This past month, a federal court in Maryland permitted construction flaggers to proceed past summary judgment to discovery and possible trial, because the flaggers were not paid overtime for their work, while labeled “independent contractors.” Randolph et. al. v. Powercomm Constr., Inc., Civ. No. PWG-16-1696 (D. Md. Mem. Op. Mar. 25, 2014). Though employers and their attorneys often like to kick employee lawsuits out of court at the summary judgment stage, which means before trial, Judge Grimm in Randolph let the case proceed mostly based on the workers’ sworn affidavits contradicting the employer’s story. Sworn declarations by the former flaggers disputing the employer’s story created enough dispute of material fact that the case requires a jury. Id. at 10. Currently, the case is proceeding to discovery and toward trial. Further, the flaggers in Randolph will be able to notify other flaggers of the same company about this lawsuit, in case others were denied overtime and want to join in. Id. at 22-27. The federal court also rejected the employer’s argument that the employer should prevail on summary judgment, and boot the employee overtime lawsuit from court, because the employer’s documents proved the flagger’s declarations were “false.” In response, the court held that “[t]his is precisely the type of factual dispute that makes summary judgment inappropriate,” and let the case proceed. Id. at 11. Further In Randolph, the court rejected the employer’s argument that because a subcontractor supervised and trained the flaggers involved, the employer being sued was not the employer of record, but rather the subcontractor. Under both the Fair Labor Standards Act and Maryland Wage & Hour Law, multiple companies and persons that supervise and direct employees are liable for paying legally required overtime to them when earned. A company’s use of a subcontractor supervisor, while paying and directing those same employees, will not let that company off the hook. The court rejected the employer’s argument, calling it “too clever by half.” Id. at 16-17. We at Lebau & Neuworth, LLC, are experienced in evaluating so-called ‘independent contractor’ status and taking employers to court for overtime owed. If you think you have been improperly denied overtime, give us a call.
