REVISED AUGUST 12, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 08-31226 July 26, 2010
Lyle W. Cayce
Clerk
LOUIS THIBAULT, JR.
Plaintiff - Appellant
v.
BELLSOUTH TELECOMMUNICATIONS INC; ROBERT J PARKER, doing
business as Parker Communications; DIRECTIONAL ROAD BORING INC;
PARKER COMMUNICATIONS INC; ROBERT W PARKER; PARKER
COMMUNICATIONS LLC
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Louis Thibault, Jr., (Thibault) brought suit against BellSouth
Telecommunications (BellSouth), Directional Road Boring, Inc. (Directional), and
Robert J. Parker, Robert W. Parker, and Parker Communications LLC
(collectively Parker) arising out of electrical splicing work he performed in New
Orleans, Louisiana in the aftermath of Hurricane Katrina. Thibault claimed
violations of the Fair Labor Standards Act (FLSA), under 29 U.S.C. § 207(a)(1),
a Louisiana state-law breach of contract, and failure to pay wages under LA.
No. 08-31226
REV. STAT. ANN. § 23:631. The trial court dismissed these claims on summary
judgment. Thibault appeals the dismissal of the FLSA claim and the breach of
contract claim.1 We address two issues: first, whether Thibault may maintain
a claim under the FLSA, and second, whether summary judgment is appropriate
for his breach of contract claim.2
BACKGROUND
As a result of Hurricane Katrina, BellSouth’s telephone infrastructure
suffered serious damage. BellSouth undertook the project of rewiring its entire
New Orleans Area telecommunications grid. To complete this project, BellSouth
employed “splicers.” A splicer installs, cuts, repairs, and tests various high
voltage cables. Because of Katrina, BellSouth could not, by itself, restore phone
services to the region. Accordingly, BellSouth contracted with Directional to
provide assistance with their project. Directional also employed their own
splicers. But even Directional’s additional splicers did not suffice. Directional
therefore contracted with Parker to provide additional splicers for the project.
Parker contacted Bill Peek, a splicer in Delaware. Parker informed Peek
that the job would require about eighty-four hours of work per week at an hourly
1
BellSouth and Directional filed cross claims against Parker arising out of Parker’s
duty to defend and indemnify. Parker filed a cross claim against Directional claiming
Directional breached its contract with Parker by failing to pay the correct amount for splicers.
The trial court resolved BellSouth and Directional’s claims against Parker. At the time of this
appeal, however, the trial court had not resolved Parker’s cross claims against Directional. At
the request of all parties, the district court entered an order under FED. R. CIV. P. 54(b)
certifying as final judgments nunc pro tunc the judgment entered against Thibault. That order
allows us to retain our jurisdiction over the case. See St. Paul Mercury Ins. Co. v. Fair
Grounds Corp., 123 F.3d 336, 338 & n.6 (5th Cir. 1997).
2
Thibault has not briefed or appealed the summary judgment on his claim under
Louisiana wage law statutes. Therefore, we do not address that claim and the judgment as
to it is affirmed.
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No. 08-31226
rate of sixty-eight dollars and a fifty dollar per-diem. He also informed him that
splicers would have to provide their own bucket trucks and tools to do the work.
Mr. Peek was interested, and told his best friend, Lewis Thibault, of the job
opportunity. Mr. Thibault was not a splicer by profession, but had experience as
a navy jet engine mechanic. He owned and operated his own business in
Delaware called K & L Sales, Inc. His business sold picnic tables, storage
buildings, and golf carts. In 2005, his business made over $500,000 in gross
profit. Despite his success, Thibault decided to accept Peek’s invitation to travel
to New Orleans as it would provide a much needed break for him from his
marital problems and he felt New Orleans would be an opportunity to “get [his]
head clear.” Through Peek, Thibault was able to borrow a spare truck and
various tools that the job required. Peek also taught Thibault the basics of
splicing over the course of an evening; Thibault was able to learn the rest on the
job.
In October, Thibault filled his trailer home with water and food, and the
two men drove to Louisiana. From October 4, 2005 to January 6, 2006, Thibault
worked as a splicer. In that time, Thibault made $51,628. Everyday, Thibault
was required to report to Kenner Yard, a property rented by BellSouth. At the
first meeting, Thibault claims that a Parker supervisor informed them that they
would be paid sixty-eight dollars an hour, would work at least eighty-four hours
a week and would get a per diem and a place to park his motor home. Every day,
Thibault showed up to Kenner Yard, and was assigned a specific splicing job in
New Orleans. BellSouth engineers created the overall rewiring plan for New
Orleans. BellSouth supervisors designated the specific jobs to be done daily, and
assigned Directional supervisors to distribute the assignments. When Thibault
received his assignment, he was then required to take his truck to the job and
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No. 08-31226
work on the problem he was assigned. When completed, Thibault would return
to Kenner Yard and would be assigned another splicing job. He worked in
thirteen-day intervals with a one-day break in between. While Parker paid
Thibault, BellSouth had to approve all vacation and break time. On January 6,
Parker laid off Thibault. Directional offered Thibault a job as a splicer, working
directly for Directional, but Thibault declined. Instead, he returned to Delaware,
and has not worked as a splicer since. Thibault brought this suit against Parker,
Directional, and BellSouth for overtime pay under the FLSA, breach of contract,
and Louisiana wage law statutes.
ANALYSIS
I. Fair Labor Standards Act
Thibault contends that he is entitled to overtime compensation for hours
worked in excess of forty hours per week pursuant to the 29 U.S.C. § 207(a)(1).
The FLSA gives employees3 certain protections from employers. The defendants
contend that Thibault is not an employee, but an independent contractor. We
review Thibault’s status de novo. Carrell v. Sunland Constr., Inc., 998 F.2d 330,
332 (5th Cir. 1993). In the present setting, a relevant question is whether the
alleged employee so economically depends upon the business to which he renders
his services, such that the individual, as a matter of economic reality, is not in
business for himself. Id. The contractual designation of the worker as an
independent contractor is not necessarily controlling. See Hopkins v. Cornerstone
Am., 545 F.3d 338, 346 (5th Cir. 2008). Instead, we generally use as a guide five,
non-exclusive factors: (a) the permanency of the relationship; (b) the degree of
3
The FLSA defines “employee” to mean “any individual employed by an employer.” 29
U.S.C. § 203(e)(1). “‘Employ’ includes to suffer or permit to work” Id. § 203(g).
4
No. 08-31226
control exercised by the alleged employer; (c) the skill and initiative required to
preform the job; (d) the extent of the relative investments of the worker and the
alleged employer; and (e) the degree to which the worker’s opportunity for profit
and loss is determined by the alleged employer. Id. at 332–33. These factors are
merely aids to analysis and no single factor is determinative. Id. at 332.
Here, we believe the holding of Carrell provides substantial guidance. In
Carrell, this Court faced the issue of whether twenty welders were employees
under the FLSA for purposes of overtime compensation. Id. The Carrell court
went through each of the five factors, and decided overall that the welders were
independent contractors. Id. at 334.
A. The Permanency of the Relationship
First, Carrell addressed the permanency of the relationship:
“During each of the years relevant to this lawsuit, none of the
Welders worked exclusively for Sunland. To work consistently
throughout the construction season, which lasts six to nine months,
the Welders moved from job to job, company to company, and state
to state. Sunland hired the Welders on a project-by-project basis, but
made an effort to move the Welders to subsequent projects. The
duration of Sunland's construction projects averaged six weeks, but
some projects lasted only a few days. The average number of weeks
that each Welder worked per year for Sunland varied from
approximately 3 weeks to 16 weeks.”
Id. at 332. Like the welders, Thibault did not work exclusively for the
defendants. He had his own business selling picnic tables, storage buildings, and
customized golf carts, in his home state of Delaware. The nature of splicer work
requires travel to different parts of the nation where the jobs are. Splicers travel
from job-to-job and from state-to-state looking for work. Thibault and Peek
traveled from Delaware to work in the aftermath of Hurricane Katrina. The
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No. 08-31226
project lasted only until the re-wiring project after Katrina finished. Thibault
intended to return to Delaware after seven or eight months.
B. Degree of Control
Second, the Carrell court addressed the degree of control exercised by the
employer:
“While working for Sunland, the Welders performed only
pipe-welding work. Sunland assigned the Welders to specific welding
work and maintained daily time records for each Welder. Sunland,
however, did not specify the amount of time that a Welder could
spend on an assignment. Sunland required the Welders to work the
same days and hours as the remainder of Sunland's crew, including
taking the same daily break periods.”
Id. at 333. The court also relied on the fact that Sunland classified the welders
as independent contractors, and many of the welders considered themselves self-
employed. Here, the defendants considered the splicers independent contractors.
Many of the splicers considered themselves self-employed. The Carrell welders
did only welding, and similarly here Thibault only performed splicing work. The
defendants assigned the splicers to specific splicing work and maintained daily
time records for each splicer. BellSouth required the splicers to work the same
days and hours as the remainder of the BellSouth crew, including taking the
same daily break periods. In Carrell, Sunland did not control the manner and
method of pipe welding. Carrell, 998 F.2d at 332. Likewise, Thibault explained
that his supervisors would only come by occasionally, and never specified how
Thibault should do the splicing. According to Thibault, the defendants would tell
him what needed to be fixed or spliced or give him blueprints, and then it was up
to Thibault to go out and fix the problem. Once Thibault finished a particular
job, he would report back to be assigned another job.
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No. 08-31226
C. Skill & Initiative
Third, Carrell examined the skill an initiative required:
“Pipe welding, unlike other types of welding, requires specialized
skills. That the gas companies tested and certified each Welder
before a job demonstrates the specialized nature of the work. As for
the initiative required, a Welder's success depended on his ability to
find consistent work by moving from job to job and from company to
company. But once on a job, a Welder's initiative was limited to
decisions regarding his welding equipment and the details of his
welding work.”
Id. at 333. Thibault argues that he has never worked as a splicer before.
Thibault, however, was a jet engine mechanic in the navy. In fact, he described
his abilities: “I aced the mechanical aptitude test in the Navy. You show me how
to do something one time and I can do it.” Thibault learned the job from his
friend Peek, but also learned how to splice on the job, working next to Peek and
other splicers. Thibault explained that splicing dealt with complicated
equipment:
“I mean, you’re talking – you’re talking phone cables this big around
coming into a cross box, and there might be six of them in there. And
each wire has 3,200 pairs in it, which is 7,400 wires. And its all
going to these terminals. And you had to make sure they were going
in at the right terminal and coming out at the right terminal.”
Like Thibault, individuals learn to splice through an informal apprenticeship.
A fellow splicer testified that it took him about a year to learn the job. Like the
welders in Carrell, the splicers’ success depended on their ability to find
consistent work by moving from job-to-job.
D. Relative Investements
The fourth factor the Carrell court examined was the relative investments
of the worker and the alleged employer. Carrell, 998 F.2d at 333. The court in
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No. 08-31226
Carrell “recognized” the overall investment by the alleged employer, but it did not
focus on it, as Thibault does in his brief. Instead, Carrell compares the amount
the alleged employer and employee each contribute to the specific job the
employee undertakes. Id. For example, the welders supplied their own trucks,
welding machines mounted on the trucks, and other specialized welding tools.
Id. The welders also assumed the costs of operating and maintaining the trucks
and tools. Id. The welders provided their own lodging and own meals. Id. They
often bought their own assistants, who appear to have been unskilled or semi-
unskilled laborers. Id. at 333 n.3. The alleged employer in Carrell provided
general liability and worker’s compensation insurance. Id. at 333. It provided
the blades for the grinders that smoothed the surface of a pipe before it was
welded. Id. at 333 & n.2.
Like the welders in Carrell, Thibault provided his own bucket truck, cable
splicer, pump, ventilator, ladder, climbing belt, harness, hard hat, safety vest and
other miscellaneous tools (such as wrenches, hammers, screwdrivers and other
items one would usually find in a toolbox). In fact, the record contains a list of
over 100 different tools splicers were expected to have for the job. Thibault had
his own motor home, which he brought to Louisiana to live in. He stocked it with
enough water and food to last him at least six weeks. He drove two days to get
to New Orleans. We also “recognize[]” the overall investment by the defendants.
Carrell, 998 F.2d at 333. Unlike Carrell, however, we could not find, nor has
Thibault pointed to, any evidence in the record of paying for general liability
insurance. BellSouth did rent property in the area and built a shed and trailer
as a base of operations. BellSouth also provided the materials used in the
splicing: connectors, bonding straps, ground rods, terminal blocks, pedestals,
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No. 08-31226
cable, and drop wire, for example. The materials that BellSouth provided were
either incorporated into their network or brought back to Kenner Yard at the end
of the day. Parker, on the other hand, did not provide any materials, meals or
other services. Instead, Parker’s involvement in splicing seems limited to
keeping track of the men and the hours. There was some evidence to suggest that
Parker paid for worker’s compensation insurance.
E. Worker’s Opportunity for Profit & Loss
Fifth and finally, the Carrell court examined the degree to which the
worker’s opportunity for profit and loss is determined by the alleged employer:
“Sunland did not solicit bids or proposals from the Welders. It paid
the Welders a fixed hourly rate of $23, plus $10 per day for rental of
their grinders. Sunland intended approximately 40% of the $23
hourly rate to compensate the Welders for supplying their own
welding equipment. Sunland required the Welders to submit invoices
for work performed on Sunland projects. On appeal, the Welders
stress that Sunland exclusively controlled the Welders' compensation
while they worked on a Sunland project: Sunland rarely deviated
from its hourly rate, and it controlled the number of hours that the
Welders worked. . . .
[A] Welder's year-end profits or losses as a welder depended on his
ability to consistently find welding work with other companies and
to minimize welding costs.
....
Sunland exerted some control over the Welders' opportunity for
profits by fixing the hourly rate and the hours of work. Yet, the tax
returns of Carrell indicate that the Welders' profits also depended on
their ability to control their own costs. Moreover, the Welders
worked for numerous companies in each of the years relevant to this
dispute.”
Carrell, 998 F.2d at 333–34. Thibault worked for a fixed hourly rate of $68 per
hour, plus $50 per day per diem. The defendants required the splicers to fill out
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No. 08-31226
time sheets and invoices of the work performed. Like the Carrell welders, the
splicers’ year-end profits or losses depend on their ability to consistently find
splicing work with other companies. Thibault’s friend, Bill Peek testified that,
even though he lived in Delaware, splicing requires travel from job-to-job across
the country. The splicers here increased profits by controlling costs (repairs,
supply costs, food, water, housing, etc.).
F. Other Factors
The determination of whether an individual is an employee or independent
contractor is highly dependent on the particular situation presented. Carrell, 998
F.2d at 334. We do not hold that all splicers are always independent contractors.
Indeed, the nature of this analysis suggests that in some cases splicers might be
employees. E.g., Cromwell v. Driftwood Elec. Contractors, Inc., No. 09-60212,
2009 WL 3254467, at *3 (5th Cir. 2009) (unpublished). In Cromwell, for example,
the court found the splicers were employees. Id. Like Thibault, the Cromwell
splicers worked twelve hour days, were paid by the hour, provided their own tools
and trucks, and were assigned specific repair jobs each day. Id. at *1. Cromwell
compared that case to Carrell and Robicheaux v. Radcliff Material, Inc., 697 F.2d
662, 666 (5th Cir. 1983) (holding welders were employees under the FLSA). The
Cromwell panel aptly noted, “the facts of this case lie somewhere between those
of Carrell and Robicheaux.” Cromwell, 2009 WL 3254467, at *2. Likewise,
Carrell, Cromwell and Robicheaux are useful case studies in resolving this case.
We believe Thibault falls squarely within Carrell. Cromwell made a distinction
from the Carrell welders that does not apply to Thibault. Unlike the welders, the
splicers in Cromwell did “not have the same temporary, project-by-project,
on-again-off-again relationship with their purported employers.” Id. at *2. Also,
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No. 08-31226
a relevant distinction from Cromwell relates to the matter of economic
independence: whether Thibault is in business for himself. Carrell, 998 F.2d at
334.
The circumstances of Thibault’s employment reflect that he is not
economically dependant on the defendants. Unlike Cromwell, evidence shows
that Thibault is a sophisticated, intelligent business man who entered into a
contractual relationship to perform a specific job for the defendants. Thibault
worked for three months and his relationship to the defendants centered solely
around the specific project. After splicing in New Orleans, Thibault returned to
his company in Delaware and has not worked as a splicer since. For “tax
reasons,” Thibault had Parker make all payments directly to his company, K &
L Sales, Inc. In 2005, K & L Sales generated $500,503 in profit and $2,492,997
in gross sales.4 When he worked as a splicer, he also oversaw K & L Sales
operations and its multiple employees. As the owner of K & L Sales, Thibault
routinely contracted with product manufacturers, customers, and transporters.
He owned eight drag-race cars and also generated $1,478 in income from racing
professionally. In 2005 and 2006, he also owned and managed commercial rental
property that generated some income.5
4
An individual’s wealth is not a solely dispositive factor in the economic dependence
question. In 2005, Thibault reported an adjusted gross income of $82,951. His 1099 from
Parker reported $45,584 in non-employee compensation.
5
The plaintiff primarily relies upon Hopkins v. Cornerstone Am. to argue that he was
economically dependant on the defendents. The employer in Hopkins, however, has
significantly more economic control over its employees than defendants in the instant case had
over Thibault or the other similar splicers here. For example, the sales leaders in Hopkins
worked for the employer for years and were not allowed to work for other companies or
themselves. Id., 545 F.3d at 346. The employer prevented the sales leaders from owning and
operating other businesses. Id. at 344. Further, the court found that the sales leaders
exhibited no specialized skills. Id. at 345.
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No. 08-31226
Because we hold that the summary judgment record does not contain
sufficient evidence to support a finding that Thibault was an FLSA employee
while performing splicer services, we affirm the judgment dismissing the FLSA
claims.6
II. Breach of Contract
Thibault also appeals the dismissal of his Louisiana law breach of contract
claim. Specifically, he argues the defendants promised him six months of
employment and breached that agreement when they fired him after three
months of work.7 The district court held that the plaintiff did not produce any
summary judgment evidence that Thibault was hired for a fixed term. Under
Louisiana law, “[a]bsent a specific contract or agreement establishing a fixed
term of employment, an employer is at liberty to dismiss an employee at any time
for any reason without incurring liability for the discharge.” Chapman v. Ebeling,
945 So. 2d 222, 226 (La. App. 2 Cir. 2006). There needs to be an “objectively
determinable end to [Thibault’s] employment” defined when he is hired.
Overman v. Fluor Constructors, Inc., 797 F.2d 217, 220 (5th Cir. 1986). Under
Louisiana law:
“No single foreseeable event triggered the end of his job. . . . The time
when his services would no longer be needed depended on a number
of factors and, ultimately, on the judgment of his supervisor. Such a
flexible relationship, promising employment until one's services are
6
Because Thibault was not an employee, we need not address Thibault’s contention
that the defendants were joint employers under the FLSA.
7
In the trial court, Thibault also brought a breach of contract claim based on a promise
that Parker would provide him a paid location to keep his motor home. Since Thibault does
not present this as an issue on appeal and does not brief it, we do not address it and hold any
such claim has been waived by him.
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No. 08-31226
no longer needed, does not establish a fixed term, and, therefore, in
Louisiana at least, must be regarded as employment at will.”
Id. at 220.
Thibault did not produce sufficient summary judgment evidence to sustain
a finding of an agreement to a fixed term. The evidence that Thibault points to
does not specifically relate to any relationship or agreement between one of the
defendants and himself for a term of six months: (1) BellSouth’s leasing of
Kenner Yard for a two year term; (2) BellSouth’s agreement requiring Directional
to supply splicers for a period of at least one year; and (3) Parker’s subcontract
requiring Parker to supply splicers to Directional for at least one year. These
actions are consistent with having no agreement with any specific splicer. They
certainly do not even imply a contract with any specific splicer for a term of six
months. Next, Thibault argues that an email from the Directional vice president
that says splicer pay would remain the same for about 120 to 150 days (four to
five months) suggests a six month contract. This does not get Thibault to the six
month contract he seeks. An employer is free to ensure a group of employees that
their rate of pay would not decrease without committing itself to a contractual
relationship with each specific employee for a completely unrelated fixed term.
Thibault also points us to the length of other splicer’s employment: (1)
Chris Floyd’s employment lasted two years; and (2) Bill Peek’s testimony that
there would be at least six months of work. First, Floyd was an actual employee
of BellSouth who managed the construction project, not a splicer like Thibault.
Floyd’s agreement does not speak to any agreement between Thibault and any
defendant. Second, Peek was questioned about the length of the work:
“Q. And what did you talk – what did – what was talked about
during this meeting with [the Directional supervisor] about the
length of the job?
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No. 08-31226
A. Well, he said we had at least six months, and it was probably a
whole lot longer than that, but it would depend on our job quality
and – you know, just a pep talk to make everybody do good jobs if you
wanted to stay longer than six months, or whatever.”
Peek’s testimony does not show any objectively determinable end to the term of
employment. See Overman, 797 F.2d at 220. According to this testimony, the
end of the term could have been any time after six months. Finally, Peek
testified that the job specifically depended upon the quality of work by the
splicers. This testimony suggests that “[t]he time when [Thibault’s] services
would no longer be needed depended on a number of factors and, ultimately, on
the judgment of his supervisor.” Id.
Our review of the record does not demonstrate any evidence of the
existence of a fixed term either. Bill Peek handled all the communication with
Parker before arriving in New Orleans. Once in Louisiana, Thibault testified
that Dan Keener, a supervisor for Parker, and others, promised him that the
work would last “at least six months” guaranteed, but that the work would
“probably” take up to two years. Later in Thibault’s deposition, this exchange
occurred:
“Q. All right. You talked earlier about a guarantee of six months of
employment. Did anyone from Directional or BellSouth ever
guarantee to you six months of employment?
...
A. The question that I have is ‘guaranteed.’ We were told . . . we
were probably going to be there for two years. Did he guarantee it?
No. ‘Chances are we’re going to be here for a long time, fellows. I
mean, look at it.’
Q. That’s what he said?
A. Yeah, I mean, look at it. They’re still out there working.
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No. 08-31226
Q. All right. So it’s true no one from BellSouth guaranteed you six
months of employment; right?
A. Correct.
...
A. ‘Guarantee’ is the key word in that question.
Q. Well, did anyone from BellSouth promise you six months of work?
A. BellSouth and Directional said that we were going to be here for
a long time.”
Thibault’s testimony has the same problems that Peek’s testimony had in
establishing a fixed term of employment. Thibault himself had a problem with
the word “guarantee,” and could not testify that the defendants guaranteed
anything. According to Thibault, he was told about the length of the project, not
a specific promise or guarantee about the length of time he would be employed.
On this record, we do not find sufficient summary judgment evidence to sustain
a finding of a fixed term of employment for six months.
CONCLUSION
We affirm the judgment of the trial court because, first, Thibault was not
covered by the FLSA because there is no summary judgment evidence sufficient
to sustain a finding that he was an employee under the act and, second, there is
no summary judgment evidence sufficient to sustain a finding that Thibault had
a contract for a fixed term.
AFFIRMED.
15