NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 2 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY LASATER, No. 17-56863
Plaintiff-Appellee, D.C. No.
2:16-cv-01373-SVW-AS
v.
DIRECTV, LLC, MEMORANDUM*
Defendant-Appellant.
DAVID VARAS, No. 17-56872
Plaintiff-Appellee, D.C. No.
2:16-cv-01395-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellant.
HENRY TRUJEQUE, No. 17-56873
Plaintiff-Appellee, D.C. No.
2:16-cv-01477-SVW-AS
v.
DIRECTV, LLC,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant.
PAUL GUZIK, No. 17-56874
Plaintiff-Appellee, D.C. No.
2:16-cv-01967-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellant.
MENDAMAR LKHAGVADORJ, No. 17-56875
Plaintiff-Appellee, D.C. No.
2:16-cv-01502-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellant.
JAMIE NAULT, No. 17-56898
Plaintiff-Appellee, D.C. No.
2:16-cv-05721-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellant.
ARMANDO SOLIS JUAREZ, No. 17-56899
Plaintiff-Appellee, D.C. No.
2
5:16-cv-00400-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellant.
JEFFREY KIDD, No. 17-56900
Plaintiff-Appellee, D.C. No.
2:16-cv-01506-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellant.
JEREMY LASATER, No. 17-56936
Plaintiff-Appellant, D.C. No.
2:16-cv-01373-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellee.
DAVID VARAS, No. 17-56938
Plaintiff-Appellant, D.C. No.
2:16-cv-01395-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellee.
3
HENRY TRUJEQUE, No. 17-56939
Plaintiff-Appellant, D.C. No.
2:16-cv-01477-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellee.
PAUL GUZIK, No. 17-56940
Plaintiff-Appellant, D.C. No.
2:16-cv-01967-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellee.
MENDAMAR LKHAGVADORJ, No. 17-56941
Plaintiff-Appellant, D.C. No.
2:16-cv-01502-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellee.
JAMIE NAULT, No. 17-56942
Plaintiff-Appellant, D.C. No.
2:16-cv-05721-SVW-AS
v.
4
DIRECTV, LLC,
Defendant-Appellee.
ARMANDO SOLIS JUAREZ, No. 17-56943
Plaintiff-Appellant, D.C. No.
5:16-cv-00400-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellee.
JEFFREY KIDD, No. 17-56944
Plaintiff-Appellant, D.C. No.
2:16-cv-01506-SVW-AS
v.
DIRECTV, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 16, 2019
Pasadena, California
Before: LIPEZ,** WARDLAW, and HURWITZ, Circuit Judges.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
5
The plaintiffs in these consolidated cases are technicians who install DirecTV
satellite systems. Although the technicians are paid by third parties who contract
with DirectTV for the installations, they claim that they are in reality employees of
DirectTV and are owed wages under the federal Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 201–19, and various portions of the California Labor Code. In an order
granting partial summary judgment to the plaintiffs, the district court held that they
were DirecTV employees under both state and federal law. The parties then
stipulated to entry of final judgments (including damage awards), preserving their
right to challenge prejudgment orders. We have jurisdiction of the timely appeals
filed by all parties under 28 U.S.C. § 1291. We vacate the district court’s judgment
and remand for further proceedings.
1. The district court erred by concluding that the plaintiff technicians were
employees of DirecTV as a matter of law. A reasonable jury could find that they
were independent contractors or employees of only the third parties for purposes of
the FLSA. Taken in the light most favorable to DirecTV, the evidence shows that
the technicians retained substantial control over the performance of work orders. See
Real v. Driscoll Strawberry Assocs., 603 F.2d 748, 754 (9th Cir. 1979) (listing useful
factors for distinguishing employees from independent contractors, including “the
degree of the alleged employer’s right to control the manner in which the work is to
be performed”). DirecTV does not control the technicians’ compensation or decide
6
whether they are hired or fired. See Moreau v. Air France, 356 F.3d 942, 950 (9th
Cir. 2004) (holding that Air France was not a joint employer in part because “it did
not determine the rate or method of pay” and “lacked the ability to hire or fire”).
Although the technicians provided evidence of DirecTV’s influence over their
working conditions and ability to affect the third parties’ employment decisions, the
facts give rise to competing inferences on the issue of employment. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts
are jury functions . . . .”).
2. After the district court’s judgment was entered, the California Supreme
Court adopted a new test for distinguishing employees from independent contractors
under California wage orders. Dynamex Operations W., Inc. v. Superior Court, 416
P.3d 1, 35 (Cal. 2018). We recently held that the Dynamex test applies retroactively.
See Vazquez v. Jan-Pro Franchising Int’l, Inc., 923 F.3d 575, 586–90 (9th Cir.
2019). Because the district court did not have the opportunity to apply the Dynamex
test, we vacate the summary judgment on the state law claims so that it may do so in
the first instance. See id. at 593–94. We also leave it to the district court to determine
in the first instance whether Dynamex applies in the joint employment context or to
7
claims not arising under a wage order.1
VACATED and REMANDED.2
1
The plaintiffs’ cross-appeals only challenge the district court’s finding that
any FLSA violations were not willful. Because we remand for further proceedings
on the FLSA claims, we do not address the merits of those appeals.
2
The motion by the California Chamber of Commerce for leave to file an
amicus brief in appeal No. 17-56863, Dkt. 73, is granted.
8
Jeremy Lasater v. Directv, LLC
Combined Opinion