Leandre Layton v. DHL Express, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12532 JULY 9, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:08-cv-01542-WMA

LEANDRE LAYTON,
on behalf of himself and all those similarly situated,

llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,

versus

DHL EXPRESS (USA), INC.,

llllllllllllllllllllllllllllllllllllllll Defendant - Appellee,

SKY LAND EXPRESS, INC., et al.

llllllllllllllllllllllllllllllllllllllll Defendants.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
________________________

(July 9, 2012)
Before EDMONDSON, WILSON, and KRAVITCH, Circuit Judges.

WILSON, Circuit Judge:

Leandre Layton, on behalf of himself and the similarly-situated members of

his conditionally-certified class (collectively, “Drivers”), appeals the district

court’s grant of summary judgment in favor of DHL Express, Inc. (“DHL”) on his

claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

After a thorough examination of the realities of the economic relationship between

Drivers and DHL, we affirm on the grounds that DHL is not a joint employer of

Drivers.

I.

DHL is a provider of shipping and logistic services. In some parts of the

country, DHL hires third-party contractors who employ couriers to deliver DHL’s

packages. Between 2005 and 2009, DHL utilized Sky Land Express, Inc. (“Sky

Land”) as such a contractor in Alabama. Sky Land worked out of three warehouse

locations in the state: Birmingham, Jasper, and Tuscaloosa. The relationship

between DHL and Sky Land was governed by a Cartage Agreement that stated that

Sky Land was an independent contractor of DHL and specified Sky Land’s

contractual duties. Drivers were employed by Sky Land and served mainly as

delivery couriers, although some also acted as supervisors, dispatchers, and shuttle

2
drivers. Sky Land owned the vehicles that Drivers used to deliver packages; DHL

owned the warehouse facilities and all other equipment.

Every morning, DHL had packages delivered to the Birmingham

warehouse. Drivers could not begin work until a DHL employee informed them

that those packages had been received and coded and were ready for pick-up.

After receiving the go-ahead, Drivers sorted, scanned, and loaded the packages.

Sky Land leased the necessary scanners from DHL. As Drivers loaded their

vehicles at the warehouse, a DHL employee would often inspect Drivers’ vehicles

and uniforms to ensure that they conformed to the standards specified in the

Cartage Agreement. The uniforms and the vehicles bore the names of both DHL

and Sky Land.

Drivers delivered some packages straight from the Birmingham warehouse

to customers; the rest of the packages were shuttled to the Tuscaloosa and Jasper

warehouses, retrieved by Drivers, and then delivered. Drivers spent the majority

of their days making pick-ups and deliveries in their vehicles. Throughout the

day, DHL sent information regarding customer complaints, requests for re-

deliveries, and other non-routine matters to Drivers. As Drivers worked, they used

the scanners to log the time at which each package was picked up or delivered.

When Drivers had completed their delivery routes for the day, they unloaded any

3
remaining packages at one of the warehouses and returned their scanners to be

charged overnight. At that time, the information that the scanner had collected

during the day about package locations was transmitted to a DHL data server.

On August 27, 2008, Layton filed a collective action under the FLSA for

unpaid overtime compensation, naming DHL, Sky Land, and Gary Littlefield, the

owner and president of Sky Land, as his joint employers and defendants to the

suit. On June 22, 2009, the district court granted Layton conditional collective-

action certification pursuant to 29 U.S.C. § 216(b). The conditionally-certified

class included forty-nine delivery drivers who had worked for Sky Land in

Alabama; the class period was June 22, 2006 through June 22, 2009.1

On October 22, 2010, DHL moved for summary judgment on the ground

that it was not an employer of Drivers. On November 5, 2010, Sky Land and

Littlefield moved for summary judgment, claiming that (1) the FLSA’s Motor

Carrier Act Exemption (“MCE”) made Drivers ineligible for overtime

compensation and (2) one member of the conditionally-certified class fell within

the executive exemption to the FLSA. On November 16, 2010, DHL filed an

untimely motion to join and adopt Sky Land and Littlefield’s motion. On

1
An additional twenty-five persons have since opted-in to join the action as members of
the conditionally-certified class.

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December 3, 2010, Layton, Sky Land, and Littlefield jointly moved to dismiss Sky

Land and Littlefield as defendants. Three days later, the district court granted the

motion, dismissed Sky Land and Littlefield and ordered their motion withdrawn,

and denied DHL’s motion to adopt. On January 12, 2011, the district court denied

DHL’s motion for summary judgment. Then, on February 15, 2011, the district

court sua sponte vacated its order denying DHL’s request to join Sky Land and

Littlefield’s motion to dismiss. Subsequently, on May 3, 2011, the district court

granted summary judgment for DHL, finding that (1) the “dismissal of Sky Land

effectively eliminated [Plaintiff class members’] claim against DHL” and (2)

Plaintiff class members fell within the MCE and were thus not able to assert

overtime pay claims. The district court later amended the order to add an

additional reason for granting the motion:

DHL did everything it could possibly do to relate to Sky Land only as
an “independent contractor[.”] The contract with Sky Land allowed
DHL to exercise only the minimal supervision necessary to monitor
compliance with the contract. The undisputed facts lead to the
conclusion that if plaintiffs were employed by anybody, they were
employed by Sky Land, the entity that they ostentatiously dismissed
as a defendant, for reasons this court can only guess at. DHL was not
an employer, much less a joint employer.

Layton now appeals the district court’s grant of summary judgment.

II.

We review de novo a district court’s grant of summary judgment. Vector

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Prods., Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316, 1318 (11th Cir. 2005) (per

curiam). We can affirm a grant of summary judgment on grounds other than those

relied upon by the district court. Edwards v. Niagara Credit Solutions, Inc., 584

F.3d 1350, 1354 (11th Cir. 2009). In reviewing a grant of summary judgment, we

resolve all ambiguities and draw reasonable factual inferences from the evidence

in the non-movant’s favor. Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836,

840 (11th Cir. 2000). Therefore, throughout this opinion we have presented all

evidence in the light most favorable to Layton.

III.

The FLSA defines an employer as “any person acting directly or indirectly

in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). An

entity “employs” a person under the FLSA if it “suffer[s] or permit[s]” the

individual to work. Id. § 203(g). In order to determine whether an alleged

employer “suffer[s] or permit[s]” an individual to work, we ask “if, as a matter of

economic reality, the individual is dependent on the entity.” Antenor v. D & S

Farms, 88 F.3d 925, 929 (11th Cir. 1996) (quoting Goldberg v. Whitaker House

Coop., Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 936–37 (1961)). An employee may

have more than one employer, and “whether the employment by the employers is

to be considered joint employment or separate and distinct employment for

6
purposes of the act depends upon all the facts in the particular case.” 29 C.F.R. §

791.2(a). A joint-employment relationship will generally be found to exist in

situations such as:

(1) Where there is an arrangement between the employers to share the
employee’s services, as, for example, to interchange employees; or
(2) Where one employer is acting directly or indirectly in the interest
of the other employer (or employers) in relation to the employee; or
(3) Where the employers are not completely disassociated with
respect to the employment of a particular employee and may be
deemed to share control of the employee, directly or indirectly, by
reason of the fact that one employer controls, is controlled by, or is
under common control with the other employer.

Id. § 791.2(b) (footnotes omitted).

In this circuit, many joint-employment FLSA claims have arisen in cases

also asserting a joint-employment relationship under the Migrant and Seasonal

Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. § 1801 et seq. Because

the AWPA defines the term “employ” by reference to the FLSA and because the

AWPA regulations provide more detailed guidance regarding the definition of

joint employer, much of our caselaw expanding upon the definition of joint

employment has relied upon the AWPA regulations.

For example, in Aimable v. Long & Scott Farms, a farm labor contractor

recruited migrant farm workers to harvest crops for a property owner. 20 F.3d

434, 437 (11th Cir. 1994). The farm workers then brought FLSA and AWPA

7
claims against both the contractor and the property owner as joint employers. Id.

at 437. The district court determined that the contractor was, in fact, an employer,

and the only question on appeal was whether the property owner was also an

employer. Id. In evaluating the existence of an employment relationship, we

looked at eight factors. We drew the first five factors from regulations relating to

the AWPA:

[1] The nature and degree of control of the workers;
[2] The degree of supervision, direct or indirect, of the work;
[3] The power to determine the pay rates or the methods of payment
of the workers;
[4] The right, directly or indirectly, to hire, fire, or modify the
employment conditions of the workers;
[5] Preparation of payroll and the payment of wages.

See id. at 438 (quoting 29 C.F.R. § 500.20(h)(4)(ii)).2 We derived factors six and

seven from caselaw: (6) ownership of the facilities where work occurred, and (7)

performance of a specialty job integral to the business. See id. at 439, 444

(drawing upon Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S. Ct. 1473

(1947) (“Rutherford”) and Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d

235 (5th Cir. 1973)). A final factor—investment in equipment and facilities—we

deemed irrelevant if one were comparing the investment by the workers versus the

2
Judge Easterbrook has described the AWPA regulations as “offer[ing] a way to think
about the subject [of joint employment] and not an algorithm.” Reyes v. Remington Hybrid Seed
Co., 495 F.3d 403, 408 (7th Cir. 2007).

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land owner. Id. at 443. However, we did find it worthwhile to evaluate the

relative investments of the land owner and the contractor because such an analysis

might shed light on whether the workers were economically dependent on the land

owner. Id. When discussing Aimable in a subsequent case, we definitively stated

that the investments of the purported employer and the contractor should be

considered as the eighth factor of the joint-employment test. Antenor, 88 F.3d at

937.

In Aimable, we also found three factors to be irrelevant to our analysis: (1)

the opportunity for profit and loss, (2) permanency and exclusivity of employment,

and (3) the degree of skill required to perform the job. 20 F.3d at 443–44. We

explained that these three factors only distinguished whether one was an employee

or an independent contractor. See id. Because it had been determined that the

farm workers were employees of the contractor, there was no need to evaluate

whether hallmarks of an independent-contractor relationship existed. See id.

In 1997, the Department of Labor amended the AWPA regulations to further

clarify the definition of joint employment under the AWPA. Following the

amendments, we were confronted with AWPA claims in Charles v. Burton, 169

F.3d 1322 (11th Cir. 1999) (per curiam), and we adapted the eight-factor test laid

out in Aimable to reflect the new guidance offered by the regulations. See, e.g.,

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169 F.3d at 1332 (“[T]he Aimable court found that an analysis of this factor fails

to aid in this determination. We, however, choose to analyze this factor, since it is

included in the AWPA’s regulations.” (internal citations omitted)). Charles,

incorporating the amendments to the AWPA regulations, set out a seven-factor test

for evaluating whether an employment relationship exists:

(1) whether the agricultural employer has the power, either alone or
through the FLC [farm labor contractor], to direct, control or
supervise the workers or the work performed (such control may be
either direct or indirect, taking into account the nature of the work
performed and a reasonable degree of contract performance oversight
and coordination with third parties); (2) whether the agricultural
employer has the power, either alone or in addition to another
employer, directly or indirectly, to hire or fire, modify the
employment conditions, or determine the pay rates or the methods of
wage payment for the workers; (3) the degree of permanency and
duration of the relationship of the parties, in the context of the
agricultural activity at issue; (4) the extent to which the services that
the workers rendered are repetitive, rote tasks requiring skills that are
acquired with relatively little training; (5) whether the activities that
the workers performed are an integral part of the overall business
operation of the agricultural employer; (6) whether the work is
performed on the agricultural employer’s premises, rather than on
premises that another business entity owns or controls; and (7)
whether the agricultural employer undertakes responsibilities in
relation to the workers that employers commonly perform, such as
preparing and/or making payroll records, preparing and/or issuing pay
checks, paying FICA taxes, providing workers’ compensation
insurance, providing field sanitation facilities, housing or
transportation, or providing tools and equipment or materials required
for the job (taking into account the amount of the investment).

169 F.3d at 1329. In fashioning this test, some of the Aimable factors were

10
combined and new factors were added.

Layton urges us to consider all the factors stated in Charles, including those

that were not laid out in Aimable. We decline that invitation. The court in

Charles was considering only AWPA claims, not FLSA claims; therefore, Charles

does not dictate the factors we must utilize in our evaluation of FLSA claims.3

Although the AWPA defines joint employment by reference to the definition

provided in the FLSA, that does not mean that the reverse holds true—that joint

employment under the FLSA is invariably defined by AWPA regulations.

Because Aimable crafted a definition of “joint employer” that applied to both

AWPA and FLSA claims and that test has not been disrupted by a case involving

FLSA claims or amendments to the FLSA, we must follow the eight-factor test of

Aimable.

In applying the eight-factor test, we are guided by a number of principles:

First, the question in “joint employment” cases is not whether the
worker is more economically dependent on the independent
contractor or the [alleged employer], with the winner avoiding
responsibility as an employer. . . . [T]he focus of each inquiry must be
on each employment relationship as it exists between the worker and
the party asserted to be a joint employer.

Second, no one factor is determinative. As we explained in Aimable,

3
Although Charles’s joint-employment test is not binding precedent here, we reference
Charles and its progeny as persuasive authority to the extent that those cases help us apply the
eight factors of Aimable.

11
 the existence of a joint employment relationship depends on the
economic reality of all the circumstances.

Third, the factors are used because they are indicators of economic
dependence. They are aids—tools to be used to gauge the degree of
dependence of alleged employees on the business to which they are
connected. . . . Thus, the weight of each factor depends on the light it
sheds on the []workers’ economic dependence (or lack thereof) on the
alleged employer, which in turn depends on the facts of the case.

Fourth, a joint employment relationship is not determined by a
mathematical formula. . . . The purpose of weighing the factors is not
to place each in either the contractor or the [alleged employer’s]
column, but to view them qualitatively to assess the evidence of
economic dependence, which may point to both.

Fifth, in considering a joint-employment relationship, we must not
allow common-law concepts of employment to distract our focus
from economic dependency.

Antenor, 88 F.3d at 932–33 (quotation marks and citations omitted).

IV.

A.

We now turn to examine the economic realities of the relationship between

DHL and Drivers, using the eight factors of Aimable as a guide.

1. The nature and degree of DHL’s control of Drivers

“Control arises . . . when the [purported joint employer] goes beyond

general instructions . . . and begins to assign specific tasks, to assign specific

workers, or to take an overly active role in the oversight of the work.” Aimable,

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20 F.3d at 441 (explaining that although an agricultural company’s decisions

about what to plant and how much land to use showed “abstract” control over farm

workers, that type of control did not constitute control for FLSA purposes). A

purported employer takes an overly active role in the oversight of work “when it

decides such things as (1) for whom and how many employees to hire; (2) how to

design the employees’ management structure; (3) when work begins each day; (4)

when the laborers shall start and stop their work throughout the day; and (5)

whether a laborer should be disciplined or retained.” Martinez-Mendoza v.

Champion Int’l Corp., 340 F.3d 1200, 1209–10 (11th Cir. 2003) (quotation marks

and citation omitted) (discussing “nature and degree of control” factor as set forth

in Aimable). When assessing the nature and degree of control, our “focus is more

properly limited to specific indicia of control.” Aimable, 20 F.3d at 440.

Layton makes much of the fact that DHL made business decisions that

directly impacted the length of Drivers’ workdays, arguing that DHL de facto

controlled Drivers’ hours. For example, DHL dictated what time the packages

were available for pick-up each morning, thereby limiting how early Drivers’

workdays could begin. Additionally, DHL occasionally had erratic pick-up orders

to which Drivers had to respond, resulting in Drivers working longer hours.

However, we find this indirect type of control to be more akin to the “abstract”

13
control present in Aimable than the type of control exercised by an employer.

DHL may have incidentally impacted Drivers’ working conditions, but we do not

find that DHL’s conduct evidenced an “overly active” role in the oversight of

Drivers. DHL had certain objectives—having its packages delivered on time,

serving its customers—that Sky Land, and therefore Drivers, were tasked with

accomplishing. DHL did not involve itself with the specifics of how those goals

would be reached—it did not apportion tasks to individuals, specify how many

individuals should be assigned to each delivery route, or structure the chain of

command among Drivers. Overall, this factor weighs against a finding of joint

employment because DHL did not exert control as an employer would have.

2. DHL’s degree of supervision, direct or indirect, of Drivers’ work

Supervision can be present regardless of whether orders are communicated

directly to the alleged employee or indirectly through the contractor. Aimable, 20

F.3d at 441. “[I]nfrequent assertions of minimal oversight do not constitute the

requisite degree of supervision.” Martinez-Mendoza, 340 F.3d at 1211 (discussing

“degree of supervision” factor set forth in Aimable).

Drivers spent the majority of their days by themselves in their trucks, away

from DHL facilities and DHL employees. However, Layton contends that DHL

still supervised them in a number of ways. First, Drivers were responsible for

14
loading packages onto their trucks at DHL’s warehouse, and DHL managers

oversaw that process, at times criticizing Appellants’ loading techniques. Second,

DHL audited Drivers’ vehicles and uniforms to ensure that they complied with the

standards stated in the Cartage Agreement. Third, DHL communicated with

Drivers via the scanners if a non-routine situation occurred and Drivers were

needed to re-deliver a package or respond to a customer complaint submitted to

DHL. We agree that these actions evidence a small amount of supervision.

However, we disagree with Layton’s contention that DHL “supervised” Drivers

because the scanners collected information about package locations; we do not

think that this type of data collection equates to employer-like supervision. The

scanners did not stream information to DHL in a way that would simulate the real-

time monitoring of an actual supervisor. Instead, the scanners sent aggregate

information to DHL’s data server at the close of the day. Furthermore, the

scanners only provided data about package location. Although such information

indirectly commented on Drivers’ work—delivery speed is a metric that could be

relevant to evaluating a delivery driver’s performance—this type of monitoring is

dissimilar from standard employer supervision and has little probative value for

the purposes of determining joint employment. As we stated above, DHL engaged

in a limited amount of monitoring at the warehouse, but Drivers were basically

15
unsupervised while completing their most essential job function which took up the

majority of the workday—making deliveries. Overall, this factor is not strongly

probative of joint employment.

3. DHL’s right, directly or indirectly, to hire, fire, or modify Drivers’

employment conditions

DHL’s only involvement with Sky Land’s hiring process was that DHL

stipulated in the Cartage Agreement that all persons hired to deliver DHL

packages had to pass a basic background check. DHL did not participate in the

actual hiring or firing of any employees. Furthermore, the only way in which DHL

modified Drivers’ employment conditions was by making business decisions that

impacted Drivers’ hours, as discussed above. See Antenor, 88 F.3d at 935 (finding

relevant the ability to dictate when the workday begins in examining whether one

has the right to modify workers’ hours). Because DHL had minimal involvement

with the employment process, this factor weighs against a finding of joint

employment.

4. DHL’s power to set Drivers’ pay rates or payment methods

Layton concedes that DHL had no power to set Drivers’ pay rates or

payment methods; Sky Land alone had this ability. Therefore, this factor weighs

against a finding of joint employment.

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 5. DHL’s preparation of payroll and payment of the Drivers’ wages

Layton admits that this factor also favors DHL because DHL was never

involved with the payment of Drivers. Sky Land independently dealt with its

payment obligations to Drivers. This factor weighs against a finding of joint

employment.

6. DHL’s ownership of the facilities where the work occurred

We stated in Antenor that ownership of the farm laborers’ worksite was

relevant to our inquiry because “without the land, the worker might not have work,

and because a business that owns or controls the worksite will likely be able to

prevent labor law violations, even if it delegates hiring and supervisory

responsibilities to labor contractors.” 88 F.3d at 937. In the instant case, Drivers

spent a small part of their days sorting, scanning, and loading packages in

warehouses owned by DHL. However, Drivers worked the vast majority of the

time in delivery vans owned by Sky Land.

Layton argues that it is relevant to the “ownership” determination that DHL

paid Sky Land a stipend of $38 per day to cover maintenance, fuel, and insurance

costs of the vehicles. We must disagree under the facts of this case and in light of

the purposes of this test. Ownership is relevant because a landowner is thought to

have some knowledge of and control over what happens on his land. See id. It is

17
not clear how paying Sky Land a stipend could enhance DHL’s ability to prevent

labor law violations. See id. Ownership is also relevant as an indicator of

economic independence. See id. The fact that Sky Land owned the

vans—regardless of whether fuel and maintenance costs were

reimbursed—demonstrates that Sky Land, and thus Drivers, could have worked as

couriers for other companies. Because Drivers were not dependent on DHL to

provide vans so that they could accomplish their core duty—delivering

packages—we find that this factor weighs against a finding of joint employment.

7. Drivers’ performance of a specialty job integral to the business

This factor is derived from Rutherford, in which the Supreme Court found

that meat boners recruited by a labor contractor to work at a slaughterhouse were,

under the FLSA, joint employees of the slaughterhouse. 331 U.S. at 729, 67 S. Ct.

at 1476. Although the workers brought their own tools and were labeled as

independent contractors, see id. at 724–25, 67 S. Ct. at 1474, the Court focused on

the fact that the workers completed one process in the middle of a series of

interdependent steps at the slaughterhouse. The facts led the Court to conclude

that the workers “did a specialty job on the production line” that was “more like

piecework than an enterprise that actually depended for success upon the

initiative, judgment or foresight of the typical independent contractor.” Id. at 730,

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67 S. Ct. at 1477. Because the workers were “part of the integrated unit of

production” of the slaughterhouse, the Court found them to be employees of the

establishment. Id. at 729, 67 S. Ct. at 1476.

We explained in Antenor that “a worker who performs a routine task that is

a normal and integral phase of the [alleged employer]’s production is likely to be

dependent on the [alleged employer]’s overall production process.” 88 F.3d at

937. Here, Drivers certainly performed a crucial task for DHL. Yet we are

hesitant to say that their role was “analogous to employees working at a particular

position on a larger production line.” Id. (discussing similarities between meat

boners in Rutherford and crop pickers participating in farm operations). Drivers

performed most of their work away from DHL’s facilities and supervision; they

did not work side-by-side with other DHL employees. Drivers also operated

vehicles not owned by DHL, and they were not contractually restricted from using

those vehicles to serve other companies needing delivery services. On balance, we

find that this factor does not strongly support a conclusion that a joint-employment

relationship exists.

8. DHL’s and Sky Land’s relative investment in equipment and facilities

We consider this factor because workers are more likely to be economically

dependent on the person who supplies the equipment or the facilities. Id. Here,

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Sky Land owned the delivery vans. DHL owned the warehouses where packages

were received and stored, as well as all other equipment that Drivers used.

Because both Sky Land and DHL made significant investments in facilities and

equipment, this factor does not aid our joint-employment inquiry. See Aimable, 20

F.3d at 443 (stating that because alleged employer and labor contractor both made

investments, this factor neither exonerated the purported employer nor

demonstrated that employees were dependent on employment).

B.

We believe it worthwhile to reiterate that the eight factors of Aimable are

only useful to us to the extent that they shed light on the existence of economic

dependence. See Antenor, 88 F.3d at 929. Our undertaking is oriented by the

desire to discover the economic reality of the total circumstances, and the eight-

factor test is merely a template for reaching that goal—a template more useful in

certain cases than in others. Here, DHL bore no financial or managerial

responsibility for Drivers. For the most part, DHL simply tasked Sky Land, and

thus Drivers, with macro-level goals—deliver the packages, respond to customer

complaints—and provided little guidance regarding the manner by which to

execute daily tasks. Sky Land alone held the power to hire, fire, and pay Drivers.

Sky Land alone owned the vans that allowed Drivers to complete their essential

20
job function, and because Sky Land’s contract with DHL was not exclusive, Sky

Land could have served other companies using those vehicles. We find that the

totality of the economic circumstances indicates that Drivers were not

economically dependent upon DHL, and we therefore affirm the district court on

the grounds that DHL was not a joint employer of Drivers.

AFFIRMED.

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