United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. DISTRICT COURT JUDGE
Marcelino Herrera and Marvel Quinones worked on carpet
installation projects that Defendant South Valley Floors,
Inc. arranged for its customers. Defendants Ryan Maxwell and
Shannon Maxwell are the principals of South Valley Floors.
dispute arose about pay, Mr. Herrera and Mr. Quinones filed
this suit for unpaid overtime, unpaid minimum wages, and
retaliation in violation of the Fair Labor Standards Act
(FLSA), 29 U.S.C. §§ 207 and 216. They also filed
supplemental state law claims of unjust enrichment and
intentional infliction of emotional distress.
parties filed cross-motions for summary judgment focusing
primarily on the issue of whether the Plaintiffs were
“employees” under FLSA (a threshold requirement
for FLSA protection). For the reasons set forth below, the
court finds that neither Mr. Herrera nor Mr. Quinones has met
his burden to establish that he was an employee of the
Defendants. Accordingly, the Defendants' request for
judgment on the Plaintiffs' FLSA and related state law
claims is GRANTED.
Defendants filed a motion for summary judgment in which they
asserted, among other things, that the FLSA claims must be
dismissed because the Plaintiffs were not
“employees” under the FLSA and so the statute
does not apply. Plaintiffs filed a cross-motion for summary
judgment and an opposition brief, in which they presented
evidence that they were indeed employees as defined by FLSA.
court heard oral argument on the motions. The court initially
determined that genuine disputes of material fact existed on
the question of whether each of the Plaintiffs was an
employee under FLSA. Because the issue is a question of law
for the court, Dole v. Snell, 875 F.2d 802, 805
(10th Cir. 1989), the court could not let the Plaintiffs'
FLSA claims proceed to a jury. Rather, the court had to
resolve those factual disputes.
In deciding whether an individual is an employee or an
independent contractor under the FLSA, a district court
acting as a trier of fact must first make findings of
historical facts surrounding the individual's work.
Second, drawing inferences from the findings of historical
facts, the court must make factual findings with respect to
the [factors courts typically analyze when making a decision
on this threshold issue.] Finally, employing the findings
with respect to [those] factors, the court must decide, as a
matter of law, whether the individual is an
“employee” under the FLSA.
Baker v. Flint Eng'g & Constr. Co., 137 F.3d
1436, 1440 (10th Cir. 1998) (emphasis added).
of those factual disputes could not be accomplished without
live testimony to clarify the facts and assess witness
credibility. To that end, the court held an evidentiary
hearing limited to the issue of whether Mr. Herrera and Mr.
Quinones were employees of South Valley Floors.
having reviewed the record created at the evidentiary
hearing, case law, and the parties' motions, the court
finds that neither Mr. Herrera nor Mr. Quinones has satisfied
his burden to show that he was an employee of South Valley
Valley Floors (SVF) sells flooring materials such as carpet
and tile. SVF gets multiple orders each week in which the
customer does not request installation. But at the
customer's request, SVF installs the flooring materials.
For those customers, SVF schedules the installation job with
the customer and then schedules the job with an installer
such as Mr. Herrera.
Maxwell is the President of SVF and manages the
business's affairs. She does not go to the installation
job sites. Ryan Maxwell, Ms. Maxwell's husband, goes to
the installation sites to measure the amount of flooring
needed for the job. Occasionally he travels to sites when a
customer calls or raises an issue or concern. He does not
tell the installers how to install the flooring.
Herrera's Tenure at SVF and Other Flooring Companies
not train Mr. Herrera how to install carpet or any other
flooring materials. Mr. Herrera learned how to install carpet
when he was in California from 1998 to 2000.
in December 2010, Mr. Herrera began doing installation
projects for SVF. Mr. Herrera said “I used to work for
Blyle [sic] but [Ryan Maxwell] told me he was going to give
me more work so I started working for him.” (Tr. of
Aug. 30, 2018 Evid. Hr'g at 86 (“Tr.”), ECF
average, Mr. Herrera performed between three to five
installation jobs per week for SVF during the time he worked
exclusively for SVF. But he did not start out working that
often for SVF. Beginning in 2011, his work with SVF was slow.
But as 2013 neared, the amount of work he did for SVF
gradually increased, and, beginning in 2014, he spent
essentially all of his time installing flooring for SVF
on a review of the SVF's check ledger (Ex. A), it appears
that when he began at SVF, he was paid sporadically during
2011 and 2012. Typically, SVF issued checks of varying
amounts approximately two to three times a month during 2011.
2012, he worked three jobs for SVF totaling $968. In 2013,
the amount of work increased, although checks were issued on
an inconsistent basis, and the amounts varied. But in 2014,
2015, and 2016, the number, dates, and check amounts
increased to a point that it appears he was working almost
exclusively for SVF. In all, SVF paid Mr. Herrera approximately
$320, 000 before he quit in June 2016.
the years he worked for SVF, he did work for other flooring
companies. In 2012 and 2013, Mr. Herrera worked for Bleyl and
Sons, which, apart from SVF, formed a significant portion of
his income during that time. In 2013, he had constant work,
splitting his time between SVF and Bleyl. But in 2014, as his
worked increased up at SVF, his work at Bleyl slowed and
eventually he focused on SVF. He did one small job for Bleyl
in 2015. After he left SVF in June 2016, his work became more
regular at Bleyl. (Ex. C.)
from Bleyl and SVF, Mr. Herrera worked periodically for other
flooring companies. In 2016, he did some small jobs for
Garden Gate Wholesale Flooring, Inc. (Ex. D.) In the summer
of 2016, he completed three jobs for Western Wholesale
Flooring, Inc., earning $5, 200. (Ex. E.) He worked on a few
jobs for Po Boyz Karpet, Inc. in 2013, 2016, and 2017. (Ex.
F.) And in July 2016, he did two installation jobs for Pro
Floors of Utah. (Ex. G.) But otherwise, SVF was the main
source of income for Mr. Herrera.
Quinones, who is Mr. Herrera's neighbor, never contacted
SVF to ask if it had any work available and never submitted
an application for employment to SVF. SVF did not offer
employment to Mr. Quinones and nobody from SVF told Mr.
Quinones he was “hired.”
Mr. Herrera recruited Mr. Quinones to work with him at SVF
job sites because he needed Mr. Quinones' help and Mr.
Quinones needed work. He did not obtain permission from the
Maxwells to bring Mr. Quinones to SVF job sites. Mr. Herrera
briefly introduced Mr. Quinones to Mr. Maxwell and told him
that Mr. Quinones would be working alongside him. Mr. Maxwell
did not object. SVF never prohibited Mr. Herrera from
bringing other installers with him to job sites.
Quinones performed work at SVF job sites with Mr. Herrera
from March 2016 to June 4, 2016. Mr. Herrera taught Mr.
Quinones how to install carpet. He traveled to the SVF job
sites with Mr. Herrera, and he never performed flooring
installation work without Mr. Herrera. According to Mr.
Quinones, “I was just there to do the jobs that-to help
[Mr. Herrera] with the jobs they gave to him.” (Tr. at
Herrera considered Mr. Quinones to be his employee. At the
completion of each installation project, Mr. Herrera paid Mr.
Quinones $100 in cash per day of work.
the time Mr. Herrera installed flooring for SVF, SVF relied
on approximately twenty-five to thirty flooring installers,
of which ten to fifteen were carpet installers. SVF never
told Mr. Herrera or other installers that they were
prohibited from working elsewhere.
paid its installers a varying piece rate on a per-project
basis. This is an industry standard. During its busy season,
SVF had five to six carpet installers out on installation
jobs on a daily basis.
an SVF customer purchased flooring and asked that it be
installed, Ms. Maxwell would begin texting or calling her
list of carpet installers at three o'clock in the
afternoon to see who was available to do the job. “I
would schedule it with the customer and then I would schedule
it with the installer the night before.” (Tr. at 131.)
If an installer said no, she would drop down the list.
“We would be calling … whoever to fill that
job.” (Id. at 138.) “[T]hat's why
you have 25 installers.” (Id.)
on customers' installation completion deadlines, Ms.
Maxwell tried to meet those deadlines based on her knowledge
of how much each installer could handle on any given day.
Occasionally, SVF installers needed an additional day.
flooring industry standard is to treat carpet installers as
independent contractors. According to Ms. Maxwell,
“installers will come in and ask do you have any work?
And because we have to play that game of the night before, I
will take installers, you know, whatever I can get.”
(Id. at 143.) When asked whether it would have been
“a bit easier if you had your own captive crew, ”
she responded, “Yes, but installers don't want
that. They want to be able to float and make their own hours
….” (Id. at 143-44.)
Herrera was on that list of installers. Although SVF added
him to that list in 2010, he left and came back “quite
a few times over the years.” (Id. at 158.) He
floated between flooring companies. But, as described above,
beginning in 2014, he spent the vast majority of his time
with SVF. According to Mr. Herrera, he ...