The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STACEY BADON, ET AL. CIVIL ACTION
VERSUS NO. 19-12317 c/w 20-
584 and 21-596
BERRY’S RELIABLE RESOURCES, LLC, SECTION D (3)
ET AL.
THIS ORDER RELATES TO ALL CASES
ORDER AND REASONS
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment.1 The
Motion is opposed,2 and Plaintiffs have filed a Reply.3 After careful review of the
Motion, the parties’ briefs, the record, and the applicable law, the Court GRANTS
Plaintiffs’ Motion for Partial Summary Judgment.
I. FACTUAL BACKGROUND
This case involves a wage dispute. On August 27, 2019, Plaintiff Stacy Badon
filed a Complaint alleging she had been underpaid under the Fair Labor Standard
Act (“FLSA”).4 According to the Complaint, Badon began working for Defendant
Berry’s Reliable Resources, a home health caregiver, in 2016.5 Plaintiff alleges she
was paid an hourly wage of $8.00.6 Plaintiff further alleges that she worked fifty-six
hours per week performing services for Defendants’ clients but was never paid
1 R. Doc. 203.
2 R. Doc. 210 (Defendants original opposition contained at R. Doc. 205 was marked deficient).
3 R. Doc. 212.
4 See generally id.
5 R. Doc. 1 at 7 ¶ 31.
6 Id. at 7 ¶ 33.
overtime for the hours she worked in excess of forty hours per week.7 Badon’s
Complaint alleges a collective action pursuant to 29 U.S.C. § 216(b) on behalf of all
persons since August 2016 who worked for Defendants and were not paid overtime.8
On February 18, 2020, Anthony Badon filed a similar Complaint,9 and his case was
consolidated with Stacey Badon’s.10 Both Plaintiffs also assert a claim under the
Louisiana Wage Payment Act (“LWPA”), in which Plaintiffs allege that Defendants
improperly deducted costs for workers compensation and failed to repay Plaintiffs
after their termination.11
On April 26, 2022, Plaintiffs filed a Motion for Partial Summary Judgment on
the issue of whether Plaintiffs are properly classified as “independent contractors” or
“employees.”12 In their motion, Plaintiffs argue that the Plaintiffs were employees of
the Defendants under both the FLSA and LWPA because Plaintiffs were not able to
independently contract with the state to provide services to consumers and because
of the level of control exerted by Defendants over them.13 Defendants oppose the
motion and contend that Plaintiffs have failed to present any new evidence and are
independent contractors as expressly indicated by the parties’ subcontract agreement
7 Id. at 7 ¶¶ 34-35.
8 Id. at 4-7 ¶¶ 22-30.
9 Docket No. 20-584, R. Doc. 1.
10 R. Doc. 47.
11 See R. Doc. 1 at 8-9; Docket No. 20-584, R. Doc. 5 at 6-7.
12 R. Doc. 203. The Court notes that it previously denied cross Motion for Summary Judgment and
allowed the parties further discovery. See R. Doc. 157. Subsequently, after allowing for additional
discovery and continuing the trial, the Court, finding good cause, amended its Scheduling Order and
permitted Plaintiffs to file a dispositive motion addressing whether the Plaintiffs in this case should
be classified as employees or independent contractors. See R. Doc. 202. R. Doc. 203 is the subject of
this Order and Reasons.
13 Id.
and by the Plaintiffs’ actions.14 Plaintiffs filed a reply arguing that they were
employees because the Defendants determined what work they did, supervised their
work, and had the ability to fire them.15
II. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is appropriate where there is no genuine disputed issue as
to any material fact, and the moving party is entitled to judgment as a matter of
law.16 When assessing whether a dispute regarding any material fact exists, the
Court considers “all of the evidence in the record but refrain[s] from making
credibility determinations or weighing the evidence.”17 While all reasonable
inferences must be drawn in favor of the nonmoving party, a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions or “only
a scintilla of evidence.”18 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party.19
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”20 The
14 R. Doc. 210.
15 R. Doc. 212.
16 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).
17 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)
(citations omitted).
18 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
19 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).
20 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
non-moving party can then defeat summary judgment by either submitting evidence
sufficient to demonstrate the existence of a genuine dispute of material fact, or by
“showing that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.”21 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim.22 The burden then shifts to the nonmoving party who must go beyond
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’”23
B. Employee Status Under the Fair Labor Standards Act.
The FLSA defines “employer” to include “any person acting directly or
indirectly in the interest of an employer in relation to an employee.”24 The FLSA
“defines the verb ‘employ’ expansively to mean ‘suffer or permit to work.’”25 An entity
“suffers or permits” an individual to work if, as a matter of “economic reality,” the
entity functions as the individual's employer.26 The factors considered under the
“economic reality” test include: (1) the degree of control exercised by the alleged
employer; (2) the extent of the relative investments of the worker and alleged
21 Id. at 1265.
22 See Celotex Corp., 477 U.S. 317, 322-23.
23 Celotex Corp., 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
24 29 U.S.C. § 203(d).
25 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, (quoting 29 U.S.C. § 203(g)).
26 See Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961).
employer; (3) the degree to which the worker’s opportunity for profit and loss is
determined by the alleged employer; (4) the skill and initiative required in performing
the job; and (5) the permanency of the relationship.27 This test has been described as
a “fact intensive inquiry.”28 The crux of the analysis is whether the worker is
“economically dependent on the business to which he renders service or is, as a matter
of economic [reality], in business for himself.”29 Importantly, the labels the parties
assign to the relationship is not dispositive of the inquiry.30 That said, explicit
contractual arrangements may be evidence of an employer-employee relationship or
lack thereof.31
C. Employee Status under the LWPA
The LWPA does not contain a definition of the term “employee.”32 As outlined
in its previous Order,33 in determining whether an employer/employee relationship
exists, the court considers the factors set forth in Hickman v. Southern Pacific
Transport Company.34 These factors are:
(1) whether there is a valid contract between the parties;
(2) whether the work being done is of an independent nature such that
the contractor may employ non-exclusive means in accomplishing it;
27 See Reich v. Circle C. Investments, Inc., 998 F.2d 324 (5th Cir. 1993); Usery v. Pilgrim Equip. Co.,
Inc., 527 F.2d 1308 (5th Cir. 1976), cert denied, 429 U.S. 826, 97.
28 Seong Song v. JFE Franchising, Inc., 394 F. Supp. 3d 748, 755 (S.D. Tex. 2019).
29 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992).
30 See Coronado v. D.N.W. Houston, Inc., No. 13-2179, 2014 WL 2779548, at *2 (S.D. Tex. June 19,
2014) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947)).
31 Imars v. Contractors v. Manufacturing Servs., Inc., 165 F.3d 27 (6th Cir. 1998) (citing Robicheaux v.
Radcliff Mat’l, 697 F.2d 662, 665 (5th Cir. 1983)).
32 Hulbert v. Democratic State Central Committee of Louisiana, 2010-1910 (La. App. 1 Cir. 6/10/11); 68
So. 3d 667, 670.
33 R. Doc. 157.
34 262 So.2d 385, 390-91 (1972); Hulbert, 68 So. 3d at 670; see also Gordon v. Hurlston, 03-0112 (La.
App. 3 Cir. 9.10.03); 854 So. 2d 469; Glover v. Diving Services Int’l, Inc., 577 So. 2d 1103 (La. App. 1
Cir. 1991).
(3) whether the contract calls for specific piecework as a unit to be done
according to the independent contractor's own methods, without
being subject to the control and direction of the principal, except as
to the result of the services to be rendered;
(4) whether there is a specific price for the overall undertaking agreed
upon; and
(5) whether the duration of the work is for a specific time and not subject
to termination or discontinuance at the will of either side without a
corresponding liability for its breach.35
The appearance of control is the principal factor to determining whether an
employee/employer relationship exists.36 It is not whether the defendant actually
controlled the plaintiff’s performance, but whether the defendant had the right to do
so that is key.37
III. FACTUAL BACKGROUND
A. Employee Status under the FLSA
As an initial matter, the Court notes that it has previously determined that
the FLSA applies should the Court determine that Plaintiffs are employees of
Defendants.38 The Fifth Circuit has held that “the ultimate conclusion that an
individual is an ‘employee’ within the meaning of the [Fair Labor Standards Act] is a
legal determination rather than a factual one.”39 Applying the economic realities test
35 Hickman v. Southern Pacific Transport Company, 262 So.2d 385 (La. 1972).
36 Hulbert, 68 So. 3d at 670.
37 Id.
38 R. Doc. 157. Specifically, after an analysis of the evidence supporting enterprise coverage, this Court
stated: “[t]he Court finds that Plaintiffs and Opt-Ins are subject to enterprise coverage, and thus,
should they be determined to be employees, they fall within the scope of the FLSA.” Accordingly,
Defendants’ argument in its Opposition (R. Doc. 205) that the FLSA does not apply to the present case
because the Plaintiffs were not sufficiently engaged in interstate commerce is rejected.
39 See Lindsley v. BellSouth Telecomms. Inc., 401 Fed.Appx. 944, 945 (5th Cir. 2010) (citing Brock v.
Mr. W Fireworks, Inc., 814 F.2d 1042, 1045 (5th Cir. 1987)).
enunciated above by the Fifth Circuit, the Court now determines whether Plaintiffs
qualify as employees under the FLSA.
Applying the first factor of the economic realities test, the Court evaluates the
employer’s right to control the work completed by Plaintiffs.40 Plaintiffs argue that
Defendants controlled every aspect of their employment and had supervisory control
over them.41 In response, Defendants contend that the work conducted by Plaintiffs
was dictated by the State of Louisiana’s Plan of Care for each consumer, not by the
Defendants.42 Defendants further argue that they did not supervise Plaintiffs while
at work.43
In support of the first factor, Plaintiffs have provided the testimony of Terry
Cooper, the representative of the Louisiana Department of Health. Ms. Cooper
testified that it was the Defendant’s “responsibility to assure that their employee or
contract staff is adhering to what their assignment is and that they are adequately
trained to perform the duties that they are assigned.”44 Ms. Cooper further testified
that a direct service worker, such as Plaintiffs, cannot receive payment through these
state programs directly.45 Ms. Cooper stated that the Plaintiffs were not on the
payroll of the state, the state did not dictate their rate of pay, and the state did not
directly involve themselves with the hiring and firing of these direct service
40 Reich, 998 F.2d 324.
41 R. Doc. 203.
42 R. Doc. 210.
43 Id.
44 R. Doc. 203-4.
45 Id.
workers.46 Accordingly, Plaintiffs contracted with Defendants and were dependent
upon their relationship with Defendants to receive consumers and work.47
In addition, Defendants have admitted to exercising supervisory control over
Plaintiffs.48 Specifically, Defendants hired employees called Service Coordinators
whose job was to “supervise [DSWs] in consumer’s homes.”49 Service Coordinators
checked Plaintiffs’ work with consumers, provided general oversight, and responded
to any complaints.50 In her deposition, Rhonda Williams explained that her job for
the Defendants was “to oversee to make sure that the DSW is doing the allotted hours
that the state has given.”51 Further, the contracts signed by Plaintiffs prohibited
them from “alter[ing] in type, scope or duration” the services they provided from the
plan provided to them by Defendants.52 Accordingly, this factor weighs in favor of
determining that Plaintiffs were employees under the FLSA.
Turning to the second factor, the Court evaluates the Plaintiffs’ investment in
equipment and materials.53 Plaintiffs argue that Defendants or the consumers
provided the Plaintiffs with the materials needed to perform their jobs.54 Plaintiffs
assert that they did not provide their own materials but rather used those supplied
by Defendants or the consumers.55 In support, Plaintiffs point to the deposition
46 Id.
47 R. Doc. 203-3; R. Doc. 203-7.
48 R. Doc. 198, Joint Pre-Trial Order, Uncontested Material Fact Nos. 105-119.
49 R. Doc. 203-6; see also R. Doc. 203-3.
50 Id.
51 R. Doc. 203-3.
52 R. Doc. 203-9.
53 Reich, 998 F.2d 324.
54 R. Doc. 203-6 at p. 68.
55 R. Doc. 203 (citing R. Doc. 203-6 at p. 68, which states only that Defendants provided timesheets to
Plaintiffs but does not address any materials supplied).
testimony of Raeon Williams, Defendant’s employee who supervised payroll, who
testified that time sheets were provided by Berry’s to the direct service workers.56
Defendants do not address this factor. While noting the parties’ arguments, Court
finds that it is unclear whether Plaintiffs supplied their own equipment or materials
other than the timesheets as reflected above. Thus, this factor is neutral, or tilts
slightly in favor of finding employee status, in regard to determining whether
Plaintiffs were employees under the FLSA.
Third, the Court must determine if the Plaintiffs had the ability to control their
profits and losses.57 Plaintiffs argue that their work duties, including the number of
hours they worked, were established by Defendants in accordance with the Plan of
Care for each consumer.58 Further, Plaintiffs argue that Defendants established each
Plaintiffs’ rate of pay, issued payments, and issued payroll policies governing
Plaintiffs’ pay.59 In support, Plaintiffs cite to the uncontested material facts outlined
in the parties’ joint proposed pre-trial order.60 These facts include admissions from
the Defendants that they set the rate of pay for each Plaintiff,61 the payroll policies
that governed how Plaintiffs were paid,62 and issued payments to Plaintiffs.63 In
response, Defendants contend that the State of Louisiana created the Plan of Care
56 R. Doc. 203-6 at 68.
57 Reich, 998 F.2d 324.
58 R. Doc. 203.
59 R. Doc. 203 (citing R. Doc. 198, Joint Pre-Trial Order, Uncontested Material Fact Nos. 75-89, 120-
134, and 135-149).
60 R. Doc. 198.
61 R. Doc. 198, Uncontested Material Fact Nos. 75-89.
62 R. Doc. 198, Uncontested Material Fact Nos. 111-121.
63 R. Doc. 198, Uncontested Material Fact Nos. 100-110.
for each consumer, not Defendants.64 Here, there is no evidence that Plaintiffs could
make more or less money based on the quality of the work they performed or could
work additional hours in order to earn additional pay. There is also no evidence that
Plaintiffs were able to control when they worked. Instead, the evidence reveals that
these matters were controlled by Defendants. Accordingly, this factor also weighs in
favor of determining that Plaintiffs were employees under the FLSA.
Fourth, the Court must determine whether the work conducted by Plaintiffs
requires special skills.65 Plaintiffs argue that they were required to undergo training
by Defendants in order to be qualified to provide services to consumers.66 Plaintiffs
cite to testimony from Raeon Williams, Defendant’s employee, who testified in her
deposition that Defendants required Plaintiffs to undergo 16 hours of mandatory
orientation and training.67 Defendants counter that the State of Louisiana mandates
that workers such as Plaintiffs receive training and that training was provided by a
third-party, specifically Associates for Community Entry. Defendants provide a
certificate indicating that Francine Dixon completed training at Associates for
Community Entry to support their argument.68 Defendants’ evidence, however,
ignores that Defendants outsourced the training to the third party, Associates for
Community Entry. Accordingly, the Court finds that Defendants provided training to
Plaintiffs to perform special skills, even though they outsourced the training itself to
64 R. Doc. 210.
65 Reich, 998 F.2d 324.
66 R. Doc. 203-6 at p. 43; see also R. Doc. 198, Joint Pre-Trial Order, Uncontested Material Fact No. 6.
67 R. Doc. 203-6 at p. 43.
68 R. Doc. 210’ see also R. Doc. 210-7.
a third-party. Thus, this factor, too, weighs in favor of determining that Plaintiffs are
employees under the FLSA.
Fifth, the Court must determine the degree of permanence of the work
relationship.69 Plaintiffs provide evidence, specifically payroll stubs issued to
Plaintiffs including Stacey Badon, to establish that some of the direct service workers
were employed for long periods of time, including for several years.70 Defendants do
not contest this fact. However, Defendants also point to the fact that Anthony Badon
stated in his deposition that he worked for another home care agency.71 It is unclear
when Anthony Badon worked for another company, for how long, or what work he
did. Here, because each of the Plaintiffs worked for varying lengths of time for
Defendants, the Court finds that this factor is neutral in regard to determining
whether Plaintiffs were employees of Defendant.
Determining whether an individual is an employee under the FLSA is a “fact
intensive inquiry.”72 However, the crux of the analysis is whether the worker is
“economically dependent on the business to which he renders service or is, as a matter
of economic [reality], in business for himself.”73 Plaintiffs, as direct service workers,
are required to work with providers, like Defendants, in order to receive consumers.74
Accordingly, Plaintiffs are economically reliant on Defendants.
69 Reich, 998 F.2d 324
70 R. Doc. 203-11 (Paystubs and Payroll Registers Produced by Defendants for Plaintiffs); see also 203-
6 at p.70.
71 R. Doc. 210-5. Notably, Badon does not explain when he was working for an additional employer
besides Defendants.
72 Seong Song, 394 F. Supp. 3d at 755.
73 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992).
74 See R. Doc. 203-3 at p. 44; R. Doc. 203-4 at p. 26.
Further, the labels the parties assign to their relationship are not dispositive.75
Defendants contend that the direct service workers signed contracts titled “service
subcontract” with Defendants indicating that the workers were independent
contractors.76 However, Courts have held that the rights of parties to a contract are
determined by the substance of the contractual relationship, rather than the title of
it.77 Here, while the contract between Plaintiffs and Defendants is labelled as a
“service subcontract,” the parties’ relationship reveals that the Defendants exercised
control and supervision over Plaintiffs.78 Thus, the Court determines that the mere
existence of a contract is not conclusory of the Plaintiffs economic reliance on
Defendants. Having determined that a majority of the five factors of the economic
realities test weigh in favor of finding that Plaintiffs were employees of Defendants,79
the Court holds that Plaintiffs were employees of Defendants and thus the FLSA
applies to their claims.
B. Employee Status under the LWPA
Plaintiffs have also brought claims against Defendants under Louisiana’s
Wage Payment Act (“LWPA”).80 Louisiana law states that claims involving unpaid
75 See Coronado v. D. N.W. Houston, Inc., No. 13-2179, 2-14 WL 2779548, at *2 (S.D. Tex. June 19,
2014) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947)).
76 R. Doc. 205.
77 Simon v. Farm Bureau Ins. Co., 297 So. 3d 147, 152 (La. Ct. App. 2020) (citing Hughes v. Goodreau,
01-2107 (La.App. 1 Cir. 12/31/02), 836 So.2d 649, writ denied, 03-232 (La. 4/21/03), 841 So.2d 793
(citing Monsanto Co. v. St. Charles Parish School Bd., 94-2145, pp. 5-6 (La. 2/20/95), 650 So.2d 753,
756-57)).
78 R. Doc. 203-9.
79 The Court notes that three of the five factors fall in favor of finding employee status even if the Court
considers that factor number two, the plaintiffs’ investment in equipment or material, as neutral on
the issue.
80 See R. Doc. 1 at 8-9; Docket No. 20-584, R. Doc. 5 at 6-7; see also La. R.S. 23:631.1(A)(1)(a).
wages are authorized to be tried under as a summary proceeding.81 Summary
proceeding are ones “which are conducted with rapidity, within the delays allowed by
the court, and without citation and the observance of all the formalities required in
ordinary proceedings.”82 Louisiana courts have subsequently held that lawsuits
involving claims for unpaid wages are appropriately determined by the court without
a jury as summary proceedings.83 Accordingly, the Court must determine whether
Plaintiffs are “employees” under the LWPA.
The Court first must determine whether there is a valid contract between
Plaintiffs and Defendants.84 Neither party contests that there were signed
agreements between the parties.85 As described above, these contracts are titled
“service subcontracts.”86 This factor falls in favor of finding that the Plaintiffs were
not employees under the LWPA.
Next, the Court must determine whether the work being done is of an
independent nature such that the contractor may employ non-exclusive means in
accomplishing it and whether the contract calls for specific work to be done in
accordance with the Plaintiffs’ standards and without being subject to the control and
direction of the Defendants.87 Plaintiffs argue, and Defendants do not contest, that
81 La.R.S. 23:631(B); see also La.Code Civ.P. art. 2592(12).
82 La.Code Civ.P. art. 2592.
83 Fahed v. Ayesh, 16-748, p. 12 (La.App. 3 Cir. 2/15/17), 211 So.3d 1179, 1187-88 (in which claims
under the LWPA were tried by the trial court without a jury via summary proceedings); see also Hannie
v. Colonial Oaks AL Lafayette Employer, LLC, 334 So. 3d 17 (La. Ct. App. 3d Cir. 2022) (stating that
summary proceedings are specifically authorized for claims involving unpaid wages and in which
claims under the LWPA were determined by the trial court without a jury).
84 Hickman, 262 So.2d 385.
85 See R. Doc. 203-9, which includes contracts between Plaintiffs and Defendants.
86 R. Doc. 203-9.
87 Hickman, 262 So.2d 385.
Plaintiffs cannot independently contract and work with consumers.88 As testified by
Ms. Cooper, the representative of the Louisiana Department of Health, direct service
workers such as Plaintiff, cannot receive payment through state programs directly
and instead must work for a provider.89 Ms. Cooper testified that the workers were
not on the payroll of the state, the state did not dictate their rate of pay, and the state
did not directly involve themselves with the hiring and firing of these direct service
workers.90 Plaintiffs argue they were required to adhere to plans provided by
Defendants and abide by Defendants’ work standards.91 Defendants contend that
Defendants had the right to reject work and could work with other companies besides
Defendants.92
Here, the contract signed by Plaintiffs requires that Plaintiffs provide services
in accordance with the consumer plans provided to them and may not alter the
consumer service plan by “type, scope or duration.”93 Further, Plaintiffs were
required by their contracts to meet the same requirements as if they were part of the
Defendants staff, such as “staff qualifications, functions, evaluations, orientation,
and in-service training.”94 As previously described, Defendants also employed Service
Coordinators who supervised Plaintiffs as they provided services to consumers.95
88 R. Doc. 203-3 at p. 44; R. Doc. 203-4 at p. 26. Defendants point to the tax returns of Anthony Badon
(R. Doc. 210-8) as proof that he worked with a separate company, Amazing Care Service, and thus was
an independent contractor. It is unclear from the evidence provided what work Badon did for this
company and how it indicates that Badon was an independent contractor.
89 Id.
90 Id.
91 R. Doc. 203-9; see also 203-3 at pp. 38, 44; see also 203-6 at p. 25.
92 R. Doc. 205.
93 R. Doc. 203-9.
94 Id.
95 R. Doc. 203-6; see also R. Doc. 203-3.
Accordingly, the Court finds that the work conducted by Plaintiffs was not to be
accomplished in accordance with the Plaintiffs’ methods, but rather at the
Defendants’ direction, and was subject to the control and direction of the Defendants.
Thus, this second factor falls in favor of finding employee status under the LWPA.
Next, the Court must determine whether there was a set price for the overall
contract.96 Here, the contract between Plaintiffs and Defendants states an hourly rate
that Plaintiffs will receive upon working for Defendants, but no price is set for the
overall work to be provided under the contract.97
Finally, the Court must determine whether the contract between Plaintiffs and
Defendants is for a specific time and not subject to termination by either party
without liability.98 Here, the contracts are for set periods of time but can be
terminated by either party upon certain conditions.99 For example, Plaintiff Stacey
Badon entered into an agreement to work from “January 1, 2016 through April 30,
2016 unless otherwise terminated by either party.”100 Badon was permitted to
terminate the agreement either with or without cause provided he sent Defendants
prior written notice.101 Badon also entered into multiple contracts with Defendants
for additional periods of work.102 Accordingly, this factor weighs in favor of finding
Plaintiffs were independent contractors under the LWPA.
96 Hickman, 262 So.2d 385.
97 R. Doc. 203-9.
98 Hickman, 262 So.2d 385.
99 R. Doc. 203-9.
100 Id.
101 Id.
102 Id. Badon also entered into agreements with Defendants to work from May 1, 2016 through April
30, 2017 as well as January May 1, 2018 through April 30, 2019,
“The law further recognizes that inquiry to determine whether a relationship
is that of independent contractor or that of mere servant requires, among other
factors, the application of the principal test: the control over the work reserved by the
employer. In applying this test it is not the supervision and control which is
actually exercised which is significant, the important question is whether, from the
nature of the relationship, the right to do so exists.”103 Keeping in mind that the
appearance of control is the principal factor to determining whether an
employee/employer relationship exists,104 the Court determines that Plaintiffs were
employees under the Hickman factors. The evidence reveals that Defendants
controlled hiring and firing, supervised Plaintiffs’ work with consumers and required
Plaintiffs to comply with Berry’s policies and attend trainings arranged by
Defendants. In addition, Defendants handled the payroll and paid the Plaintiffs on
an hourly basis. The evidence in the record clearly supports that Defendants not only
had the right to control the work of the Plaintiffs, but it actually did so. Accordingly,
Plaintiffs are deemed employees under the LWPA.
For the reasons stated, the Court finds that Plaintiffs are properly classified
as employees under the Fair Labor Standards Act and under the Louisiana Wage
Payment Act.
103 Hickman, 262 So.2d 385 (1972).
104 Hulbert, 68 So. 3d at 670.
IV. CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial Summary
Judgment! is GRANTED.
New Orleans, Louisiana, June 9, 2022.
end & Vette
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE
105 R, Doc. 2038.