Cable Installation Technicians Deemed not to be Employees of Comcast Under FLSA
(October 2010) By Eric M. Leppo, Associate
For more information, contact Paul Farquharson.
Scott Jacobson, et al. v. Comcast Corporation, et al.,
Case No.: 1:09-cv-562 (U.S. District Court for the District of Maryland, September 28, 2010) |
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In this recent Memorandum Opinion, Judge J. Frederick Motz
granted Comcast's Motion for Summary Judgment in an action seeking overtime wage
payments under the Fair Labor Standard Act ("FLSA"), 29 U.S.C. § 201,
et seq.
The Court held that the Plaintiffs, a collection of individual cable
installation technicians, were not employees of Comcast as defined by the
statute, and therefore could not proceed against Comcast for these wages under
the law.
There is no question that the individual Plaintiffs in this
action worked directly for cable installation companies including Futuretek,
Procom, and Conn-X. However, the Plaintiffs contend that Comcast is also liable
to them for wages under the act, as a joint employer within the meaning of FLSA.
The installation companies each have contracts with Comcast to provide cable
installation services in the homes of Comcast customers. The installation
companies are defined as independent contractors in those contracts; however,
the installation companies have a close business relationship with Comcast, and
a great deal of oversight regarding the technicians.
Under the FLSA, the terms employer, employee, and
employ are to be given broad interpretations. The term "Employer" includes
any person acting directly or indirectly in the interest of an employer in
relation to an employee. 29 U.S.C. § 203(d). There is no question that a
person can be an employee for more than one employer.
To determine whether an entity is a joint employer, a
court must take into account the "real economic relationship" between the
parties. In assessing this relationship courts have applied four (4)
particular factors:
- Authority to hire and fire employees;
- Authority to supervise and control work schedules or employment conditions;
- Authority to determine the rate and method of payment; and
- Maintenance of employment records.
Bonnette v. Cal. Health and Welfare Agency, 704 F.2d
1465, 1470 (9th Cir. 1983). The Court applied the facts of the relationship
between Comcast, the installation companies, and technician Plaintiffs to
these four (4) factors.
First, the Plaintiffs argue that Comcast did control
hiring and firing of the technicians. Comcast required a criminal background
check, and drug testing for all new employees of the installation companies,
and gave input regarding all new applicants to those companies. Comcast also
retained the authority to remove an individual technician's status as a
Comcast installer. While losing that status did not require termination from
the installation company per se, the technicians argued that it amounted to
an effective firing since the installation companies only performed work for
Comcast.
In addition, Comcast had much additional involvement
with the installation companies and their employees. While the employees
carried their own tools, they installed equipment owned by Comcast, and
Comcast directed them to customer homes that needed installation.
Additionally, Comcast tracked the installation technicians to the point
where they could see their location at any given time, and know how long
they were spending with each customer.
However, the Court noted that Comcast was not
responsible for day-to-day employee management of the technicians, and did
not have a role setting the human resource policies or dictate the
technicians' working conditions. Those decisions were left to the
installation companies. The Court recognized that detailed instructions and
close monitoring are key components in many independent contractor and
franchise relationships, and do not mean that an independent contractor
relationship no longer exists.
Therefore the Court determined that under the
undisputed facts, or the facts in the light most favorable to the
technicians, Comcast is not a joint employer. Therefore, no claim under FLSA
could proceed against Comcast.
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