Reinaldo Ramon Lamonica v. Safe Hurricane Shutters, Inc.

Case: 11-15743 Date Filed: 03/06/2013 Page: 1 of 40

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 11-15743
________________________

D.C. Docket No. 0:07-cv-61295-JIC

REINALDO RAMON LAMONICA,
AUGUSTIN MILAN,
ANGELES LAMONICA SOLER,
MARIO FELICIANO,
GUILLERMO ALBOREZ, et al.

Plaintiffs-Appellees,

versus

SAFE HURRICANE SHUTTERS, INC.,
a Florida corporation,
d.b.a. Advanced Hurricane Protection,
STEVE HEIDELBERGER,
FRANCIS MCCARROL,

Defendants-Appellants.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(March 6, 2013)
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Before BARKETT and PRYOR, Circuit Judges, and BATTEN, * District Judge.

BATTEN, District Judge:

This is an appeal from a judgment awarding unpaid wages and liquidated

damages under the Fair Labor Standards Act (“FLSA”). Appellees challenge the

judgment itself, as well as the district court’s denial of their post-trial motions

under Federal Rules of Civil Procedure 50(b) and 59(e). For the reasons that

follow, we affirm.

I. BACKGROUND

Mario Feliciano and Augustin Milan formerly installed hurricane shutters for

Safe Hurricane Shutters, Inc. In relation to that employment, they brought this

action along with seven of their former co-workers to recover unpaid overtime

wages under the FLSA. In addition to the corporate defendant, they sued its

president and CEO, Edward Leiva, and two of its directors, Steve Heidelberger and

Francis McCarroll. After trial, the jury found in favor of Feliciano and Milan and

against all of the defendants, awarding damages of $20,849.38 to Feliciano and

$1,312.50 to Milan. The district court subsequently determined that Feliciano and

Milan were entitled to liquidated damages in an amount equal to their actual

*Honorable Timothy C. Batten, Sr., United States District Court for the Northern District
of Georgia, sitting by designation.

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damages and entered final judgment in favor of Feliciano in the amount of

$41,698.76 and in favor of Milan in the amount of $2,625.00.

After the judgment was entered, Safe Hurricane Shutters, Heidelberger, and

McCarroll filed a renewed motion for judgment as a matter of law and alternative

motion for new trial under Federal Rule of Civil Procedure 50(b). They also filed

a motion to alter or amend the judgment under Rule 59(e). The district court

denied both motions. Safe Hurricane Shutters, Heidelberger, and McCarroll now

appeal the judgment, as well as the district court’s order denying their post-trial

motions.

II. DISCUSSION

The issues raised in this appeal require the application of several different

standards of review, each of which will be discussed in context below.

A. In Pari Delicto

First, Appellants argue that the district court should have granted their

motion for judgment as a matter of law based on the doctrine of in pari delicto,

which states that “a plaintiff who has participated in wrongdoing may not recover

damages resulting from the wrongdoing.” Official Comm. of Unsecured Creditors

of PSA, Inc. v. Edwards, 437 F.3d 1145, 1152 (11th Cir. 2006) (quoting BLACK’S

LAW DICTIONARY 794 (7th ed. 1999)). “We review a district court’s ruling on a

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motion for judgment as a matter of law de novo.” Hubbard v. BankAtlantic

Bancorp, Inc., 688 F.3d 713, 723 (11th Cir. 2012).

Appellants argue that both Feliciano and Milan participated in the

wrongdoing by failing to accurately report the income they earned from Safe

Hurricane Shutters to the IRS. They further argue that Milan participated in the

wrongdoing because he was an undocumented alien not authorized to work in the

United States, and he applied to work for Safe Hurricane Shutters using a false

Social Security number. 1 As a result, Appellants contend that Feliciano and Milan

should be barred from recovering under the FLSA.

We have previously held that undocumented aliens are “employees” who

may recover unpaid wages under the FLSA. Patel v. Quality Inn S., 846 F.2d 700,

706 (11th Cir. 1988). Appellants argue that the Supreme Court effectively

overruled Quality Inn in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.

137, 148–52 (2002). However,

[w]e are bound by the holdings of earlier panels unless and until they
are clearly overruled by this court en banc or by the Supreme Court.
While an intervening decision of the Supreme Court can overrule the
decision of a prior panel of our court, the Supreme Court decision
must be clearly on point.

1
Milan’s immigration status was not conclusively established at trial, but because we
find it irrelevant to his ability to recover under the FLSA, we will assume that he was indeed an
undocumented alien during the time he worked for Safe Hurricane Shutters.

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Randall v. Scott, 610 F.3d 701, 707 (11th Cir. 2010) (internal citations and

quotation marks omitted). For the reasons that follow, Hoffman is not clearly on

point and therefore did not overrule Quality Inn.

In Hoffman, the Supreme Court held that the NLRB cannot award backpay

to undocumented aliens who are terminated for union activity in violation of the

National Labor Relations Act (“NLRA”). However, the Court did not disturb its

prior holding that undocumented aliens “plainly come within the broad statutory

definition of ‘employee’” contained in the NLRA. Sure-Tan, Inc. v. NLRB, 467

U.S. 883, 892 (1984). Instead, the Court emphasized that it was merely limiting

the remedies available to undocumented aliens under the NLRA. See Hoffman,

535 U.S. at 152 (“Lack of authority to award backpay does not mean that the

employer gets off scot-free.”). In Quality Inn, we found the statutory definitions of

“employee” in the NLRA and FLSA to be analogous, and we drew upon Sure-

Tan’s analysis of the NLRA in concluding that undocumented aliens are also

“employees” under the FLSA. 846 F.2d at 702–03. Hoffman does nothing to cast

doubt on that portion of our holding.

Nor does Hoffman cast doubt on our holding that undocumented aliens may

recover their unpaid wages under the FLSA. The NLRA, which was at issue in

Hoffman, grants the NLRB “broad discretion to devise remedies that effectuate the

policies of the Act, subject only to limited judicial review.” Sure-Tan, 467 U.S. at

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898–99. This limited judicial review includes the authority to reject the NLRB’s

chosen remedy where it “trenches upon a federal statute or policy outside the

Board’s competence to administer.” Hoffman, 553 U.S. at 147. Hoffman was an

exercise of that judicial authority; the Court rejected the NLRB’s remedy on the

ground that it trenched upon the policies underlying the Immigration Reform and

Control Act of 1986 (“IRCA”).

In contrast, no administrative body or court is vested with discretion to

fashion an appropriate remedy under the FLSA. Instead, the Act unequivocally

provides that any employer who violates its minimum wage or overtime provisions

“shall be liable to the employee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime compensation, as the case may

be, and in an additional equal amount as liquidated damages.”2 29 U.S.C.

§ 216(b). Unlike the NLRA, there is nothing in the FLSA that would allow us to

conclude that undocumented aliens, although protected by the Act, are nevertheless

barred from recovering unpaid wages thereunder.

Moreover, Hoffman does not give us cause to reconsider whether the IRCA

was intended to amend the FLSA by implication, removing undocumented aliens

from its protection. Of course, Hoffman did not even go this far with respect to the

2
The court has discretion not to award liquidated damages if it finds that the defendant
acted in good faith. 29 U.S.C. § 260. However, unpaid wages must be awarded regardless of the
employer’s good faith.

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NLRA; it merely concluded that in light of the policies underlying the IRCA, an

award of backpay to an undocumented alien “lies beyond the bounds of the

Board’s remedial discretion.” 535 U.S. at 149. Even so, to give full consideration

to Appellants’ arguments, we will determine whether Hoffman’s reasoning

undermines our reasoning in Quality Inn. In doing so, we reemphasize that

“amendments by implication are disfavored. Only when Congress’ intent to repeal

or amend is clear and manifest will we conclude that a later act implicitly repeals

or amends an earlier one.” Quality Inn, 846 F.2d at 704.

In Hoffman, the Court concluded that awarding backpay to undocumented

aliens under the NLRA would be inconsistent with the IRCA, which “‘forcefully’

made combating the employment of illegal aliens central to ‘[t]he policy of

immigration law.’” 535 U.S. at 147 (quoting INS v. Nat’l Ctr. for Immigrants’

Rights, Inc., 502 U.S. 183, 194 & n.8 (1991)). The Court rejected the view that

Congress would have made it a crime for an alien to obtain employment with false

documents and “nonetheless intended to permit backpay where but for an

employer’s unfair labor practices, an alien-employee would have remained in the

United States illegally, and continued to work illegally, all the while successfully

evading apprehension by immigration authorities.” Id. at 149. The Court reasoned

that “awarding backpay in a case like this not only trivializes the immigration laws,

it also condones and encourages future violations.” Id. at 150.

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In contrast, an FLSA plaintiff “is not attempting to recover back pay for

being unlawfully deprived of a job” that he could never have lawfully performed.

Quality Inn, 846 F.2d at 705. “Rather, he simply seeks to recover unpaid

minimum wages and overtime for work already performed.” Id.

In such circumstances, the immigration law violation has already
occurred. The [award of unpaid wages] does not itself condone that
violation or continue it. It merely ensures that the employer does not
take advantage of the violation by availing himself of the benefit of
undocumented workers’ past labor without paying for it in accordance
with minimum FLSA standards.

Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 243 (2d Cir. 2006). Thus,

even after Hoffman, we maintain that “[b]y reducing the incentive to hire such

workers the FLSA’s coverage of undocumented aliens helps discourage illegal

immigration and is thus fully consistent with the objectives of the IRCA.” Quality

Inn, 846 F.2d at 704–05. In short, the IRCA does not express Congress’s clear and

manifest intent to exclude undocumented aliens from the protection of the FLSA.

For the foregoing reasons, Hoffman is not clearly on point and we are bound

to follow Quality Inn. Consequently, Milan’s ability to recover unpaid wages

under the FLSA does not depend on his immigration status. However, Appellants

argue that the in pari delicto doctrine still bars his recovery because in addition to

being an undocumented alien, he applied to work for Safe Hurricane Shutters using

a false Social Security number. They further argue that the in pari delicto doctrine

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bars both Feliciano and Milan from recovering under the FLSA because they failed

to accurately report their income to the IRS.

The in pari delicto defense may be applied to bar recovery under a federal

statute only where (1) the plaintiff bears at least substantially equal responsibility

for the violations he seeks to redress, and (2) preclusion of the suit would not

substantially interfere with the statute’s policy goals. See Bateman Eichler, Hill

Richards, Inc. v. Berner, 472 U.S. 299, 310–11 (1985); Edwards, 437 F.3d at

1154–55. “The first prong of this test captures the essential elements of the classic

in pari delicto doctrine.” Pinter v. Dahl, 486 U.S. 622, 633 (1988). The second

“embodies the doctrine’s traditional requirement that public policy implications be

carefully considered before the defense is allowed” and “ensures that the broad

judge-made law does not undermine the congressional policy favoring private suits

as an important mode of enforcing federal . . . statutes.” Id. Because we conclude

that the first prong is not satisfied in this case, we need not determine whether the

in pari delicto doctrine is consistent with the policies underlying the FLSA, such

that it may ever be applied to bar recovery under that statute.

In order to satisfy the first prong of the Bateman Eichler test, “[t]he plaintiff

must be an active, voluntary participant in the unlawful activity that is the subject

of the suit.” Id. at 636 (emphasis added). “Plaintiffs who are truly in pari delicto

are those who have themselves violated the law in cooperation with the defendant.”

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Id. (emphasis added) (quoting Perma Life Mufflers, Inc. v. Int’l Parts Corp., 392

U.S. 134, 153 (1968)). In this case, neither Feliciano nor Milan cooperated with

Appellants in violating the FLSA.

Appellants argue that Milan’s recovery should be barred because he would

not have been hired absent his use of a false Social Security number. They further

argue that both Feliciano’s and Milan’s recoveries should be barred because their

tax violations are “connected with the matter in litigation.” However, both of these

arguments misstate the test to be applied under Bateman Eichler. Not just any

causal relationship or topical connection will do. “The plaintiff must be an active,

voluntary participant in the unlawful activity that is the subject of the suit.” Id. at

636 (emphasis added). Appellants cannot satisfy that test because Feliciano and

Milan did not participate in Appellants’ decision whether to pay them overtime

wages in accordance with the FLSA. Therefore, the district court was correct to

deny Appellants’ motion for judgment as a matter of law based on the in pari

delicto doctrine.

B. Jury Instructions

Next, Appellants argue that two portions of the district court’s jury

instructions require a new trial. First, Heidelberger and McCarroll contend that the

district court gave erroneous instructions on the issue of their individual liability.

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Second, all Appellants argue that the district court erred in failing to instruct the

jury on the fluctuating workweek method of calculating damages.

“We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the objecting party, but the district court

is given wide discretion as to the style and wording employed in the instructions.”

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir. 2008) (internal

citations omitted). “We review only for an abuse of discretion a district court’s

refusal to give a requested jury instruction.” Pensacola Motor Sales Inc. v. E.

Shore Toyota, LLC, 684 F.3d 1211, 1224 (11th Cir. 2012). “In refusing to give a

requested jury instruction, ‘[a]n abuse of discretion is committed only when (1) the

requested instruction correctly stated the law, (2) the instruction dealt with an issue

properly before the jury, and (3) the failure to give the instruction resulted in

prejudicial harm to the requesting party.’” Id. (quoting Burchfield v. CSX Transp.,

Inc., 636 F.3d 1330, 1333–34 (11th Cir. 2011)).

1. Individual Liability

The FLSA creates a private right of action against any “employer” who

violates its minimum-wage or overtime provisions. 29 U.S.C. § 216(b). The Act

defines the term “employer” broadly to include “both the employer for whom the

employee directly works as well as ‘any person acting directly or indirectly in the

interests of an employer in relation to an employee.’” Josendis v. Wall to Wall

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Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011) (quoting 29 U.S.C.

§ 203(d)). Based on this broad definition, we have joined the “overwhelming

weight of authority” and held that “a corporate officer with operational control of a

corporation’s covered enterprise is an employer along with the corporation, jointly

and severally liable under the FLSA for unpaid wages.” Patel v. Wargo, 803 F.2d

632, 637–38 (11th Cir. 1986) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511

(1st Cir. 1983)). In this appeal, we must determine whether corporate supervisors

other than officers may be personally liable under the FLSA, and we must clarify

the degree and type of operational control that will support individual liability.

Heidelberger and McCarroll argue that the district court’s jury instructions

on individual liability require a new trial for three reasons. First, they argue that

the district court should have instructed the jury that personal liability under the

FLSA is limited to officers. Second, they argue that the district court should have

instructed the jury that “any control over an employee in determining individual

liability is limited to control over the employee-plaintiff, or individuals in his same

position.” Third, they argue that the district court erred by instructing the jury that

even occasional operational control can support individual liability.

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We will consider only the first issue (non-officer liability) in our review of

the district court’s jury instructions.3 The record does not reflect that Heidelberger

or McCarroll ever proposed an instruction that “any control over an employee in

determining individual liability is limited to control over the employee-plaintiff, or

individuals in his same position.” Therefore, the district court did not abuse its

discretion in failing to give such an instruction. Also, the district court did not

actually instruct the jury that occasional control can support individual liability. 4

Therefore, we need not consider whether such an instruction would have been

erroneous.

In arguing that only officers may be held personally liable under the FLSA,

Heidelberger and McCarroll rely on Wargo’s holding that “a corporate officer with

operational control of a corporation’s covered enterprise is an employer along with

the corporation, jointly and severally liable under the FLSA for unpaid wages.” Id.

(quoting Agnew, 712 F.2d at 1511). But while it recognized personal liability for

officers, Wargo did not purport to limit personal liability to officers, and the Act’s

broad definition of “employer” does not admit of such a limitation. As we have

3
The other two issues will be considered below in the context of Appellants’ challenges
to the sufficiency of the evidence.
4
The district court removed the following sentence from the plaintiffs’ proposed
instruction on individual liability: “Liability may also be found even if control is restricted or
exercised only occasionally as such does not diminish the significance of the existence of such
control.” Trial Tr. vol. 5, 138–39, Apr. 15, 2011.

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previously stated, whether an individual fits that definition “does not depend on

technical or isolated factors but rather on the circumstances of the whole activity.”

Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th

Cir. 2008) (quoting Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235,

237 (5th Cir. 1973)) (internal quotation marks omitted). In the typical case, a

corporation’s officers will exercise more operational control than its directors and

therefore be more susceptible to personal liability. However, usual corporate roles

are not always observed, and some directors may assume more operational control

than some officers. Therefore, a supervisor’s title does not in itself establish or

preclude his or her liability under the FLSA, and the district court was correct in

refusing to instruct the jury to the contrary.

2. Fluctuating Workweek Method

Appellants also take issue with the district court’s jury instructions on the

issue of damages. The FLSA requires that employers compensate their employees

for overtime hours “at a rate not less than one and one-half times the regular rate at

which [they are] employed.” 29 U.S.C. § 207(a)(1). If the employer fails to do so,

it will be liable to the employees for their “unpaid overtime compensation.” Id.

§ 216(b). The Act does not define the employee’s “regular rate.” However, in the

case of an employee who is paid a constant weekly salary for fluctuating hours, the

Supreme Court has found it acceptable to calculate the regular rate by dividing that

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weekly salary by the number of hours actually worked. Overnight Motor Transp.

Co. v. Missel, 316 U.S. 572, 580 (1942). This has come to be known as the

“fluctuating workweek method.”

After Missel was decided, the Department of Labor (“DOL”) promulgated

29 C.F.R. § 778.114, an interpretive rule setting forth the fluctuating workweek

method. Subsection (a) of the rule explains that where the fluctuating workweek

method is used to calculate the employee’s regular rate of pay, “[p]ayment for

overtime hours at one-half such rate in addition to the salary satisfies the overtime

pay requirement because such hours have already been compensated at the straight

time regular rate, under the salary arrangement.”

The DOL’s interpretive rule “sets forth one way in which an employer may

lawfully compensate a nonexempt employee for fluctuating work hours; it is not a

remedial measure that specifies how damages are to be calculated when a court

finds that an employer has breached its statutory obligations.” Urnikis-Negro v.

Am. Family Prop. Servs., 616 F.3d 665, 666 (7th Cir. 2010). However, under

Missel, the fluctuating workweek method may be used to calculate an employee’s

regular rate of pay and corresponding overtime premium for use in determining

damages under the FLSA. Id. Appellants contend that the district court erred in

failing to instruct the jury on the fluctuating workweek method for calculating

damages in this case.

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As an initial matter, we reject Feliciano and Milan’s argument that

Appellants waived the application of the fluctuating workweek method by failing

to plead it as an affirmative defense. The fluctuating workweek method is merely

“one method of complying with the overtime payment requirements of 29 U.S.C.

§ 207(a)(1). It is not an exemption to it.” Samson v. Apollo Res., Inc., 242 F.3d

629, 636 (5th Cir. 2001). Consequently, the fluctuating workweek method is not

an affirmative defense; rather, “the employee bears the burden of proving that the

employer failed to properly administer [it].” Id. As a result, we will consider

Appellants’ arguments on this issue.

However, the fluctuating workweek method is not the only or even the

default method for calculating damages when an employee is paid a weekly salary.

In fact, it is conceptually subsumed within the broader rule that “[i]f the employee

is employed solely on a weekly salary basis, the regular hourly rate of pay, on

which time and a half must be paid, is computed by dividing the salary by the

number of hours which the salary is intended to compensate.” 29 C.F.R.

§ 778.113(a). We have previously deferred to this DOL interpretation of an

employee’s “regular rate” of pay under the FLSA. Rodriguez v. Farm Stores

Grocery, Inc., 518 F.3d 1259, 1268 n.5 (11th Cir. 2008). Consequently, “where

the employee is paid solely on a weekly salary basis, the number of hours the

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employee’s pay is intended to compensate—not necessarily the number of hours he

actually works—is the divisor.” Id. at 1269.

The district court properly instructed the jury to calculate Appellees’ regular

rates of pay using the number of hours their salaries were intended to compensate.

Based on this instruction, the jury could have determined that Appellees’ salaries

were intended to compensate all hours worked and calculated their regular rates of

pay accordingly. The district court further instructed the jury that “[t]he measure

of damages is the difference between what the employee should have been paid

under the act and the amounts that you find were actually paid.” Thus, if the jury

determined that Appellees’ salaries were intended to compensate all hours worked,

it should have determined that they were already partially compensated for their

overtime hours at their regular rate of pay and merely awarded an overtime

premium at half that rate. This is, in effect, an application of the fluctuating

workweek method.

Because the jury instructions actually given allowed the jury to effectively

apply the fluctuating workweek method, we cannot conclude that Appellants were

prejudiced by the refusal to give more specific instructions. See Goulah v. Ford

Motor Co., 118 F.3d 1478, 1485 (11th Cir. 1997) (“The district court’s refusal to

give requested instructions is not error if the substance of the proposed instruction

was covered by another instruction, which was given.”). While we would not

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adopt the district court’s instructions as a model, and more specificity is preferable,

we hold that the district court did not abuse its discretion in refusing to give

Appellants’ proposed instruction on the fluctuating workweek method.

C. Sufficiency of the Evidence

Next, Appellants argue that the district court should have granted their

renewed motion for judgment as a matter of law or alternative motion for a new

trial based on insufficiency of the evidence, and they raise three evidentiary issues.

First, Heidelberger and McCarroll argue that the evidence was insufficient to hold

them individually liable under the FLSA. Second, all Appellants argue that the

evidence was insufficient for the jury to refuse to apply the fluctuating workweek

method. Third, all Appellants argue that there was insufficient evidence of

Feliciano’s and Milan’s overtime hours to support the jury’s verdict.

“We review de novo the denial of a motion for judgment as a matter of law,

which necessarily means that we apply the same standard as the district court.”

Pensacola Motor Sales, 684 F.3d at 1226. Judgment as a matter of law is

appropriate where “a reasonable jury would not have a legally sufficient

evidentiary basis to find” for the nonmoving party on a controlling issue. FED R.

CIV. P. 50(a)(1). Consequently, “[w]e will reverse only if the facts and inferences

point overwhelmingly in favor of [the moving] party, such that reasonable people

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could not arrive at a contrary verdict.” Ash v. Tyson Foods, Inc., 664 F.3d 883,

892 (11th Cir. 2011) (quoting Goldsmith, 513 F.3d at 1275).

In conducting our review, “[w]e do not make credibility determinations or

weigh the evidence.” Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 724

(11th Cir. 2012). Instead, “we consider all the evidence, and the inferences drawn

therefrom, in the light most favorable to the nonmoving party.” Pensacola Motor

Sales, 684 F.3d at 1226. We will “give credence to . . . that evidence supporting

the moving party that is uncontradicted and unimpeached, at least to the extent that

[it] comes from disinterested witnesses”; however, we will “disregard all evidence

favorable to the moving party that the jury is not required to believe.” Mee Indus.

v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 2010) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000)).

“We review a district court’s denial of a motion for a new trial for an abuse

of discretion.” St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d

1186, 1200 n.16 (11th Cir. 2009). “[N]ew trials should not be granted on

evidentiary grounds unless, at a minimum, the verdict is against the great—not

merely the greater—weight of the evidence.” Id. (quoting Lipphardt v. Durango

Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)).

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1. Individual Liability

Heidelberger and McCarroll argue that the district court should have granted

their Rule 50 motion on the issue of individual liability for two reasons. First, they

contend that they cannot be held personally liable because they were not officers of

Safe Hurricane Shutters but merely “minority shareholders at the director level.” 5

As discussed above, this argument is meritless because non-officers may be held

personally liable under the FLSA. Second, they argue that they did not exercise

sufficient operational control to be held personally liable under the FLSA. In

resolving this latter issue, we must clarify the degree and type of operational

control that will support individual liability under the FLSA.

We recognize along with the First Circuit that “individuals ordinarily are

shielded from personal liability when they do business in a corporate form, and

that it should not lightly be inferred that Congress intended to disregard this shield

in the context of the FLSA.” Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668,

677 (1st Cir. 1998). However, the FLSA contemplates at least some individual

liability, and it is consistent with Congress’s intent to impose liability upon those

who “control[] a corporation’s financial affairs and can cause the corporation to

compensate (or not to compensate) employees in accordance with the FLSA.” Id.

5
There was some evidence that McCarroll held himself out as the vice-president of Safe
Hurricane Shutters, but for purposes of this appeal, we will assume that he was merely a
shareholder and a director.

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at 678. A supervisor’s ownership interest in the corporation and control over the

corporation’s day-to-day functions are relevant to this inquiry because they are

indicative of the supervisor’s role in causing the violation. Id.

In this case, Heidelberger and McCarroll testified that they each owned

about 22.5 percent of Safe Hurricane Shutters and that their co-defendant, Edward

Leiva, owned the same amount. McCarroll testified that the remaining shares were

owned by three individuals, each of whom owned smaller percentages than Leiva,

Heidelberger, and himself. The fact that Heidelberger and McCarroll each owned

a substantial percentage of the corporation suggests that they had control over its

financial affairs and supports a finding of personal liability. However,

Heidelberger and McCarroll argue that they were in fact absentee owners who did

not exercise such control.

Our prior decisions addressing operational control have held that in order to

qualify as an employer under the FLSA, a supervisor “must either be involved in

the day-to-day operation or have some direct responsibility for the supervision of

the employee.” Alvarez Perez, 515 F.3d at 1160 (quoting Wargo, 803 F.2d at

638). Heidelberger and McCarroll rely on this language to argue that the law is

more favorable to their side than it really is.

First, they contend that “any control over an employee in determining

individual liability is limited to control over the employee-plaintiff, or individuals

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in his same position.” We agree that relevant control for purposes of individual

liability is control in relation to the employee-plaintiff. However, such control

need not be proved directly. For example, the jury may infer such control from the

exercise of general supervisory powers or the exercise of control over other

employees. Thus, Heidelberger and McCarroll’s argument represents an

incomplete statement of the law.

Next, Heidelberger and McCarroll argue that they could not have been

involved in the “day-to-day” operations of Safe Hurricane Shutters because they

were not there every day. Of course, one can be involved in “day-to-day” (i.e.,

regular) operations on an intermittent basis. Thus, Heidelberger and McCarroll’s

argument fails semantically. But more importantly, it misses the point

substantively. Again, our primary concern is the supervisor’s role in causing the

FLSA violation, and it is possible for a supervisor to exercise enough control to

play a substantial role in causing the violation while working only part-time. In

short, the fact that control was exercised only occasionally “does not diminish the

significance of its existence.” Donovan v. Janitorial Servs., Inc., 672 F.2d 528,

531 (5th Cir. 1982).

However, to support individual liability, there must be control over

“significant aspects of [the company’s] day-to-day functions, including

compensation of employees or other matters in relation to an employee.” Alvarez

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Perez, 515 F.3d at 1160 (quoting Wargo, 803 F.2d at 638). In other words, while

control need not be continuous, it must be both substantial and related to the

company’s FLSA obligations.

With these principles in mind, we turn to the facts of this case. Viewed in

the light most favorable to the plaintiffs, McCarroll was present at Safe Hurricane

Shutters about two weeks per month and Heidelberger was present at least a few

days but not more than one week per month. Both visited job sites to observe the

progress of shutter installations, and McCarroll routinely distributed work orders to

installers, describing the work they were required to complete that day. When the

company started to struggle financially, Heidelberger, McCarroll and Leiva met

with the installers to tell them that the company would be unable to pay them.

Moreover, both Heidelberger and McCarroll promised installers that they would

try to fix the problem so that the installers would eventually get paid. Heidelberger

even used $20,000 of his own funds to satisfy the company’s payroll obligations.

Although Heidelberger and McCarroll testified that they exercised less

control than that described above, the jury was not required to believe them. And

although it is undisputed that Leiva exercised more control than either of them, that

does not diminish the significance of their control. McCarroll was present about

half the time and had substantial supervisory powers in relation to installers.

While Heidelberger was present less often, he exercised direct control over

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whether installers got paid by using his own funds for that purpose. Moreover,

both Heidelberger and McCarroll met with installers to discuss payroll issues.

Based on these facts, a reasonable jury could have found that Heidelberger

and McCarroll exercised control over “significant aspects of [the company’s] day-

to-day functions, including compensation of employees or other matters in relation

to an employee.” Id. (quoting Wargo, 803 F.2d at 638). When combined with

their substantial ownership interests, this suggests that Heidelberger and McCarroll

had sufficient control of the company’s financial affairs to “cause the corporation

to compensate (or not to compensate) employees in accordance with the FLSA.”

Baystate, 163 F.3d at 678. Therefore, the jury had a legally sufficient basis to hold

Heidelberger and McCarroll individually liable, and its verdict was not against the

great weight of the evidence. The district court did not err in denying Heidelberger

and McCarroll’s Rule 50 motion on this ground.

2. Fluctuating Workweek Method

Appellants argue that the district court should have granted their Rule 50

motion on the applicability of the fluctuating workweek method. However, there

was sufficient evidence for the jury to find that the weekly salaries Safe Hurricane

Shutters paid Feliciano and Milan were intended to compensate them for only forty

hours of work. Feliciano and two other former installers testified that Leiva agreed

to pay them a weekly salary for forty hours of work, and although Milan testified

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that he did not know how many hours his weekly pay was intended to compensate,

there was no reason to believe that his compensation was structured differently.

Under these circumstances, we cannot say that the evidence points overwhelmingly

in favor of Appellants or that the jury’s verdict was against the great weight of the

evidence. Therefore, the district court was correct to deny Appellants’ Rule 50

motion on the fluctuating workweek method.

3. Overtime Hours

Appellants argue that the district court should have granted their Rule 50

motion because the evidence of Feliciano’s and Milan’s overtime hours was

insufficient to support the jury’s verdict. The FLSA places upon the employee-

plaintiff “the burden of proving that he performed work for which he was not

properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

686–87 (1946). However, if the employer failed to keep time records, as in this

case, that burden is relaxed. Specifically, in that circumstance

an employee has carried out his burden if he proves that he has in fact
performed work for which he was improperly compensated and if he
produces sufficient evidence to show the amount and extent of that
work as a matter of just and reasonable inference. The burden then
shifts to the employer to come forward with evidence of the precise
amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s
evidence. If the employer fails to produce such evidence, the court
may then award damages to the employee, even though the result be
only approximate.

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Id. at 687–88. In this case, there was sufficient testimony regarding the hours

Feliciano and Milan regularly worked to allow the jury to approximate the hours

they actually worked in each week for which they sought to recover unpaid wages.

In other words, there was sufficient testimony “to show the amount and extent of

that work as a matter of just and reasonable inference.” Id. at 687. Appellants did

not negate the reasonableness of that inference as a matter of law; therefore, the

district court did not err in denying Appellants’ renewed motion for judgment as a

matter of law. Nor can we say that the jury’s verdict was against the great weight

of the evidence such that the district court abused its discretion in denying

Appellants’ alternative motion for a new trial.

D. Evidentiary Ruling

Appellants argue that they are entitled to a new trial because the district

court erroneously excluded testimony by Leiva regarding a conversation he had

with Rolando Ibacache. Ibacache was an installer at Safe Hurricane Shutters who

was represented by the same law firm as Feliciano and Milan in a related FLSA

action against Appellants. He was also a witness in this case. Allegedly, Ibacache

told Leiva that one of the attorneys who represented the plaintiffs in both cases

fabricated the overtime claims against Appellants.

During cross-examination of Ibacache in this case, Appellants’ counsel

asked the following: “You told Mr. Leiva that the attorney said oh, let’s say you

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worked all these hours and we’ll get all these people involved and we’ll say that

there was a big overtime violation here when there really wasn’t one. That’s what

you told Mr. Leiva.” The district court overruled plaintiffs’ counsel’s hearsay

objection, then Ibacache responded, “I don’t remember. Maybe it is here, but I

don’t remember.” 6 Appellants’ counsel then asked, “You might have said that.

You don’t recall. That rings a bell. You might have said something like that. You

can’t deny it?” Ibacache responded, “I said I did not remember.”

Three days later, Leiva testified, and Appellants’ counsel asked him, “What

did Mr. Ibacache tell you about the overtime lawsuit, how that got started?”

However, the district court sustained plaintiffs’ counsel’s hearsay objection, and

Leiva was not permitted to answer. In response, Appellants’ counsel requested a

sidebar conference, but that request was denied. Appellants represent that if their

request for a sidebar conference had been granted, they would have proffered

Leiva’s testimony regarding his conversation with Ibacache, i.e., that Ibacache told

him than an attorney fabricated the overtime claims against Appellants.

As an initial matter, Feliciano and Milan argue that Appellants have not

preserved this issue for appeal because they failed to raise it in their pre-verdict

motion for judgment as a matter of law under Federal Rule of Civil Procedure

6
Appellants’ counsel had been using Ibacache’s deposition to impeach him. Presumably,
when Ibacache said, “Maybe it is here,” he was referring to his deposition transcript.

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50(a). That argument might have merit if the issue Appellants failed to raise in

their pre-verdict motion was a challenge to the sufficiency of the evidence. 7

However, “[i]f there have been errors at the trial, duly objected to, dealing with

matters other than the sufficiency of the evidence, they may be raised on appeal

from the judgment even though there has not been either a renewed motion for

judgment as a matter of law or a motion for a new trial.” 9B CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2540 (3d

ed. 2008), available at Westlaw FPP.

In order to challenge a ruling excluding evidence, a party simply must

“inform[] the court of its substance by an offer of proof, unless the substance was

apparent from the context.” FED. R. EVID. 103(a)(2). “Once the court rules

definitively on the record—either before or at trial—a party need not renew an . . .

offer of proof to preserve a claim of error for appeal.” FED. R. EVID. 103(b).

In this case, the substance of Leiva’s proffered testimony was obvious from

its context. Ibacache had already been questioned about his alleged conversation

with Leiva, and the question Appellants’ counsel posed to Leiva was obviously

7
In that circumstance, the scope of our review would be limited to plain error. Howard
v. Walgreen Co., 605 F.3d 1239, 1243 (11th Cir. 2010). Appellants do argue that in the
alternative to a new trial, the district court’s erroneous evidentiary ruling entitles them to
judgment as a matter of law. This might be construed as an argument that if Leiva’s testimony
had been admitted, the jury would have lacked a legally sufficient evidentiary basis to find for
the plaintiffs. However, even assuming Leiva’s testimony should have been admitted, such an
argument would be meritless because the jury would not have been required to believe it.

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directed at that same conversation. No doubt the district court denied Appellants’

request for a sidebar conference because it already knew the substance of the

proffered testimony. Therefore, as soon as the district court made a definitive

ruling by sustaining the hearsay objection, the issue was preserved for appeal. We

now turn to our substantive review of that ruling.

We have often stated generally that evidentiary rulings are reviewed for

abuse of discretion. See, e.g., United States v. Dortch, 696 F.3d 1104, 1110 (11th

Cir. 2012). However, things are not always so simple. While evidentiary rulings

often require an exercise of discretion that calls for this standard of review, they

may also require legal and factual determinations that call for different standards.

Specifically, “[t]he factual findings underlying [evidentiary] rulings are reviewed

for clear error.” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012).

And questions of law underlying evidentiary rulings are reviewed de novo. See

United States v. Westry, 524 F.3d 1198, 1215 (11th Cir. 2008) (“[A] determination

of whether a statement is against the declarant’s penal interest is purely a question

of law subject to de novo review.”); cf. United States v. Henderson, 409 F.3d 1293,

1297 (11th Cir. 2005) (“[B]asing an evidentiary ruling on an erroneous view of the

law constitutes an abuse of discretion per se.”).

In this case, Appellants argue that Leiva’s testimony should have been

admitted under the statement-against-interest hearsay exception found in Federal

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Rule of Evidence 804(b)(3). For that exception to apply, Ibacache must have been

unavailable as a witness under Rule 804(a). Whether a declarant is unavailable as

a witness under Rule 804(a) is a question of law that we review de novo. In so

doing, we note that “[t]he burden of proving the unavailability of a witness under

Rule 804(a) rests with the proponent of the hearsay evidence.” United States v.

Acosta, 769 F.2d 721, 723 (11th Cir. 1985).

A declarant is considered unavailable as a witness if, among other things, the

declarant “testifies to not remembering the subject matter.” FED. R. EVID.

804(a)(3). Appellants contend that Ibacache was unavailable because he testified

that he did not remember his conversation with Leiva. However, Rule 804(a)(3)

applies only if the declarant is unable to remember the “subject matter,” i.e., if “he

has no memory of the events to which his hearsay statements relate.” N. Miss.

Commc’ns, Inc. v. Jones, 792 F.2d 1330, 1336 (5th Cir. 1986). The fact that the

witness does not remember making the statements themselves is irrelevant. 5

CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 8:112

(3d ed. 2007), available at Westlaw FEDEV. Appellants have failed to identify,

and we have not found, any testimony by Ibacache in which he claimed not to

remember the subject matter of his alleged conversation with Leiva, i.e., whether

the overtime claims were actually fabricated. Instead, Ibacache consistently

maintained that he and the other installers worked overtime hours for which they

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were not compensated. Therefore, Appellants failed to satisfy their burden of

showing that Ibacache was unavailable as a witness, and the district court did not

err by excluding Leiva’s testimony as hearsay.

E. Payroll Tax Withholding

Finally, Appellants contend that the district court should have granted their

motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e)

in order to exclude the amounts they are required to withhold for payroll taxes.

“We review the denial of a motion to alter or amend a judgment under Rule 59(e)

for abuse of discretion.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d

1337, 1341 (11th Cir. 2007).

We find no abuse of discretion in the district court’s approach because

Appellants can satisfy the judgment and comply with their withholding obligations

without incurring duplicative liability. Any withholding payments they make to

the IRS or state tax authorities on Appellees’ behalf will work toward satisfaction

of the judgment. And once the judgment has been satisfied, in part through such

payments and in part through payments to Appellees, Appellants may move for

relief from the judgment under Federal Rule of Civil Procedure 60(b)(5) to ensure

no further liability to Appellees.

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III. CONCLUSION

We AFFIRM the judgment below, as well as the district court’s denial of

Appellants’ post-trial motions under Federal Rules of Civil Procedure 50(b) and

59(e).

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PRYOR, Circuit Judge, concurring in part and dissenting in part:

I concur in the resolution by the majority opinion of some of the issues

raised in this appeal. I concur in the denial of a judgment as a matter of law in

favor of Francis McCarroll and Safe Hurricane Shutters, Inc., under the in pari

delicto doctrine and based on the sufficiency of the evidence. I also concur in the

denial of a judgment as a matter of law in favor of McCarroll on the issue of

individual liability as an employer under the Fair Labor Standards Act. And I

concur in the resolution of the evidentiary issues addressed in the majority opinion.

But I respectfully dissent from the resolution of the appeal for two reasons.

First, the district court abused its discretion when it refused to instruct the jury

about the fluctuating workweek. Second, the district court erred when it concluded

that, based on the evidence presented at trial, a reasonable jury could find sufficient

facts to render Steve Heidelberger liable as an employer within the meaning of the

Act. I would reverse and remand for a new trial with respect to McCarroll and

Safe Hurricane Shutters, and grant a judgment as a matter of law in favor of

Heidelberger.

A. The District Court Abused Its Discretion When It Refused to Instruct the
Jury About the Fluctuating Workweek Method.

The majority opinion concludes that the district court did not abuse its

discretion when it refused to instruct the jury on the fluctuating workweek method,

but I disagree. A refusal to give a jury instruction will amount to an abuse of

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discretion when “(1) the requested instruction correctly stated the law, (2) the

instruction dealt with an issue properly before the jury, and (3) the failure to give

the instruction resulted in prejudicial harm to the requesting party.” Pensacola

Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1224 (11th Cir. 2012).

The defendants have established each of these elements.

The requested jury instruction provides an accurate statement of the law on

the fluctuating workweek. The defendants requested a jury instruction that

explained the difference between the time-and-a-half method and the fluctuating

workweek method as follows:

The Act requires an employer to pay its employees at a rate of at least
one and one-half times their “regular rate” for time worked in any one
work week over 40 hours. This is commonly known as time-and-a-
half pay for “overtime” work. The employee’s “regular rate” is
simply the employee’s hourly rate, for those employees compensated
by way of an hourly rate. All overtime hours worked must be
compensated at one and one-half times the regular rate if an employee
is being paid hourly.

If you determine that Plaintiffs were paid a salary then the FLSA
considers the Plaintiffs to have been paid for all hours worked at a
straight time rate, and only an additional halftime is owed for
overtime hours, not one and one-half their regular rates. This can be
demonstrated as follows: If you find a plaintiff worked 50 hours per
week and was paid $500, his hourly rate is $10.00/hr ($500 ÷ 50 =
$10/hr) and his half-time rate is $5 ($10/hr [x] .5 = $5/hr). Thus, if
you found that such a plaintiff worked overtime one week, you would
award him $50 ($5/hr x 10/hrs).

This instruction is consistent with the interpretive rule promulgated by the

Department of Labor. See 29 C.F.R. § 778.114(a). According to that rule, the

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calculation of overtime under the fluctuating workweek method differs from the

traditional time-and-a-half calculation in two ways: (1) “the regular rate of the

employee will vary from week to week and is determined by dividing the number

of hours worked in the workweek into the amount of the salary to obtain the

applicable hourly rate for the week,” and (2) “[p]ayment for overtime hours at one-

half [of the regular] rate in addition to the salary satisfies the overtime pay

requirement.” Id. The requested instruction was a correct statement of the law,

and the majority opinion does not suggest otherwise.

The record also supports the potential application of the fluctuating

workweek method. The fluctuating workweek method applies “[w]here there is a

clear mutual understanding of the parties that the fixed salary is compensation

(apart from overtime premiums) for the hours worked each workweek, whatever

their number.” Id. Mario Feliciano testified that his hours varied each week, but

that he received the same salary each week, no matter how many hours he worked.

And the defendants introduced Feliciano’s letter of employment, which said that

Feliciano earned $800 per week, not $800 for the first 40 hours he worked each

week. Augustin Milan testified that “there was a clear and mutual understanding

between [him] and the company that when [he] would work each week no matter

how many hours [he] worked [he] would get that same amount of pay.” Because

the shutter installers could not be salaried employees who are ineligible for

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overtime, an agreement of this sort would evidence a fluctuating workweek

agreement, and the majority opinion does not suggest otherwise.

The failure to give the instruction on the fluctuating workweek method

prejudiced the defendants. The district court not only refused to give any jury

instruction that described the fluctuating workweek method, but it repeatedly

instructed the jury as follows that, if the employees proved that they had worked

more than 40 hours per week, the employees would be owed time-and-a-half:

This case arises under the Fair Labor Standards Act, the [f]ederal law
that among other things provides for the payment of time-and-a-half
overtime pay. The plaintiffs claim that the defendants did not pay
them the overtime pay required by law.

The plaintiffs, in fact, claimed that they were not paid overtime or
straight time or, in other words, they were only paid for the first 40
hours they worked each week and were not paid at all for the hours
they worked in addition to 40 hours.

Therefore, the term overtime in this case includes such overtime–
includes both–such overtime and straight time.

...

The [A]ct requires an employer to pay its employee at a rate of at least
one-and-a-half times their regular rate for the time worked in one
week over 40 hours. This is commonly known as time-and-a-half pay
for overtime worked.

The employee’s regular rate during a particular week is the basis for
calculating any overtime pay due him for that week. The regular rate
for a week is determined by dividing the first 40 hours worked into
the total wages paid for those 40 hours. The overtime rate then would
be one-and-a-half of that rate and would be owing for each hour in
excess of 40 hours worked during the workweek.

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...

If the employee is employed solely on a weekly salary basis, his
regular hourly rate of pay on which time-and-a-half hours must be
paid is computed by dividing the salary by the number of hours which
the salary is intended to compensate. For example, if an employee is
hired at a salary of $220.80 for a 40-hour week, his regular rate is
$5.52 an hour.

The majority opinion contends that the jury instructions adequately

instructed the jury about the fluctuating workweek method, but that contention

fails for two reasons. First, the majority opinion alleges that “[t]he district court

properly instructed the jury to calculate Appellees’ regular rates of pay using the

number of hours their salaries were intended to compensate,” Majority Opinion at

17, but the majority opinion fails to quote the relevant jury instruction. The

instruction required the jury to award only time-and-a-half on the regular rate: “If

the employee is employed solely on a weekly salary basis, his regular hourly rate

of pay on which time-and-a-half hours must be paid is computed by dividing the

salary by the number of hours which the salary is intended to compensate.” That

instruction is fundamentally inconsistent with the application of the fluctuating

workweek method, under which only half-time is owed. Second, the majority

opinion suggests that the vague instruction that “[t]he measure of damages is the

difference between what the employee should have been paid under the act and the

amounts that you find were actually paid” satisfactorily instructed the jury about

the fluctuating workweek method, id., but that instruction neither informed the jury

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of the existence of the fluctuating workweek method nor informed the jury how to

calculate it. Because the jury was never informed that the employees might be

owed only half-time, the defendants were prejudiced by the jury instructions, and

the district court abused its discretion when it refused to instruct the jury about the

fluctuating workweek method.

B. Heidelberger Is Not an Employer Within the Meaning of the Act.

The majority opinion also erroneously concludes that the evidence

establishes a legally sufficient basis to hold Heidelberger liable as an employer

under the Act. Id. at 24. A director of a company will be held liable as an

employer under the Act only if he “ha[s] operational control of significant aspects

of [the company’s] day-to-day functions, including compensation of employees or

other matters in relation to an employee.” See Alvarez Perez v. Sanford-Orlando

Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (internal quotation marks

omitted). The majority opinion concludes that Heidelberger meets this standard

because he: (1) was present at Safe Hurricane Shutters at least a few days but not

more than one week per month; (2) visited job sites to observe the progress of

shutter installations during some of those visits; (3) met with installers toward the

end of the life of the business to tell the installers that the company would not be

able to pay them on time; and (4) used $20,000 of his own funds to satisfy the

payroll obligations. Majority Opinion at 23. But these isolated incidents do not

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establish the day-to-day operational control of the business required by our

precedents.

The testimony of the installers at trial establishes that Heidelberger was not

involved in the day-to-day operation of the business. When he visited the two

largest job sites, Heidelberger did nothing more than observe the progress of the

installers at two big projects. He did not instruct the installers on their work

because he did not know how to install shutters. He also could not communicate

with most of the installers because he spoke “[v]ery, very little” Spanish, and the

primary language of most of the installers was Spanish. Heidelberger never gave

the installers work orders, and Milan testified that he “never knew” Heidelberger.

Heidelberger’s one-time participation in a payroll dispute toward the end of the life

of the company does not establish that he exercised day-to-day control.

Our decision in Patel v. Wargo, 803 F.2d 632 (11th Cir. 1986), is instructive.

Like Heidelberger, Wargo was a director of and a principal, but not majority,

stockholder in a company. Id. at 637. Unlike Heidelberger, Wargo was also

president of that company. Id. Nevertheless, the district court found that Wargo

was neither responsible for the contract of the plaintiff employee nor involved in

the day-to-day operation of the business, and we affirmed. Id. at 638. Similarly,

Heidelberger had no responsibility for the contracts with Feliciano or Milan and

was not involved in the day-to-day operations of Safe Hurricane Shutters. The

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installers presented no testimony that they were instructed to ask questions of

Heidelberger in the absence of the Chief Executive Officer, Edward Leiva; that

Heidelberger had any authority to act without Leiva’s approval; or that

Heidelberger resolved day-to-day problems on his short visits to the business each

month. Based on these facts, I would conclude that Heidelberger “lacked the

operational control necessary for the imposition of liability as an ‘employer’ under

the [Act].” See id.

I concur in part and dissent in part. I concur in the decision that McCarroll

and Safe Hurricane Shutters are not entitled to a judgment as a matter of law, but I

would reverse and remand for a new trial with respect to McCarroll and Safe

Hurricane Shutters and grant a judgment as a matter of law in favor of

Heidelberger.

40