South Florida Personal Injury Blog

Recently, in April of 2010, the United States District Court for the Southern District of Florida decided a case that dealt with the Fair Labor Standards Act (FLSA) for unpaid overtime wages and the issue of independent contractor versus employee. (See Olson v. Star Lift Inc., 2010 WL 17490694 (S.D.Fla.).

Florida overtime attorneys Alitowski & Moore provide updates to Florida employment law on a weekly basis. In Olson, the trial that was held was a bench trial. Id. The Court found for the Defendant and the reasoning is as follows.
Defendant is a forklift repair company. It’s sales were at least $500,000 for the relevant period of time. Id. One of Defendant’s clients is Caterpillar which ships products worldwide. Caterpillar had about 70-80 forklift which it used to load and unload the products it ships. The forklifts themselves were not moved in commerce. Plaintiff did not use the forklift to load or unload products, he just repaired and maintained the forklifts. Id. Further, Defendants did not produce or manufacture any goods. Id. None of the forklifts fixed by Plaintiff were ever shipped out of Florida and no evidence that Defendants bought or used parts purchased outside of Florida. Id. The Defendant provided all its workers, even clerical workers, with 1099 independent contractor tax returns rather than W-2’s. Id.
Defendants told Plaintiff where to work, when to work, and how to do the job. Id. The type of work Plaintiff did required skill but could be learned in 2 ½ months of on the job training. Id. No evidence that Plaintiff was involved in profit and loss and Plaintiff could not employee his own workers. Id. Defendant purchased the tools for the Plaintiff but Plaintiff would have to pay them back. Id. Also, Plaintiff had to wear a Defendant uniform. Id.
In the FLSA overtime case at hand, the time records were not correct. Plaintiff would put down times that were inaccurate because he was told to do so based on the job he was doing. Id. But, the Court surmised that this did not matter in that the evidence showed that Plaintiff never did work more than 40 hours per week. Id.
“The FLSA applies to any employees who is “engaged in commerce or in the production of goods for commerce,” regardless of whether the enterprise that employs him is engaged in commerce under the statute.” (cites omitted). Id. (known as individual coverage). “The FLSA applies to any employer engaged in “enterprise engaged in commerce or in the production of goods for commerce” (cites omitted). Id. (known as enterprise coverage). “For an employee to be ‘engaged in commerce’ under the FLSA, he must be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.” (cites omitted). Id.
“Where employees’ activities are related to interstate instrumentalities or facilities, such as bridges, canals and roads, courts have used a practical test to determine whether they are ‘engaged in commerce.’ The test is ‘whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity.’” (cites omitted). Id.
This Florida jurisdiction “has consistently held that the work of maintenance employees in the office buildings occupied by tenants a substantial number of whom are there engaged wholly or in part in interstate commerce, but who do not there produce goods for interstate commerce, is too remote from the ‘in commerce’ activities of such tenants as to cause such employees to be covered by the Act.” (cites omitted). Id. Thus, in that Plaintiff never operated the forklifts to load or unload; in that Plaintiff’s work was just to repair forklifts that did not move in interstate commerce themselves, it appears that Plaintiff’s repair and maintenance work represented an “isolated local activity” which indirectly affects commerce and does not entitle him to individual coverage.” (cites omitted). Id.
“For the purpose of enterprise coverage, the FLSA defines an “enterprise engaged in commerce or in the production of goods for commerce” as an entries that “has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and that “is an enterprise whose annual gross volume of sales made or business done is not less than $500,000.”” (cites omitted). Id.
Further, the FLSA overtime provisions only apply to employees and not to independent contractors. Id. The Courts use a 6 part test to determine if the person should be considered an employee instead of an independent contractor. The factors include: “1) the nature and degree of the alleged employees’ 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, and 6) the extent to which the service rendered is an integral part of the alleged employer’s business.” (cites omitted). Id.
In this Florida overtime case, numerous factors weighed in Plaintiff’s favor that he was an employee. Id. Defendants controlled the time he went to work and how long when worked. The Defendants made him wear Defendants’ uniform and provided him with a van and gas. Also, Plaintiff was unable to hire workers to help him and the skills involved were simple enough to be learned on the job; with these services being an integral part of Defendant’s business. After weighing the factors, the Court held that Plaintiff was in fact an employee. Id.
But, the Court held noted that it was Plaintiff’s burden in this Florida overtime FLSA case to prove that he performed work for which he was improperly compensated. And, the Court noted, that Plaintiff did not meet his burden, thus Court found for the Defendants and dismissed the case.
If you have been involved in a Florida FLSA overtime unpaid wages case that you would like to find out the answers to, please call and speak to Florida FLSA overtime unpaid wages lawyers Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
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