              Case: 12-12614     Date Filed: 07/16/2013   Page: 1 of 23


                                                                          [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                   No. 12-12614
                             ________________________

                   D. C. Docket No. 8:09-cv-01985-EAK-TBM

MICHAEL SCANTLAND,
DANIEL LAWRENCE,
individually, and on behalf of all
others similarly situated, et al.,

                                                               Plaintiffs - Appellants,

                                       versus

JEFFRY KNIGHT, INC.,
d.b.a. Knight Enterprises,
JEFFRY D. KNIGHT,

                                                             Defendants - Appellees.

                             ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________


                                 (July 16, 2013)

Before CARNES, HULL and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:
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      The plaintiffs in this conditionally certified collective action are current and

former technicians who installed and repaired cable, internet, and digital phone

services for defendant Jeffry Knight, Inc. (“Knight”), an installation and repair

service contractor for the cable company Bright House Networks (“BHN”) in

Florida. Plaintiffs appeal the district court’s order on summary judgment holding

that they were “independent contractors”—not “employees”—and therefore not

entitled to overtime and minimum wage protections afforded by the Fair Labor

Standards Act (“FLSA” or “Act”), 29 U.S.C. § 201 et seq. After careful review of

the record, and with the benefit of oral argument, we conclude that the district

court erred in this determination.

                         I.     STANDARD OF REVIEW

      This Court reviews an appeal from a summary judgment de novo and applies

the same legal standards that control the district court. RJR Nabisco, Inc. v. United

States, 955 F.2d 1457, 1459 (11th Cir. 1992). Federal Rule of Civil Procedure

56(a) provides that “[t]he court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The court must view all

evidence most favorably toward the nonmoving party, and all justifiable inferences

are to be drawn in the nonmoving party’s favor.” Hoffman v. Allied Corp., 912

F.2d 1379, 1383 (11th Cir. 1990).
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      A determination of employment status under the FLSA is a question of law

reviewed de novo. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996).

The underlying facts and reasonable inferences therefrom are viewed in the light

most favorable to plaintiffs, the non-moving party. Id.

                                 II.    THE FLSA

      Congress passed the FLSA “to lessen, so far as seemed then practicable, the

distribution in commerce of goods produced under subnormal labor conditions.”

Rutherford Food Corp. v. McComb, 331 U.S. 722, 727, 67 S. Ct. 1473, 1475

(1947). The FLSA’s overtime and minimum wage protections were the “method

chosen to free commerce from the interferences arising from production of goods

under conditions that were detrimental to the health and well-being of workers.”

Id. These protections, however, extend only to “employees,” a term given rough

outline by a series of broad definitions in the Act. 29 U.S.C. §§ 206, 207. An

“employee” is “any individual employed by an employer.” Id. § 203(e)(1). An

“employer” “includes any person acting directly or indirectly in the interest of an

employer in relation to an employee.” Id. § 203(d). The term “employ” “includes

to suffer or permit to work.” Id. § 203(g).

      These definitions are intended to be “comprehensive enough” to include

“working relationships, which prior to this Act, were not deemed to fall within an

employer-employee category.” Rutherford Food, 331 U.S. at 729, 67 S. Ct. at


                                          3
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1476 (quoting Walling v. Portland Terminal Co., 330 U.S. 148, 150-51, 67 S. Ct.

639, 640 (1947)). These “broad” definitions do not, however, bring “independent

contractors” within the FLSA’s ambit. See id. at 728-29, 67 S. Ct. at 1476.

      To determine whether an individual falls into the category of covered

“employee” or exempted “independent contractor,” courts look to the “economic

reality” of the relationship between the alleged employee and alleged employer and

whether that relationship demonstrates dependence. See Bartels v. Birmingham,

332 U.S. 126, 130, 67 S. Ct. 1547, 1550 (1947) (“[E]mployees are those who as a

matter of economic reality are dependent upon the business to which they render

service.”); Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S. Ct. 933,

936 (1961) (referencing “‘economic reality’ rather than ‘technical concepts’” as the

“test of employment”); Aimable v. Long & Scott Farms, Inc., 20 F.3d 434, 439

(11th Cir. 1994) (“To determine whether an employer/employee relationship exists

for purposes of federal welfare legislation, we look . . . to the ‘economic reality’ of

all the circumstances concerning whether the putative employee is economically

dependent upon the alleged employer.”). This inquiry is not governed by the

“label” put on the relationship by the parties or the contract controlling that

relationship, but rather focuses on whether “the work done, in its essence, follows

the usual path of an employee.” Rutherford Food, 331 U.S. at 729, 67 S. Ct. at

1476. “[P]utting on an ‘independent contractor’ label does not take the worker


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from the protection of the Act.” Id.; see also Usery v. Pilgrim Equip. Co., 527 F.2d

1308, 1312 (5th Cir. 1976) (“It is not significant how one ‘could have’ acted under

the contract terms. The controlling economic realities are reflected by the way one

actually acts.”).1

       Courts have applied various multifactor tests to guide the “economic reality”

inquiry. Both parties in the instant appeal rely on the following six factors, which

many courts have used as guides in applying the economic reality test:

       (1) the nature and degree of the alleged employer’s 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;
       (6) the extent to which the service rendered is an integral part of the alleged
           employer’s business. 2

       1
               The Eleventh Circuit has adopted, as binding precedent, all decisions of the
former Fifth Circuit handed down prior to close of business on September 30, 1981. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
       2
               The first five factors derive from Usery, the sixth from Rutherford Food. As the
U.S. District Court for the Southern District of Florida explained in another case examining the
employee-independent contractor issue in the context of the cable installation industry:

       No one factor is controlling, nor is the list exhaustive. The factors simply
       summarize the matters deemed relevant by the Supreme Court in Bartels v.
       Birmingham, 332 U.S. 126, 130, 67 S. Ct. 1547, 91 L. Ed. 1947 (1947), United
       States v. Silk, 331 U.S. 704, 716, 67 S. Ct. 1463, 91 L. Ed. 1757 (1947), and
       Rutherford Food, 331 U.S. at 729, 67 S. Ct 1473, to help gauge the degree of
       dependence of an alleged employee on the business with which they are
       connected. The weight of each factor depends on the light it sheds on the putative
       employee’s dependence on the alleged employer, which in turn depends on the
       facts of the case. See Antenor, 88 F.3d at 933.
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While these factors serve as guides, the overarching focus of the inquiry is

economic dependence:

       No one of these considerations can become the final determinant, nor
       can the collective answers to all of the inquiries produce a resolution
       which submerges consideration of the dominant factor—economic
       dependence. The . . . tests are aids—tools to be used to gauge the
       degree of dependence of alleged employees on the business with
       which they are connected. It is dependence that indicates employee
       status. Each test must be applied with that ultimate notion in mind.
       More importantly, the final and determinative question must be
       whether the total of the testing establishes the personnel are so
       dependent upon the business with which they are connected that they
       come within the protection of FLSA or are sufficiently independent to
       lie outside its ambit.

Usery, 527 F.2d at 1311-12 (emphasis in original) (citations omitted). Ultimately,

in considering economic dependence, the court focuses on whether an individual is

“in business for himself” or is “dependent upon finding employment in the

business of others.” Mednick v. Albert Enters., Inc., 508 F.2d 297, 301-02 (5th

Cir. 1975).3

                                   III.    DISCUSSION

       Because both parties apply the six-factor test set out above, and because we

agree that those factors are relevant to determining whether an individual is an

employee or independent contractor, we apply them here. We note, however, that


Santelices v. Cable Wiring, 147 F. Supp. 2d 1313, 1319 (S.D. Fla. 2001).
       3
               See Bonner, 661 F.2d at 1209.


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these six factors are not exclusive and no single factor is dominant. We view the

subsidiary facts relevant to each factor through the lens of “economic dependence”

and whether they are more analogous to the “usual path” of an employee or an

independent contractor. And of course, in the summary judgment posture of this

case, we take reasonable inferences in favor of the plaintiffs in determining the

facts underlying each factor in the analysis.

      A. Control

      The first factor considers the nature and degree of the alleged employer’s

control as to the manner in which the work is to be performed. “Control is only

significant when it shows an individual exerts such a control over a meaningful

part of the business that she stands as a separate economic entity.” Usery, 527

F.2d at 1312-13. The facts, viewed in the light most favorable to plaintiffs,

indicate that Knight exercised significant control over plaintiffs such that they did

not stand as “separate economic entities” who were “in business for themselves.”

      Technicians were required to report to a Knight facility by 7:00 to 7:15 each

morning. Technicians would turn in equipment from the previous day and submit

their work orders, which included the billing codes that determined their pay for

particular jobs. These billing codes were set by Knight, and managers could

unilaterally change the codes that technicians reported, thereby reducing a




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technician’s pay. 4 Plaintiffs would also receive a “route” detailing the current

day’s work orders, which were generally assigned in two-hour timeslots. Though

plaintiffs’ “Independent Contractor Service Agreements” provided that they could

“decline any work assignments,” plaintiffs testified that they could not reject a

route or a work order within their route without threat of termination or being

refused work in the following days. Thus, while a technician might consider a

specific route or work order unprofitable, because, for example, it was low-paying

or far away, plaintiffs had no power to decline the assignment. 5 Technicians also



       4
               BHN provided Knight billing codes that determined what Knight was paid for
completing a particular job. Knight then adjusted those billing codes for use by technicians to
determine what a technician would be paid for completing a particular job. This resulted in a
60/40, 55/45, or 50/50 split of the proceeds of a job, with the unequal splits favoring Knight.
       5
                Certain jobs are more profitable because of the billing codes assigned to them,
how far away they are (and thus how much gas must be used to reach them), or how quick or
easy they are to complete. For example, apartments might be easier than houses because they are
wired for easy cable hook-ups. Thus, even though a job at an apartment complex could take
significantly less time than the same job at a house, technicians would be paid the same amount
for both jobs.

        The issue of whether technicians were able to choose preferred work orders and areas or
reject unwanted ones is strongly contested by the parties. Plaintiffs’ testimony indicates that
some technicians were able to select particular areas or work orders. Plaintiff Scantland testified
in his deposition that, as a “lead” technician, he let his best technicians cherry pick the work
orders they wanted from others’ routes. Plaintiff Zapata’s deposition testimony confirmed this
practice. He testified that his route was often cherry picked by the time he arrived at work.
Plaintiffs Zapata and Hauser testified that their geographic preferences were usually granted.

        On the other hand, plaintiffs’ testimony clearly asserts that they were not free to decline
particular work orders, as claimed by Knight. Plaintiffs Zapata and Sperry testified that when
they tried to decline unpleasant jobs, they were threatened with being terminated or not receiving
work the next day. Plaintiff Downs testified that it was known that if a technician turned down a
route he could be given a difficult, low-paying job, such as digging to lay lines, or no work at all
the following day. Plaintiff Hauser testified that he had been denied work for a couple of days
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might be required to attend quality control meetings and classes on new equipment

or participate in a monthly equipment inventory conducted by BHN, which

required technicians to unload their trucks and account for all BHN equipment.

This morning routine could last up to two hours. Plaintiff Sperry testified that he

had to arrive by 5:30 a.m. in order to make it to his first job assignment on time.

       During occasional downtime, technicians could request additional jobs; they

could also be required to assist other technicians or be assigned additional jobs that

they could not refuse. Technicians might be required to stay on the job until all the

technicians in their area had completed their work; they could also be called back

to jobs long after completing them to address problems.

       Plaintiffs could “upsell” by convincing customers to add additional BHN

services, but those orders had to be approved by Knight. Plaintiffs could not sell

non-BHN services to customers and could not work for other companies, either

because they were told they could not do so or because the schedule Knight

imposed prevented them from doing so. Plaintiffs could, according to their

contract, employ others to help them, but any such “employees” had to be




after he refused an additional assignment toward the end of his workday. Hauser also testified
that his preferred area was taken away from him after he declined a particular assignment.

       Technicians could transfer work orders among themselves and pair up to complete their
work; when they did so, they determined among themselves how to divide their pay.


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technicians already engaged by Knight, and were therefore bound by Knight’s

policies.

       Plaintiffs were subject to meaningful supervision and monitoring by Knight.

Technicians routinely communicated with dispatch during the day and were

required to log in and out of Work Force Management—a service on their cellular

phones that they paid for via payroll deductions—to indicate when they arrived on

a job, when they completed a job, and what their estimated time of arrival was for

their next job. 6

       Knight or BHN also conducted site checks of technicians’ work, and Knight

tracked technicians’ “quality control discrepancy rate.” Technicians with

consistent quality control issues could be given “remedial training” at a “mock

house” or they could be terminated. An installation manager also might counsel a

technician regarding his physical appearance or the appearance of his vehicle.

       Knight levied uncontestable fines called “chargebacks” for not meeting

specifications, not using Work Force correctly, misplacing inventory, or being late

to a job. Typically, $100 would be deducted from the technician’s pay for

chargebacks on residential jobs and $150 for commercial jobs. Plaintiff Downs


       6
               It does not appear, however, that Work Force Management would provide an
accurate picture of all technicians’ schedules. Plaintiff Downs testified that his supervisor told
him to log in and out of Work Force according to time slots, not actual arrival times, so that it
would appear that they were on schedule. Plaintiff Hauser testified that he would postpone
logging out of Work Force when he completed a job in order to avoid being assigned more work.


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testified that chargebacks could mount up to the point where they surpassed the

amount of money a technician could earn on a job.

       Technicians could also be “downloaded,” i.e., fired, for consistently

misbilling, fraudulently billing, stealing, having a bad attitude, having consistently

low quality control ratings, and being rude to customers, other technicians, or

Knight employees. Knight’s Jill Williams testified that she and another installation

manager had downloaded more than one hundred technicians.

       Plaintiff technicians worked five to seven days a week; some were required

to work six days a week and sometimes seven days a week because of a

requirement that they work rotating Sundays. Plaintiffs regularly worked more

than forty hours a week. 7 Technicians either had to inform their supervisors that

they would be taking time off or request time off in advance, sometimes in writing.

       In sum, Knight controlled what jobs plaintiffs did, how much they were

paid, how many hours they worked, how many days they worked, their daily work

schedule, whether they could work for others, whether they could earn additional

income from customers, and closely monitored the quality of their work. Plaintiffs

could not bid for jobs or negotiate the prices for jobs. Their ability to hire and



       7
              For example, Plaintiff Sperry testified that he usually worked sixty to seventy-five
hours a week and sometimes as many as eighty hours a week. Plaintiff Zapata testified that he
usually worked fifty to sixty hours a week and sometimes up to seventy-five to eighty hours.
Plaintiff Downs testified that he frequently worked seventy-hour weeks.


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manage others was illusory. This alleged control strongly suggests that the

plaintiffs were economically dependent upon Knight.

       Knight vigorously disputes many of the facts relied upon by plaintiffs. We

are, however, bound at this stage of the litigation to view the facts in the light most

favorable to plaintiffs. Knight also disputes that particular alleged facts indicate

that it controlled plaintiffs. For example, Knight claims that the specifications

technicians were required to follow and the periodic communication they had to

maintain with Knight were consistent with duties required of independent

contractors. 8 We agree that meeting clients’ specifications and keeping clients

informed of job progress is consistent with the “usual path” of an independent

contractor. But the specific facts alleged by plaintiffs diverge from the “usual

path.” Plaintiffs testified that the manner of their work was tightly regulated by

Knight and left them with no discretion in how to approach a particular job. 9


       8
                See Herman v. Mid-Atlantic Installation Servs., Inc., 164 F. Supp. 2d 667, 672-73
(D. Md. 2000), aff’d sub nom. Chao v. Mid-Atlantic Installation Servs., Inc., 16 F. App’x 104
(4th Cir. 2001) (“It is in the nature of a contract that the contractor promises to deliver the
performance bargained for by the client. For example, a builder will build a building according
to the specifications of an architect. That does not make the builder an employee. A painter will
paint a house the colors dictated by the homeowner. That does not make the painter an
employee. In short, requiring a contractor to meet the client’s technical specifications is not the
type of ‘control’ which bestows ‘employee’ status on the contractor.”).
       9
                See Lang v. DirectTV, Inc., 801 F. Supp. 2d 532, 537-38 (E.D. La. 2011)
(concluding that a material issue of fact existed regarding whether satellite company’s
instructions to installation technicians “went beyond providing mere technical specifications”).
We also note that Knight was able to control the manner in which technicians performed their
work via its training regimens. As will be discussed below, most technicians were inexperienced
in the trade and were trained by Knight on how to meet detailed specifications.
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Furthermore, the communication that plaintiffs assert they were required to

maintain with Knight was constant, not periodic. Knight also argues that its

quality control measures cannot be “the single fact that … convert[s] an otherwise

independent relationship into one of employment.” It is not. Here, Knight’s

quality control measures are just one of numerous indicia of control that together

strongly suggest an employee-employer relationship.

      Knight further argues that the chargebacks it levied against technicians were

consistent with a contractual relationship in which money would be withheld when

work was not done correctly. Knight relies on Herman v. Mid-Atlantic Installation

Services, Inc., where the district court determined that chargebacks were akin to

“punch lists” in construction contracts where “a certain percentage is generally

withheld from each payment pending complete performance of the contract.” 164

F. Supp. 2d 667, 673 (D. Md. 2000), aff’d sub nom. Chao v. Mid-Atlantic

Installation Servs., Inc., 16 F. App’x 104 (4th Cir. 2001). We view the

chargebacks differently. Such fines can also be levied against employees for

shortages caused by loss or breakage. Furthermore, when an independent

contractor fails to follow specifications, the usual penalty is the actual cost of

damages, whereas here the chargebacks were flat charges that could exceed the

actual value of the job at issue. Thus, the chargebacks here seem more consistent




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with disciplining employees. Though the chargebacks do not strongly indicate

employee status, they also do not support a finding of independent contractor

status.10

       Knight also argues that its quality control measures and regulation of

schedules stemmed from “the nature of the business” and are therefore not the type

of control that is relevant to the economic dependence inquiry. We disagree. The

economic reality inquiry requires us to examine the nature and degree of the

alleged employer’s control, not why the alleged employer exercised such control.

Business needs cannot immunize employers from the FLSA’s requirements. If the

nature of a business requires a company to exert control over workers to the extent

that Knight has allegedly done, then that company must hire employees, not

independent contractors.

       Finally, Knight points this Court to unpublished opinions finding that an

installation contractor such as Knight did not exercise control over technicians.

We find those non-binding decisions unpersuasive in light of the specific facts of

this case. The facts of this case more closely resemble cases in which courts have

found installation technicians to be employees. 11


       10
               We also note that the record indicates that technicians already had to provide
Knight with a separate warranty retainer that, per the parties’ contract, ensured that technicians’
work would be free from defects for a set period.
       11
              For example, in Santelices, the district court denied a cable installation
contractor’s motion for summary judgment because of the existence of a material issue of fact
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       Assuming factual inferences in favor of plaintiffs, this factor points strongly

toward “employee” status.

       B. Opportunity for Profit or Loss

       The second factor considers the alleged employee’s opportunity for profit or

loss depending upon his managerial skill. The facts, taken in the light most

favorable to plaintiffs, indicate that plaintiffs’ opportunity for profit or loss

depended more upon Knight’s provision of work orders and technicians’ own

technical skill and efficiency than their managerial skill.

       Plaintiffs’ opportunity for profit was largely limited to their ability to

complete more jobs than assigned, which is analogous to an employee’s ability to

take on overtime work or an efficient piece-rate worker’s ability to produce more

pieces. An individual’s ability to earn more by being more technically proficient is

unrelated to an individual’s ability to earn or lose profit via his managerial skill,

and it does not indicate that he operates his own business. As the Supreme Court

has explained, a job whose profits are based on efficiency is “more like piecework

than an enterprise that actually depend[s] for success upon the initiative, judgment

with regard to the control factor. Santelices, 147 F. Supp. 2d at 1319. The district court cited
several “specific indicia of control” relevant here: the technician was required to report to a
warehouse at a specific time each morning, he could not turn down work, he had to adhere to
specific timeframes, he had to “maintain periodic communication with the company” via a two-
way radio that was paid for via paycheck deductions, his ability to earn extra money was limited
because scheduled work took precedence and any additional work had to be approved, he did not
have the ability to negotiate the prices charged for his services, and he was “not at liberty to hire
his own helpers.” Id. at 1321-23.


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or foresight of the typical independent contractor.” Rutherford Food, 331 U.S. at

730, 67 S. Ct. at 1477.

       Technicians could not negotiate or otherwise determine the rates they were

paid for jobs. In fact, the billing codes they submitted were subject to unilateral

change by Knight. They were also subjected to uncontestable chargebacks that

could wipe out their earnings from a single job. 12 Knight’s argument that plaintiffs

could control losses by avoiding chargebacks is unpersuasive. Chargebacks relate

to the quality of a technician’s skill, not his managerial or entrepreneurial prowess.

       Plaintiffs’ ability to earn additional income through their own initiative was

limited. Though plaintiffs could “upsell,” any jobs added to a work order by a

technician had to be approved by Knight, and plaintiffs testified that the extra

income was minimal and often not worth the additional effort. Plaintiffs could not

sell non-BHN services to customers, nor work for other companies because of

either a flat prohibition or because the schedules demanded by Knight prevented

them from pursuing other work.

       Plaintiffs were able to exert some control over their opportunity for profits

by pairing up to complete jobs and trading jobs among each other, but this ability

was ultimately limited by the number and types of jobs Knight assigned them and
       12
                See Lang, 801 F. Supp. 2d at 539 (“Plaintiffs’ ability to influence their profits and
losses is also impacted by the extent to which defendants could deduct fees from plaintiffs’ pay.
This is particularly true if the defendants deducted fees in excess of the value of the jobs
performed, and plaintiffs had no means of recourse to dispute the deductions.”).


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whether Knight’s assigned schedule permitted them time to do so. Furthermore, as

previously discussed, though the parties’ contract provided that technicians could

hire helpers, this authority was illusory. Any helpers were required to be

contracted with Knight as technicians, thus precluding the exercise of any real

managerial skill over such helpers.

      Assuming factual inferences in favor of plaintiffs, and in light of the

minimal opportunity for profit (and that being little different from the usual path of

an employee), this factor suggests economic dependence, and points strongly

toward employee status.

      C. Investment in Equipment or Materials

      The third factor considers the alleged employee’s investment in equipment

or materials required for his task, or his employment of workers. This factor

favors independent contractor status, although it does so only weakly.

      As previously discussed, technicians’ ability to employ workers was

illusory. As regards investment in equipment and materials, Knight provides, via

BHN, the hardware that is actually installed in customers’ homes and businesses,

such as cable boxes, DVRs, and cable modems. Technicians are required to have

vehicles, auto insurance, tools and safety equipment, and commercial general

liability insurance. However, in light of the fact that most technicians will already

own a vehicle suitable for the work and that many technicians purchased specialty


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tools from Knight directly via payroll withholdings, there seems to be little need

for significant independent capital and very little difference from an employee’s

wages being increased in order to pay for tools and equipment. Furthermore, even

though a technician who initially bought his tools from Knight and paid for them

via withholdings has some economic independence when the tools are paid for, it

is analogous to the independence any employee has who has gained experience and

the ability to market himself to competing employers.

       In sum, these expenditures seem to detract little from the worker’s economic

dependence on Knight, which is the lens through which we evaluate each of the

several factors. Thus, to the extent that this factor weighs in favor of independent

contractor status, the weight in that direction is minimal.

       D. Special Skill

       The fourth factor considers whether the service rendered requires a special

skill. This factor favors independent contractor status, but it does so only weakly.

       Plaintiffs were clearly skilled workers. 13 The meaningfulness of this skill as

indicating that plaintiffs were in business for themselves or economically

independent, however, is undermined by the fact that Knight provided most

technicians with their skills. Technicians could come to Knight from other

       13
                Plaintiffs conceded as much in their Second Amended Complaint. See Doc. 38 at
1 (“Plaintiffs are skilled technicians who install and repair high-speed Internet, cable television
and telephone services for customers of Defendant Bright House, LLC.”).


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installation outfits or be completely inexperienced. Most technicians, however,

were inexperienced and underwent some length of unpaid training by Knight,

which was followed by some period of unpaid ride-alongs with experienced

technicians, before performing work on their own. Robert Collins, a former

Knight installation manager, testified that Knight generally provided about two

weeks of training and technicians did about a week of ride-alongs, and he

estimated that only 10 to 15 percent of technicians did not require training.

      Plaintiffs were, therefore, dependent upon Knight to equip them with the

skills necessary to do their jobs. The skills attained by technicians point toward a

degree of economic independence insofar as a highly trained technician could gain

economic independence by the ability to market his skills to a competing

employer. This does not, however, significantly distinguish such a worker from

the “usual path of an employee.” To the extent that this factor favors independent

contractor status, it does so weakly.

      E. Permanency and Duration

      The fifth factor considers the degree of permanency and duration of the

working relationship. This factor points strongly toward employee status.

      Named plaintiffs worked for Knight for an average of more than five years.

Their contracts were for year terms, were automatically renewed, and were




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terminable only with thirty days’ notice. These facts suggest substantial

permanence of relationship.

      Knight argues that this factor must also be viewed in terms of exclusivity,

arguing that a technician’s ability to work for other installation contractors is

significant. Exclusivity is relevant. However, the facts viewed in the light most

favorable to plaintiffs favor plaintiffs in this regard. Plaintiffs’ evidence indicates

that they could not work for other companies, were required to work long hours,

and could not turn down work orders. Thus, their relationship with Knight was not

only of long duration, but it was also exclusive.

      Assuming factual inferences in favor of plaintiffs, and looking through the

lens of economic dependence vel non, long tenure, along with control, and lack of

opportunity for profit, point strongly toward economic dependence. Thus, this

factor strongly indicates employee status.

      F. Integral Part of Alleged Employer’s Business

      The sixth and final factor considers the extent to which the service rendered

is an integral part of the alleged employer’s business. This factor weighs clearly

and strongly toward employee status.

      Approximately two-thirds of Knight’s business consists of the

telecommunications installation and repair services it performs for BHN. Knight

relies on approximately five hundred technicians to perform installations and


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repairs in BHN customers’ homes and businesses. Knight’s website described its

Installation Services department as the “backbone” of its business.

      The integral role played by technicians in Knight’s business shows that the

arrangement follows more closely that of an employer-employee relationship than

an independent contractor dynamic. If Knight had truly outsourced such a large

portion of its business, as would be true if plaintiffs were independent contractors,

then the company would retain far less control over the business. However,

because of Knight’s concern with the quality of the services it provides through

this arrangement, it does, as one might expect, control the relationship in much the

same way a company would control its employees. The technicians’ integral part

in Knight’s business follows the “usual path of an employee.”

      Assuming factual inferences in favor of plaintiffs, this factor points strongly

toward employee status.

      G. Weighing the Factors

      When all the facts are viewed in the light most favorable to the plaintiffs and

all reasonable inferences are drawn in their favor, four of the six factors weigh

strongly in favor of employee status. The two factors that do not—investment and

special skill—weigh only very slightly toward independent contractor status.

Neither contributes in any significant manner to the workers’ economic

independence or to distinguishing the workers from “the usual path of an


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employee.” Thus, we conclude that, viewing the facts most favorably toward

plaintiffs and with all justifiable inferences drawn in their favor, plaintiffs were

“employees”—not “independent contractors”—under the FLSA. Because there are

genuine issues of material fact, and because plaintiffs were “employees” if all

reasonable factual inferences are found in plaintiffs’ favor, the district court erred

in granting summary judgment to Knight.

   IV.    MOTIONS REGARDING KNIGHT’S ALLEGED COERCIVE AND

                            RETALIATORY CONDUCT

      Plaintiffs argue that the district court abused its discretion in failing to limit

Knight’s allegedly coercive and retaliatory course of conduct against plaintiffs and

potential opt-in plaintiffs and that the district court took no action in response to its

repeated efforts to bring this alleged conduct to its attention via various motions.

      This is not the case. On March 16, 2012, the district court denied the

plaintiffs’ motions to reopen the opt-in period, for protective order, for corrective

notice, and for sanctions. The court noted that a pretrial conference had been

scheduled, trial was set to begin in June, discovery was over, “dispositive motions

[had] been taken under advisement,” and reopening the opt-in period “would serve

no purpose.” The district court also explained that any “additional claims of

retaliation . . . can be pursued in a separate case.”




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       We review a district court’s decision made in the course of managing its

docket for an abuse of discretion. See Young v. City of Palm Bay, Fla., 358 F.3d

859, 863-64 (11th Cir. 2004). Plaintiffs do not challenge the district court’s

rationale in this regard. We therefore conclude that the district court did not abuse

its wide discretion in managing its docket.

                                   V.     CONCLUSION

       The district court’s denial of plaintiffs’ motions to reopen the opt-in period,

for protective order, for corrective notice, and for sanctions is AFFIRMED. The

district court’s summary judgment order is REVERSED and REMANDED for

further proceedings consistent with this opinion.14




       14
                Knight’s motion to strike plaintiffs’ notice of supplemental authority is DENIED
AS MOOT. Other challenges to the judgments of the district court are rejected without need for
further discussion.
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