Summary
denying conditional class certification
Summary of this case from Carter v. Indianapolis Power Light CompanyOpinion
No. 99 C 6700
February 8, 2000
MEMORANDUM OPINION AND ORDER
Evan Pfahler ("Pfahler") sues Consulting for Architects, Inc. ("CFA") under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq ("FLSA"). Pfahler claims CFA failed to pay him $191.28 in overtime wages. Pfahler moves for conditional certification of a collective action pursuant to § 216(b) of the FLSA.
BACKGROUND
CFA is a referral company that places architects and design professionals with corporate clients on a contractual, job-to-job basis. According to Pfahler, designers seeking work register with CFA, and CFA then finds them jobs in Chicago-area businesses. Pfahler is a designer who sought placement through CFA. In January 1999, CFA found a job for Pfahler at Ricondo Associates ("Ricondo")
Pfahler contends that even though he was working at Ricondo, he was an "employee" of CFA within the meaning of the FLSA. Pfahler claims he was paid on an hourly basis by CFA and was entitled to overtime pay for working in excess of 40 hours per week, but that he did not receive overtime pay from CFA. According to Pfahler, CFA improperly classifies its registrants as "independent contractors" in order to avoid paying overtime wages. Pfahler contends that while working at Ricondo, he was required to work a regular shift at Ricondo and could not seek work elsewhere. Moreover, he asserts his agreement with CFA prevented him from employment by Ricondo during the term of his placement there.
Pfahler seeks certification of a collective action under the FLSA so that he may represent other workers he believes were improperly denied overtime wages by CFA. According to Pfahler, CFA has failed to pay overtime wages to at least 140 workers since October 1996. CFA responds that the workers are independent contractors who decide when, where, and for whom they wish to work. CFA contends it provides its referral services to people with various levels of experience and skill, and that it places these people in various positions. Some of these positions (such as project managers) require independent thought, while others do not require much skill or experience. CFA compensates workers by billing the client with whom the worker is placed for the worker's services, deducting a commission for placement, and issuing a check to the worker.
DISCUSSION
Section 216(b) of the FLSA permits a plaintiff to bring a collective action on behalf of other potential claimants. A collective action under § 216(b) differs from a class action under Fed.R.Civ.P. 23. See Woods v. New York Life Ins. Co., 686 F.2d 578 (7th Cir. 1982). A collective action can be brought under § 216(b) as long as the plaintiff is "similarly situated" with those potential claimants he wishes to represent. 29 U.S.C. § 216 (b). In a collective action, no claimant shall be a member of or bound by the action unless he or she "opts in" to the action. Id. For this reason, notice is sent to potential claimants once a collective action is authorized.Woods, 686 F.2d at 580 (7th Cir. 1982).
Pfahler contends he is similarly situated with other potential class members because he was improperly classified as an independent contractor and denied overtime wages. However, Pfahler has failed to demonstrate any basis for a finding that he is similarly situated with other potential claimants. Liability in Pfahler's case will turn on whether Pfahler is an "independent contractor" or an "employee" within the meaning of the FLSA. The same is true for every potential claimant included in the collective action. Those who are "independent contractors" would not be similarly situated with Pfahler, who claims he is an "employee."
In order to determine who is an independent contractor and who is an employee, the court would be required to make a fact-intensive, individual determination as to the nature of each potential claimant's employment relationship with CFA; this inquiry could also entail examining each claimant's relationship with the various corporate clients with whom they were placed by CFA. Where this is the case, certification of a collective action under the FLSA is inappropriate. Donihoo v. Dallas Airmotive, Inc., 1998 WL 91256, at *1 (N.D. Tex. Feb. 23, 1998) ("an inquiry into the employee's specific job duties . . . is not appropriate in a class lawsuit under Section 216(b)").Tumminello v. United States, 14 Cl. Ct. 693, 697 (1988). A collective action under the FLSA is only appropriate where those in the pool of potential claimants perform the same duties as the plaintiff. See Donihoo, 1998 WL 91256, at *2.
In making this determination, the court must evaluate the employment status of each claimant in light of the following factors:
1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed;
2) the alleged employee's opportunity for profit or loss depending upon his managerial skill;
3) the alleged employee's investment in equipment or materials required for his task, or his employment of workers;
4) whether the service rendered requires a special skill;
5) the degree of permanency and duration of the working relationship;
6) the extent to which the service rendered is an integral part of the alleged employer's business.Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir. 1987).
Pfahler makes no showing that other potential claimants performed the same type of duties as himself, or that they could be classified as "independent contractors." Pfahler provides no grounds indicating his knowledge of the work other workers performed, the circumstances under which work was performed, or the circumstances of potential claimants affecting their desire to work as independent contractors or employees. Moreover, Pfahler testified that aside from Ricondo, "I don't know anything about (CFA's] relationships with any other companies." Pfahler Dep. p. 108. Pfahler attests that most, if not all, of those others with whom he worked while at CFA held ministerial, nonsupervisory positions, with little or no exercise of discretion or judgment. Pfahler Decl. ¶ 20. However, Pfahler's belief as to the nature of the employment relationship between other workers and CFA is insufficient to meet the similarly situated requirement. Pfahler must point to something concrete aside from his belief.
Moreover, Pfahler is able to identify only three other people placed by CFA that he purportedly met while working at Ricondo. As to the rest of the potential claimants, Pfahler merely attaches a list of all persons referred by CFA who worked over 40 hours per week. He provides no basis for concluding these workers were "employees" and not "independent contractors." Simply identifying a group who worked overtime does nothing to establish a situation similar to Pfahler's. Rather, he must make some showing that the nature of the employment relationship between these workers and CFA renders them "employees" under the FLSA.See Klegerman v. F.G. Apparel, Inc., 1986 WL 2531, at *6 (N.D. Ill. Feb. 11, 1986) (Nordberg, J.) (denying collective action where plaintiff failed to identify any other individuals alleged to be similarly situated and merely alleged defendant discriminated against other employees); D'Anna v. M/A-Com, Inc., 903 F. Supp. 889, 893-94 (ID. Md. 1995) (requiring plaintiff to make a modest preliminary showing that a similarly situated group of potential claimants exists and concluding that broad allegations of class-wide discrimination along with a mere list of names, without more, is insufficient to show plaintiff is similarly situated)
Pfahler argues he is similarly situated because he and other potential claimants were all subjected to the same CFA interviewing, testing, screening, and placement procedures, and that they all submitted CFA time sheets, were paid by computer generated checks, and were all placed in jobs in the Chicago area. But the similarity of the procedures through which workers registered and were paid is not probative of the nature of their employment status with each of the various corporate clients with whom they were placed. Pfahler devotes significant time to discussing the background and facts he believes establish his status as an employee and his entitlement to overtime pay. However, the facts that may establish Pfahler's status as an employee have no bearing on whether other potential claimants experienced similar relationships with CFA.
Finally, Pfahler relies on Behr v. Drake Hotel, 536 F. Supp. 427 (N.D. Ill. 1984) and Allen v. Marshall Field Co., 93 F.R.D. 438 (N.D. Ill. 1932) in support of his argument that he makes the minimal showing necessary to establish he is similarly situated with other potential claimants. Those cases involved claims of discrimination under the Age Discrimination in Employment Act, which incorporates the collective action provision of the FLSA. In a discrimination case, it is relatively easy to satisfy the similarly situated standard. As noted in Allen and Behr, a discrimination case focuses on whether the defendant had a policy of discriminating against its employees. The primary showing of discrimination is common to all potential claimants. However, the focus of a collective action in this case would be the distinction between an employee and an independent contractor. The focus would not be CFA's actions, but rather the nature of the claimants' employment relationship with CFA. A collective action in this situation is only appropriate where the plaintiff makes some showing that the nature of the work performed by other claimants is at least similar to his own. See Donihoo, 1993 WL 91256, at *2. Pfahler fails to do so.
CONCLUSION
Pfahler's motion for conditional certification of collective action and to send notice of collective action is denied.