Authors: Donald Douglas and Michael Levatino

General Contractor found liable to “independent contractor” under the Fair Labor Standards Act.

In a recent case from the United States District Court for the Middle District of Louisiana, a general contractor was found liable to an employee, which the contractor treated as an independent contractor, under the Fair Labor Standards Act (“FLSA”) for unpaid overtime, liquidated damages, emotional distress, and attorney’s fees. In Nestor Badillo-Rubio v. RF Construction, LLC, 2022 WL 821421 (M.D. La. 2022), the Plaintiff filed suit against a general contractor for unpaid overtime under the FLSA. The contractor argued that the Plaintiff was an independent contractor not entitled to make any claims under the FLSA. After a trial on the merits, the Court found that the Plaintiff was not an independent contractor but an employee for purposes of the FLSA.

The Court reviewed the five long standing Silk factors to determine whether the Plaintiff qualified as an employee of the general contractor or if he was an independent contractor. The Court found that (i) the general contractor exercised a sufficient degree of control over the Plaintiff by setting work hours and assigning jobs; (ii) the general contractor provided equipment for the Plaintiff to use; (iii) the general contractor paid the Plaintiff a fixed daily rate which indicated the Plaintiff was a wage worker; (iv) the Plaintiff’s work was characterized as labor and routine work not requiring individual skill or initiative; and (v) the Plaintiff worked solely for the general contractor. The Court thus found that all the factors weighed in favor of a finding that the Plaintiff was an employee of the general contractor for FLSA purposes and not an independent contractor.

After classifying the Plaintiff as an employee and finding the general contractor was a covered entity, the Court, based on the evidence, granted the Plaintiff $2,602.08 in unpaid overtime. The Court also found the general contractor did not act in good faith or with reasonable grounds to believe that its actions complied with FLSA, and as a result, awarded the employee liquidated damages in the amount of $2,602.08. Additionally, the Court found the general contractor retaliated against the Plaintiff after filing suit to recover unpaid overtime in violation of the FLSA and entitled Plaintiff to $2,500 in emotional damages. Finally, the Court granted reasonable attorney’s fees to be set at a later date.

Rubio v. RF Construction, provides a fair warning to general contractors using what they deem to be “independent contractors.” Although true independent contractors do not have a cause of action under the FLSA, Rubio makes it clear that workers identified as independent contractors may be classified as employees under the FLSA entitling the worker to unpaid overtime, liquidated damages, and attorney’s fees if they satisfy the Silk test.