148. Accordingly, the Second Circuit has recognized that a worker can have more than one employer for purposes of the FLSA. Indeed, "[t]he regulations promulgated under the FLSA expressly recognize that a worker may be employed by more than one entity at the same time." Zheng I, 355 F.3d at 66; see also Barfield, 537 F.3d at 141. Cf. 29 C.F.R. § 791.2 (2003).
However, "the broad language of the FLSA ... demands that a district court look beyond an entity's formal right to control the physical performance of another's work before declaring that the entity is not an employer under the FLSA." Zheng I, 355 F.3d at 69. Hence not only is "[n]o one of the four factors standing alone... dispositive," Herman, 172 F.3d at 139, but the Second Circuit has "expressly denied" the proposition "that the four factors borrowed from the Ninth Circuit in Carter are the exclusive touchstone of the joint employment inquiry under the FLSA." 355 F.3d at 71. While those factors "can be sufficient to establish employer status," "Carter did not hold ... that those factors are necessary to establish an employment relationship." Id. (emphasis in original). Rather, "in certain circumstances, an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them." Id. at 70.
In Zheng I, the Second Circuit identified six additional factors that district courts "will find illuminating" in determining whether a putative joint employer exercises functional control:
Id. at 71-72. A district "court is also free to consider any other factors it deems relevant to its assessment of the economic realities." Id. at 72.
Applying similar multifactor tests, several federal courts, including one in this Circuit, have held that telecommunications service providers such as Time Warner are not joint employers of contract technicians who install those services. See Lawrence v. Adderley Ind., Inc., No. CV-09-2309, 2011 WL 666304 (E.D.N.Y. Feb. 11, 2011); Jacobson v. Comcast Corp., 740 F.Supp.2d 683 (D.Md.2010). Cf. Smilie v. Comcast Corp., No. 07-CV-3231 (N.D.Ill.) (Slip Op., Feb. 25, 2009) (attached as Ex. 52 to Silverman Dec.). But see Keeton v. Time Warner Cable, Inc., No. 2:09-CV-1085, 2011 WL 2618926 (S.D.Ohio, July 1, 2011) (applying different Sixth Circuit test and finding material issues of fact as to joint employment issue). Recently the Supreme Court of the State of New York, Queens County, granted summary judgment to Time Warner in a purported class action by MCC employees that raised claims virtually identical to those presently before the Court. Rodriguez v. Metro Cable Commc'ns, Inc., No. 21517/2008 (N.Y.Sup.Ct. July 26, 2011).
The Court will begin its analysis by applying the four Carter factors "to examine the degree of formal control," if any, exercised by Time Warner. Barfield, 537 F.3d at 143. If Time Warner "lacked formal control," the Court will then apply the six Zheng factors and any other relevant factors "to assess whether" Time Warner "nevertheless exercised functional control" over Plaintiffs. Id.
The first factor relevant to formal control is "whether the alleged employer... had the power to hire and fire the employees," Carter, 735 F.2d at 12. In terms of hiring, the undisputed evidence shows that Time Warner does not receive applications from putative Metro technicians; interview or review applicants; inform applicants that they have been hired; or provide new hires with employment forms. It is further undisputed that none of the Plaintiffs met or communicated with any Time Warner employee prior to being hired as a Metro technician. While Time Warner requires Metro to conduct criminal background checks of applicants, Time Warner does not require Metro to report the results of the background checks and Metro does so only on occasion. (See Silverman Dec. Ex. 41 at 95.) In short, Metro, not Time Warner, has the power to hire Metro technicians.
Whether Time Warner has the power to fire technicians requires more extended discussion. It is undisputed that plaintiffs Jean-Louis and Pinareyes — the only named plaintiffs who were terminated — learned about their termination from Metro employees and that no Time Warner employee ever discussed the termination with Jean-Louis or Pinareyes. (See Pl.'s 56.1 Stat. ¶¶ 25-27; Silverman Dec. Ex. 44 at 101.) Nor do Plaintiffs point to any evidence that Time Warner actually terminated any Metro technician.
Plaintiffs, however, appeal to the common sense notion that Metro has no reason to continue employing technicians who cannot perform installations or whom Time Warner — its sole source of revenue — finds problematic. Thus Plaintiffs argue that by preventing a given Metro technician from performing installation work while employed by Metro or informing Metro that a given technician has failed quality control metrics, Time Warner can effectively eliminate any reason for Metro to continue employing a given technician. In other words, like the plaintiffs in Jacobson, Plaintiffs argue that "[b]ecause the Installation Companies have virtually no positions for a technician to fill other than performing installation work for Comcast, de-authorization in effect constitutes `firing.'" Jacobson, 740 F.Supp.2d at 689.
Time Warner notes that the Jacobson court rejected that argument. Indeed, the court found that the first Carter factor did not weigh in favor of joint employment because it was "only in the context of quality control ... that Comcast exercises power over the hiring or firing of technicians." Id. at 689-90; accord Lawrence, 2011 WL 666304 at *9. But it is unclear why that makes a difference. For one thing, since poor performance seems like one of the most common reasons for firing an employee, recognizing an exception for the de facto power to fire for poor performance would threaten to swallow the rule. For another, "[c]ontrol may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control do not diminish the significance of its existence." Herman, 172 F.3d at 139 (quotation marks omitted). If Time Warner has the de facto power to fire Metro technicians for poor performance, whether or not Time Warner has the de facto power to fire Metro technicians for reasons unrelated to their performance would not necessarily "diminish the significance" of the power it does have.
The problem for Plaintiffs is that their economic reality argument has more to do with theory than reality. The only evidence in the record regarding Time Warner's decision to remove Metro technicians from the list of persons authorized to perform installations indicates that Time Warner did so only in the case of a handful of technicians out of the hundreds Metro employed. (See Defs.' 56.1 Stat. ¶ 32.) Nor is there any evidence in the record that Time Warner ever asked, let alone demanded,
It is true that Time Warner's economic leverage might have led Metro to conclude that it could not afford the risk of any action short of firing a problematic technician even if Time Warner had not explicitly demanded as much. But there is no evidence in the record that Metro terminated any employee about which Time Warner specifically complained, never mind that Metro did so as a matter of course. On the contrary, e-mails show that Metro personnel told Time Warner that "more information is needed when doing an analysis to grade a technician"; that "numbers on the[ir] own stand no merit"; and that one of the technicians about whom Time Warner inquired was actually "a very good tech." (See Asher Dec. Ex. 61; Silverman Dec. Ex. 28.) That record undermines Plaintiffs' suggestion that a complaint from Time Warner was an order to fire.
Plaintiffs also point to Metro General Manager Bill Baker's testimony regarding a message to Metro technicians in which he stated that "they," meaning Time Warner, "will not want any tech that doesn't ground," a process designed to reduce dangerous electrocution risks, "properly in their system" and that the technicians "know what that means to [them]." (See Asher Dec. Ex. 2 at 229.) However, as the testimony itself makes clear, Baker did not testify that he would terminate any technician who was removed from Time Warner's system for failing to ground. Baker merely testified that, whether or not Time Warner had de-authorized such a technician, Metro itself would as a matter of course terminate any employee who failed to ground because Time Warner would not want such an employee to enter customers' homes. It is hardly an admission that Time Warner had the power to fire Metro technicians to say that Metro would terminate technicians who posed a safety risk to customers of its only client and proved unable to comply with standards of service that client had identified as important.
In short, this case is far afield from Barfield where it was undisputed that "Bellevue had the undisputed power to hire and fire at will agency employees referred to work on hospital premises...." Barfield, 537 F.3d at 144. On the contrary, considering the record as a whole, it is clear that Time Warner had no power to hire or fire any Metro technician but instead had the more limited power to de-authorize a technician. Accordingly, the first Carter factor does not support a finding that Time Warner jointly employed Metro technicians.
The second factor relevant to formal control is whether the putative joint employer "supervised and controlled employee work schedules or conditions of employment," Carter, 735 F.2d at 12.
It is undisputed that Metro technicians receive job assignments as follows. Time Warner receives requests to install Time Warner cable services. Based on those requests, Time Warner creates work orders identifying the customer who has made the order, the services required, and the time window in which the customer has requested that the services be performed. (See Pl.'s 56.1 Stat. ¶ 74.) Time Warner provides the work orders to Metro. (See Pl.'s 56.1 Stat. ¶ 73.) However, Time Warner
Plaintiffs argue that a technician's "day is fully controlled by TWCNYC's time windows" in which Time Warner expects Metro to complete installation jobs. (Pl.'s Opp'n at 10.) That argument ignores the difference between affecting and supervising or controlling. To be sure, the fact that Time Warner tells Metro to perform certain jobs at certain times affects when technicians perform those jobs; if Time Warner does not send Metro any work orders for jobs between 3 and 4 p.m., no Metro technicians will work during those hours. However, if Time Warner does send Metro work orders for jobs between 3 and 4 p.m., Metro, not Time Warner, decides which technicians will work on which job and whether a technician will work on any jobs in that period at all. In fact, plaintiff Pinareyes testified that on some days, Metro did not assign him any routes and the earlier he arrived at work, the better chance he had to get a route. (See Silverman Dec. Ex. 48 at 136-37.) That testimony makes clear that Time Warner did not determine whether or when Metro technicians worked. See Smilie, Slip. Op. at 6 ("Comcast simply gave Frontline work pursuant to the contract, work that Frontline was free to perform using whatever staffing manner it chose."); Cf. Moreau v. Air France, 356 F.3d 942, 950 n. 5 (9th Cir.2004) (Air France did not control schedules of contract personnel servicing planes on the tarmac where Air France "schedule[d] its flight ... which necessarily indicated when the services were to be performed" but contractors "remained responsible for designating which employees would report to service the aircraft").
Nor did Time Warner supervise or control Metro technicians' "conditions of employment." In Zheng I, the Second Circuit cautioned that "the degree to which the defendants supervise the plaintiffs' work ... can be misinterpreted to encompass run-of-the-mill subcontracting relationships." Zheng I, 355 F.3d at 74. Hence while "the law does not require an employer `to look over his workers' shoulders every day in order to exercise control,'" Barfield, 537 F.3d at 147 (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1060 (2d Cir.1988)), "supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry, as such supervision is perfectly consistent with a typical, legitimate subcontracting arrangement." Zheng I, 355 F.3d at 75.
Plaintiffs make much of the fact that Metro used the quality control assessments in disciplining technicians. That is hardly surprising; indeed, it would be strange if Metro ignored reports regarding its employees' performance. However, the fact that Metro used data from Time Warner in making decisions about its employees' conditions of employment does not mean that Time Warner controlled those conditions where there is no evidence that any Time Warner directly contacted any Metro technician regarding the results of any quality control assessment or was present when any Metro technician was disciplined. Nor is there any evidence that Time Warner instructed Metro to take any particular disciplinary action or provide any particular assistance to any Metro technician on the basis of a quality control assessment. At most, the evidence shows that Time Warner provided the results of quality control assessments to Metro, discussed them on a general level in monthly meetings, and occasionally inquired about what Metro planned to do about the worst performing technicians. That evidence cannot justify an inference of joint employment.
There is also evidence that Time Warner played a limited role in training Metro technicians. For example, Time Warner personnel were present at, participated in, and provided materials for some training sessions regarding customer care and new equipment. (See Pl.'s 56.1 Stat. ¶ 41; Asher Dec. Exs. 57, 59.) And Time Warner sent Metro "Tech Tips" and other training communications that Metro distributed to technicians. (See Asher Dec. Exs. 44-48; Pl.'s 56.1 Stat. ¶ 126; Silverman Dec. Ex.
Finally, Plaintiffs point to evidence that Metro technicians communicate with Time Warner while performing their work. For example, Metro technicians may contact Time Warner if they have difficulty installing a modem; if a customer asks to make changes to the Time Warner service he or she has ordered; if a customer is not at home; or if the technician encounters difficulties accessing the premises. (Pl.'s 56.1 Stat. ¶ 80.) Yet this is not evidence that Time Warner controls how Metro technicians do their jobs; it is merely a function of the fact that Metro technicians install Time Warner cable. It would be quite unusual if a service provider never had any contact with its client, and the existence of such contact does not support an inference of supervision and control.
In sum, the undisputed facts demonstrate that Time Warner did not control Metro technicians' work schedules. Plaintiffs' evidence regarding Time Warner's quality control assessments cannot establish control of work schedules or conditions of employment under the law of this Circuit. And while Time Warner did play some minimal indirect role beyond quality control in the ongoing training of Metro technicians, the second Carter factor weighs strongly in the other direction.
The third factor relevant to formal control is whether the putative joint employer "determined the rate and method of payment," Carter, 735 F.2d at 12. It is undisputed that the agreement between Metro and Local 3 provides for a regular eight hour day and a 40 hour work week; fixed hourly rates of compensation for work during those regular hours; "time and a half" rates for overtime work and work on holidays; and double rates for work on Sundays. (See Pl.'s 56.1 Stat. ¶ 37; Silverman Dec. Ex. 10.) It is further undisputed that Time Warner is not a party to the agreement between Metro and Local 3 and played no part in negotiating it. (See Pl.'s 56.1 Stat. ¶ 36.) And it is also undisputed that Metro technicians were paid by Metro with paychecks containing a Metro logo; that these payments were reflected on W-2 forms issued by Metro; and that no plaintiff ever received any payment from Time Warner. (See Pl.'s 56.1 Stat. ¶ 39.) These undisputed facts would seem to weigh strongly in favor of finding that Time Warner did not determine Metro technicians' "rate and method of payment." Cf. Jacobson, 740 F.Supp.2d at 692.
Plaintiffs, however, argue that "[t]he rates technicians are paid are wholly dependent on the rates TWCNYC pays to Metro." (Pl.'s Opp'n at 12.) The argument runs as follows. Time Warner assigns a billing code to each installation job depending on the type of work performed. Those billing codes appear on the work
The problem for Plaintiffs is that there is no competent evidence that (a) Metro does not pay technicians for jobs that Time Warner charges back to Metro or (b) that Time Warner instructs Metro to do so. Baker has submitted a sworn affidavit averring that "Metro does not pass the charge-back on to a technician for an installation that is not completed according to TWCNYC's specifications." (See Aff. of J.W. Baker Jan. 25, 2011, ¶ 3.) In opposition to Baker's statement, Plaintiffs submit only (1) a conclusory statement by a Metro technician that "Metro's pay of its techs is controlled by TWCNYC" (see Asher Dec. Ex. 16, Aff. of L. Barco, Dec. 6, 2010 ¶ 9; see also id. ¶ 5), and (2) a statement by another technician that Baker told him that Metro changed the rate that it pays Metro technicians for certain jobs when Time Warner changed the billing codes for those jobs (see Asher Dec. Ex. 60, Aff. of R. Santana, Dec. 17, 2010, ¶¶ 47-53). The first statement cannot defeat summary judgment and the latter makes a very different argument regarding how Metro provides additional per job compensation, not how Metro compensates its technicians on an hourly basis — the focus of the FLSA and this suit.
It is true that the Second Circuit in Barfield recognized that a putative joint employer who pays a contractor based on the number of hours the contractor's employees work has an effect on the amount that the contractor will pay those employees per hour. And this might be a different case if Time Warner calculated the number of hours that Metro technicians worked and paid Metro for those hours, and then Metro used those calculations to pay its technicians. In those circumstances, Time Warner's "calculations" would have "conclusively determined the number of hours for which [the technicians] would be paid" and the hourly rate that Time Warner paid Metro would have "effectively set a cap on the hourly rate" that Metro would pay the technicians. Barfield, 537 F.3d at 145 (reasoning that hospital that calculated nurses' hours and paid referral agencies based on those calculations "exerted some control over [the plaintiff nurse]'s pay").
But Time Warner never calculates Metro technicians' hours or compensates Metro based on those calculations. On the contrary, the crux of Plaintiff's argument is that Time Warner's rates per job effectively determines how much Metro paid its technicians in addition to the hourly and overtime rates set by the agreement between Metro and Local 3. Yet what Time Warner paid Metro for a given job no more determines what Metro pays technicians per hour than customers who buy a given product determine how the companies who produce the product pay the employees who actually make it. To be sure, any company A that provides revenue to company B affects what company B pays its employees, but the test is whether a
The fourth factor relevant to formal control is whether the putative joint employer "maintained employment records." Carter, 735 F.2d at 12. It is undisputed that Time Warner does not maintain personnel files for individual employees, time sheets, pay stubs, or government employment forms. Further, it is undisputed that, unlike the defendant in Barfield, Time Warner never "maintained employment records on the matter most relevant to overtime obligations under the FLSA: the hours worked" by individual Metro technicians. Barfield, 537 F.3d at 144 (emphasis added).
Time Warner does receive from Metro lists of Metro technicians and their technician numbers — numbers which also appear on work orders that Metro technicians submit after completing installation jobs. Further, the fact that Time Warner compiles quality control data on individual technicians suggests that Time Warner is in possession of raw data regarding how many jobs — as opposed to hours — an individual technician has completed. Moreover, through its automated systems, Time Warner is aware of when a technician has started and completed a given job. Hence, in theory, Time Warner could make assumptions as to an installer's travel time and roughly calculate how many hours an individual technician has worked each day. But there is no evidence that Time Warner does so. Nor is there any evidence that Time Warner maintains records designed to track how many jobs an individual technician completes.
Instead, the record shows that, at most, such data appeared on quality control records that Time Warner provided to Metro or in the aggregate on documents that Time Warner used to verify that Metro correctly calculated the amount of work that Metro technicians actually performed. (See Asher Dec. Exs. 23, 24, 29, 30, 31.) However, because Metro is not required to notify Time Warner when it fires a technician (see Pl's 56.1 Stat. ¶ 24) and can assign a substitute technician the same technician number but only occasionally updates lists identifying the name of the technician assigned to each number (see Asher Dec. Ex. 2 at 26-27), it is far from clear that Time Warner's data regarding technician codes actually corresponds to data on any individual technician.
Hence this is not a case where a putative joint employer "signs off on" time sheets completed by each plaintiff, "verif[ies] the number of hours worked by each" plaintiff and "then provides records of the hours worked" to the plaintiff's contractor employer who uses the records to compensate the plaintiff on a per-hour basis. Barfield, 537 F.3d at 136. Rather, this is a case where Time Warner maintains data that might be used to determine how
Jacobson is instructive in that regard. In that case, Comcast, like Time Warner here, maintained "arrival and departure data for each cable technician" and "lists of cable technicians and their employment status," among other information. Jacobson, 740 F.Supp.2d at 692. Where there was "no evidence to indicate that maintenance of this type of information [wa]s used to control a technician's day to day employment, or that Comcast retain[ed] records for any purpose beyond quality control," the court found that retaining such "records is only an extension of Comcast's control procedures .... to ensure that Comcast receives the services for which it is entitled, and that the individuals fulfilling them are authorized to do so." Id.; accord Lawrence, 2011 WL 666304 at *9.
That reasoning is persuasive. It would be strange if "supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry," Zheng I, 355 F.3d at 75, but records created as part of that supervision weighed in favor of finding joint employment. Since Time Warner's records correlating Metro technician numbers with particular installation jobs do not translate into Metro technicians' per hour compensation but are instead maintained largely as part of Time Warner's quality control process, those records do not weigh in favor of finding that Time Warner jointly employs the technicians.
In sum, the first, third, and fourth Carter factors weigh against finding that Time Warner jointly employed Metro technicians and the second Carter factor weighs almost entirely in the same direction. While there is evidence that Time Warner conducted minimal supervision beyond quality control and that Metro technicians communicated with Time Warner in certain circumstances, this evidence alone cannot sustain the conclusion that Time Warner "possessed the power to control the workers in question" where the other Carter factors negate that conclusion. Herman, 172 F.3d at 139. Rather, the undisputed facts demonstrate that Time Warner did not exercise "formal control" over Metro technicians. Barfield, 537 F.3d at 143.
That is not the end of the matter, however, because "in certain circumstances, an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them." Zheng I, 355 F.3d at 70. The Court must therefore apply the six factors the Second Circuit identified in Zheng as well as any other factors that appear relevant to determine whether Time Warner exercised functional control over Metro technicians as a matter of "economic reality."
The first Zheng factor is "whether [the putative joint employer]'s premises and equipment were used for the plaintiffs' work," id. at 72. This factor "is relevant because the shared use of premises and equipment may support the inference that a putative joint employer has functional control over the plaintiffs' work." Id. Nevertheless, the Second Circuit has cautioned that "shared premises" are not "anything close to a perfect proxy for joint employment (because they are ... perfectly consistent with a legitimate subcontracting relationship)...." Id.
The record shows that Metro technicians visit Time Warner's premises only once per year to pick up their identification
Plaintiffs make several efforts to overcome this strong evidence that Metro technicians do not use Timer Warner's premises and equipment. First, Plaintiffs argue that Metro technicians work in Time Warner's customers' homes. (See Pl.'s Opp'n at 30.) That argument makes no sense because a home belongs to the customer, not Time Warner.
Second, Plaintiffs argue that Metro technicians install equipment that belongs to Time Warner. (See id.) That argument proves too much. Metro technicians who connect cables to Time Warner cable boxes no more "use" those boxes than garment workers use pieces of fabric. The cable boxes and fabric are not tools used to complete the service or finish the product; they are uncompleted versions of the service or product. Yet if finishing a product weighed in favor of finding that the producer of the product jointly employs the person finishing it, then any company that outsourced any phase of production would jointly employ anyone who did any work on the product. That result cannot follow from applying a test that "ensures that the statute is not interpreted to subsume typical outsourcing relationships." Zheng I, 355 F.3d at 76.
Finally, Plaintiffs point to evidence that Time Warner provides Metro technicians with "lock box keys." (See Def.'s 56.1 Stat. ¶ 53.) However, the fact that Time Warner provides that lone piece of equipment is overwhelmingly outweighed by what Time Warner does not provide and the fact that Metro technicians visit Time Warner facilities only once per year. Accordingly, the first Zheng factor weighs against finding that Time Warner jointly employs Metro technicians.
The second Zheng factor is "whether the Contractor Corporations had a business that could or did shift as a unit from one putative joint employer to another," Zheng I, 355 F.3d at 72. This factor "is relevant because a subcontractor that seeks business from a variety of contractors is less likely to be part of a subterfuge arrangement than a subcontractor that serves a single client." Id. Nevertheless, the Second Circuit has cautioned that "the absence of a broad client base," like "shared premises," is not "anything close to a perfect proxy for joint employment (because they are both perfectly consistent with a legitimate subcontracting relationship)...." Id.
It is undisputed that, during the period at issue in this case, Metro technicians performed work only for Time Warner. Hence the second factor might appear to weigh in favor of finding that Time Warner jointly employed Metro technicians.
However, the Second Circuit has described the second factor as "whether the Contractor Corporations had a business that could or did shift as a unit from one putative joint employer to another," Zheng I, 355 F.3d at 72 (emphasis added). And the undisputed evidence shows that, as Time Warner argues, "Metro has its own resources (a warehouse, tools, vehicles, and a cadre of employees) and can seek work from any other cable company at any time." (Defs.' Br. at 45.) Moreover, Metro in the past provided installation services for another cable company in New York, Cablevision, as well as Dish Network in Florida.
The Court is not persuaded that the Barfield court intended its statement that "Barfield herself was referred only to Bellevue and not to any other hospital" to mean that a putative defendant employer must show that the plaintiff actually shifted from one employer to another. It would not have made sense for the Second Circuit to interpret the second factor that way when the Zheng court had listed "whether plaintiffs worked exclusively or predominantly for [the putative joint employer]" as a separate factor. Zheng I, 355 F.3d at 72. Indeed, the Second Circuit's decision in Zheng I specifically noted that while the second factor "overlaps substantially" with the sixth factor, "[t]he factors are not identical ... and capture different aspects of a business relationship's `economic reality.'" Id. at 75 n. 12. In particular, the court noted that "factor (6), but not factor (2), would weigh in favor of joint employment if a subcontractor worked solely for a single client but had the ability to seek out other clients at any time." Id. (emphasis added). The parties agree that is the case here. Accordingly, the second Zheng factor does not weigh in favor of finding that Time Warner jointly employed Metro technicians.
The third Zheng factor is "the extent to which plaintiffs performed a discrete line-job that was integral to [the putative joint employer]'s process of production," Zheng I, 355 F.3d at 72. "Interpreted broadly, this factor could be said to be implicated in every subcontracting relationship, because all subcontractors perform a function that a general contractor
As these statements suggest, and as Plaintiffs concede (see Pl.'s Opp'n at 33), the third factor might apply with somewhat less vigor where, as here, the parties are engaged in providing a service rather than manufacturing a product. Nevertheless, there is little reason not to remain "mindful of the substantial and valuable place that outsourcing, along with the subcontracting relationships that come with outsourcing, have come to occupy in the American economy." Id. at 73. Nor does there appear any reason why, to the extent that the third Zheng factor does apply, "both industry custom and historical practice should be consulted" since "insofar as the practice of using subcontractors to complete a particular task is widespread, it is unlikely to be a mere subterfuge to avoid complying with labor laws." Id.
That is so here. Several reported cases cited by the parties demonstrate that numerous cable companies across the country contract with installation companies in much the same way that Time Warner contracts with Metro. See Keeton, 2011 WL 2618926; Lawrence, 2011 WL 666304; Jacobson, 740 F.Supp.2d 683; Smilie v. Comcast Corp., No. 07-CV-3231 (N.D.Ill.) (Slip Op., Feb. 25, 2009); Santelices v. Cable Wiring and South Fla. Cable Contractors, Inc., 147 F.Supp.2d 1313 (S.D.Fla.2001); Herman v. Mid-Atl. Installation Servs., Inc., 164 F.Supp.2d 667 (D.Md.2000).
Plaintiffs cite Zheng for the proposition that "the very prevalence of a custom may `be attributable to widespread evasion of labor laws.'" Zheng I, 355 F.3d at 73-74. True enough, but that possibility does not correspond with the reality that the mine run of other courts has not found that cable companies jointly employ installation technicians who work for contractors. That suggests that Time Warner's agreement with Metro "is unlikely to be a mere subterfuge to avoid complying with labor laws." Id. at 73. Thus the most Plaintiffs can say is that the third factor does not necessarily weigh against joint employment.
The fourth Zheng factor is "whether responsibility under the contracts could pass from one subcontractor to another without material changes," Zheng I, 355 F.3d at 72. "[T]his factor weighs in favor of a determination of joint employment when employees are tied to an entity ... rather than to an ostensible direct employer...." Id. Conversely, where "employees work for an entity (the purported joint employer) only to the extent that their direct employer is hired by that entity, this factor does not in any way support the determination that a joint employment relationship exists." Id.
There is no evidence that Metro technicians would continue installing Time Warner cable if Time Warner severed its relationship with Metro. Since the undisputed evidence shows that, rather than hiring technicians, Time Warner hires contractors who hire technicians, all the evidence suggests that "when an Installation Company dissolves, technicians wishing to continue working on behalf of [Time Warner] are required to apply and be hired for a position from another Installation Company." Jacobson, 740 F.Supp.2d at 693. Accordingly, the evidence suggests that Metro technicians work for Time Warner "only to the extent that their direct employer is hired by that entity," Zheng I, 355 F.3d at 72. The fourth Zheng factor therefore weighs against finding that Time Warner jointly employs Metro technicians.
The fifth Zheng factor is "the degree to which the [putative joint employer] or [its] agents supervised plaintiffs' work," Zheng I, 355 F.3d at 72. As set forth above with respect to the second Carter factor, to the extent that Time Warner supervised Metro technicians, it did so almost entirely "with respect to contractual warranties of quality and time of delivery" that have "no bearing on the joint employment inquiry." Zheng I, 355 F.3d at 75. True, there is evidence that Time Warner supervised Metro technicians in some minimal capacity. But on balance, even considering all of the evidence in the light most favorable to Plaintiffs, the fifth Zheng factor weighs almost entirely against finding that Time Warner jointly employed Metro technicians.
The sixth Zheng factor is "whether plaintiffs worked exclusively or predominantly for [the putative joint employer]." Zheng I, 355 F.3d at 72. The parties do not dispute that, during the time period at issue in this case, Metro technicians performed installations only for Time Warner. Accordingly, this factor weighs in favor of finding that Time Warner jointly employed Metro technicians.
A district "court is also free to consider any other factors it deems relevant to its assessment of the economic realities." Zheng I, 355 F.3d at 72. The parties argue that several other factors are relevant.
First, Plaintiffs point to the fact that Time Warner and Metro have the same counsel in this action. They contend that this "raises issues as to what extent Metro is [a] viable, autonomous entity with meaningful independence from its co-defendant." (Pl.'s Opp'n at 40.) Hardly.
Second, both parties make arguments regarding how Metro technicians present themselves to third parties. Plaintiffs point to evidence that the technicians' identification cards name Time Warner as well as Metro and that the technicians refer to Time Warner in introducing themselves. (Pl.'s Opp'n at 41.) For its part, Time Warner points to evidence that several of the Plaintiffs have represented to various legal authorities that Metro is their employer. (Def.'s Br. at 25.)
The Court doubts that evidence of whether a third party has reason to believe that Time Warner jointly employs Metro technicians is relevant to determining whether that is true as a matter of economic reality. The economic reality test reflects an "overarching concern" for "whether the alleged employer possessed the power to control the workers in question." Herman, 172 F.3d at 139. What a third party has seen or been told has almost nothing to do with whether Time Warner in fact had such a power. In any event, even if this factor were relevant, none of the evidence that the parties have advanced with respect to it changes the balance that weights overwhelmingly against finding that Time Warner jointly employed Metro technicians.
It is true that joint employment is a mixed question of law and fact and that "[m]ixed questions of law and fact are `especially well-suited for jury determination....'" Zheng v. Liberty Apparel Co., Inc., 617 F.3d 182, 185 (2d Cir.2010) ("Zheng II") (quoting Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir.1999)). However, this is one case where the Court can "conclude that, even where both the historical facts and the relevant factors are interpreted in the light most favorable to plaintiffs, defendants are still entitled to judgment as a matter of law." Zheng I, 355 F.3d at 76.
"To reach that conclusion, the Court need not decide that every factor weighs against joint employment." Id. at 76-77 (emphasis in original). Nevertheless, the undisputed facts show that almost every factor weighs against finding that Time Warner jointly employed Metro technicians. The only factor weighing in favor of that finding is that Metro technicians only install cable for Time Warner. Hence the question is whether that fact alone can as a matter of law sustain the conclusion that Time Warner jointly employed Metro technicians. The Court finds three reasons why the answer to that question is "no."
First, the Second Circuit has rejected the proposition that "the absence of a broad client base is anything close to a perfect proxy for joint employment" because it is "perfectly consistent with a legitimate subcontracting relationship." Zheng I, 355 F.3d at 72. Rather, the Court have appeals has suggested merely that the fact that a contractor performs work for only one business can serve "as a starting point in uncovering the economic realities of a business relationship." Id.
Second, it seems strange to conclude that Time Warner controls Metro technicians because Metro contracts only with Time Warner where it is undisputed that Time Warner does not control whether Metro does so. If Time Warner prohibited Metro from contracting to provide installation services for any other cable provider, that fact along with some evidence that Time Warner supervised or otherwise controlled technicians' conditions of employment would suggest to a greater degree that Metro was separate in name
Third, consistent with this reasoning, several courts have concluded that cable companies do not jointly employ contract technicians where the only factor weighing in favor of a contrary result was the fact that the technicians install cable for only one service provider. See Adderley, 2011 WL 666304 at *10 (granting summary judgment where "[t]he only relevant factor weighing in favor of a joint employment relationship is the fact that Adderley ... works exclusively for Cablevision, albeit by its own choice"); Jacobson, 740 F.Supp.2d at 693 (citing Zheng I and holding that, "by itself, the absence of a single client base is not a proxy for joint employment").
In post-briefing letters, Plaintiffs point to Keeton v. Time Warner Cable, Inc., No. 2:09-CV-1085, 2011 WL 2618926 (S.D.Ohio, July 1, 2011), in which the court denied Time Warner summary judgment on the issue of whether it jointly employed cable technicians employed by contractors. Keeton, however, is readily distinguishable from this case.
Noting that "Time Warner does not directly address the factors laid out in International Longshoremen['s Association, AFL-CIO, Local Union No. 1937 v. Norfolk Southern Co., 927 F.2d 900 (6th Cir. 1991)]," the Keeton court held that Time Warner "had not met [its] burden of establishing that no genuine issue of material fact[] exists as to whether [it] jointly employed the Plaintiffs with [their contractor], Reno Services." 2011 WL 2618926, at *7. The International Longshoremen factors include "(1) the interrelation of operations between the companies; (2) common management; and (3) centralized control of labor relations, and common ownership," 927 F.2d at 902 — factors not identified by the Second Circuit in Zheng. Compare Zheng I, 355 F.3d at 72 (not listing such factors). Applying these factors, the Keeton court concluded that "[a] reasonable fact-finder could take the Plaintiffs' claims as true regarding Time Warner's management of Plaintiffs' daily routes to indicate that the Plaintiffs were both working under a centralized control of labor relations and [that] Reno Services and Time Warner had interrelated operations, fulfilling two of the three Int'l Longshoremen factors." Id. at *7. Indeed, the Plaintiffs alleged that they "beg[an] their days by reporting to a Time Warner facility to receive their work orders"; "that once they reported to a Time Warner facility at the beginning of the day, a Time Warner technician would print, organize, and distribute the work orders among the various installers"; "that they then filled out route sheets to give to a Time Warner dispatcher before departing to start their routes"; that they "had to receive permission from the Time Warner dispatcher before they could change the order in which they filled the work orders assigned to them on a particular day"; and "that if they had doctor's appointments, they would inform Time Warner so that the dispatcher could schedule their route around the appointment." Id. at *6.
As set forth above, the undisputed evidence here shows just the opposite: Metro technicians report to work at Metro's facility, receive work orders organized by Metro, and report their absences or late arrivals to Metro. No reasonable fact-finder could infer "interrelation of operations" between Metro and Time Warner or "centralized control of labor relations" from that evidence. Id. at *7. Hence even taking
For the foregoing reasons, Time Warner's motion
SO ORDERED.
