Opinion
No. 13-16364
02-05-2016
JUAN PABLO ORQUIZA; MAXIMINO BUENAVENTURA, individually and on behalf of other persons similarly situated, Plaintiffs - Appellants, v. MICHAEL BELLO, Defendant - Appellee.
NOT FOR PUBLICATION
D.C. No. 2:11-cv-01374-JCM-CWH MEMORANDUM Appeal from the United States District Court for the District of Nevada
James C. Mahan, District Judge, Presiding Argued and Submitted January 5, 2016 San Francisco, California Before: WALLACE, KOZINSKI and O'SCANNLAIN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. --------
Plaintiffs suggest that Bello was their "employer" for the purposes of the Fair Labor Standards Act (FLSA) because he determined their method of payment and had the power to hire and fire employees. We question whether Bello had the power to hire and fire. The district court's analysis of this question, which focused on whether Bello actually hired or fired, is inapt. But, even if Bello did have this power, our review of "the total employment situation and the economic realities of the work relationship" compels the conclusion that Bello was not the plaintiffs' employer. Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983); see 29 U.S.C. § 203; Lambert v. Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999) (en banc). Bello's connection to the plaintiffs was too attenuated to establish an employer/employee relationship.
The motion of the Southern Nevada Labor Management Cooperation Committee et alius to become amici is GRANTED. The Clerk will file the brief.
AFFIRMED.