Opinion
Index Number 21517 / 2008 Cal. Number 13 Motion Seq. No.6
07-26-2011
DAVID RODRIGUEZ, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. METROPOLITAN CABLE COMMUNICATIONS, INC. and TIME WARNER CABLE OF NEW YORK CITY, a division of Time Warner Entertainment Company, L.P., Defendants.
Short Form Order
Present: HONORABLE Justice
Motion Date: June 1, 2011
The following papers numbered 1 to 6 read on this motion by defendant Time Warner Cable of New York City (TWNY) for summary judgment dismissing the complaint against it on the ground that it was not a joint employer of the plaintiff
+--------------------------------------------------------+ ¦ ¦Papers Numbered¦ +----------------------------------------+---------------¦ ¦Notice of Motion - Affidavits - Exhibits¦1-3 ¦ +----------------------------------------+---------------¦ ¦Reply Affidavits ¦4-7 ¦ +----------------------------------------+---------------¦ ¦Memoranda of Law ¦8-9 ¦ +--------------------------------------------------------+
Upon the foregoing papers it is ordered that the motion is granted.
I. Background
Plaintiff David Rodriguez seeks to maintain this action as a class action against defendant Metropolitan Cable Communications, Inc. (MCC) and defendant TWNY, companies which he alleges were his joint employers from June, 2004 to May, 2005. The plaintiff alleges that MCC and TWNY failed to compensate him in compliance with the overtime provisions of the New York State Labor Law and made illegal deductions from his paycheck in violation of the state Labor Law.
Defendant TWNY, a Delaware corporation with its principal place of business at One Time Warner Center, New York, New York, provides digital telephone, cable television, and internet services to customers in the State of New York. Defendant MCC, a New York corporation with its principal place of business at 26-58 Borough Place, Woodside, New York, distributes, installs, and services equipment for TWNY.
Plaintiff Rodriguez , an employee of MCC and allegedly also an employee of TWNY, claims that he often worked more than 40 hours per week, but the defendants did not pay him at least one and one-half times his regularly hour rate. He began this action on or about August 26, 2008 by the filing of a summons and a complaint which asserts one cause of action under New York Labor Law Article 19.
II.Facts
TWNY, the the largest cable services provider in the New York City area, installs and services cable connections and equipment in the homes of its 1,300,000 customers. Although TWNY uses its own "in-house" technicians, the cable provider also contracts with three companies which provide installation and service to its customers : (1) MCC, (2) Uptown Communications & Electric, and (3) Broadband Express. MCC has also provided services for Cablevision in New York and for Dish Network in Florida, although it presently does business only with TWNY.
TWNY's contract with MCC states that the latter shall be an "independent contractor solely responsible for the performance of the work" and that the relationship is not a partnership or joint venture. The contract further provides that MCC shall be "solely responsible for the supervision and conduct of its employees" and solely responsible for compliance with state and federal law concerning employees.
TWNY does not hire MCC's technicians, and the cable provider does not participate in the hiring process such as by advertising for job openings, receiving applications for employment, or conducting interviews. However, Time Warner Cable, the parent of TWNY, requires the cable installation companies to conduct a criminal history search for each job candidate and to contact his or her prior employer. Rodriguez did not meet or communicate with anyone from TWNY before MCC hired him. TWNY does not keep any employment records concerning MCC technicians
TWNY does not discipline MCC technicians. The installation company decides when to discipline it workers for poor performance, failing to remain in contact with the company, and damage to customer's homes. The warnings issued to Rodriguez came from MCC, not TWNY.
TWNY does not terminate MCC's employees, and the cable installer is not required to notify the cable provider of terminations. However, TWNY has the right to prohibit a technician from working in its "system," where he would have to interact with TWNY's customers or enter their homes. Section III(F) of the contract between the parties provides in relevant part: "Time Warner Cable has established rules of conduct attached hereto as Schedule C (the 'Rules of Conduct') to be adhered to by Contractor's employees at and around the work sites. Time Warner Cable shall have the right to have removed from any work site any employee, agent, subcontractor or sub-contractor of contractor who violates such Rules of Conduct." While the contract contemplated the establishment of Rules of Conduct, TWNY has not done so. Moreover, in the past fourteen years, TWNY has removed only one or two technicians from its system.
TWNY does not set the rates of pay or methods of payment for MCC technicians. Rates of pay and overtime entitlement are determined through collective bargaining between MCC and the International Brotherhood of Electrical Workers, Local 3, which represents MCC technicians. TWNY is not a party to the collective bargaining agreement and does not participate in its negotiation. The collective bargaining agreement also contains provisions regarding the technician's probationary period, seniority rights in the event of lay-offs, reimbursement for union-approved training courses, and entitlement to Worker's Compensation Insurance. MCC also pays additional compensation to its technicians for each job that they complete, and the amount of compensation ultimately depends on the arrangements made by TWNY and MCC between themselves. MCC issued the paychecks and W-2's received by Rodriguez, and he never received a payment of any kind from TWNY. Rodriguez made his complaints about payroll problems to MCC, and he authorized that company to make deductions from his wages for lost tools.
With only one exception (the lock box key), TWNY does not provide tools, uniforms, or vehicles to MCC technicians. TWNY does provide MCC technicians with a lock box key which they use to gain access to the "tap," the entry point for cable in a multi-unit dwelling. MCC provides its workers with radios which they use to communicate with MCC supervisors while in the field. MCC technicians wear a uniform with the logo of only that company. MCC provides its employees with identification cards showing the technician's name, photograph, and company logo, and the identification cards also show TWNY's name as required by a cable franchise agreement with New York City.
For the most part, TWNY does not train MCC's technicians, although they may receive "Tech Tips," small training manuals provided by the cable provider, and although they may attend an occasional training session run by TWNY. In order to train a new employee, MCC sends a foreman out into the field with him so that he can observe the foreman perform the necessary work. MCC determines if re-training by one of its foreman is necessary because of poor performance. MCC also conducts periodic training sessions for its technicians to familiarize them with TWNY's new products and work specifications.
TWNY does not supervise MCC technicians, although TWNY runs an automated phone system called "Echo," whereby customers receiving installation services are asked to respond to a phone questionnaire inquiring about their satisfaction with the job. MCC's foremen inspect jobs completed by company technicians for the purposes of quality control, and the former will speak to the latter if improvement is needed. However, TWNY does check a few installations to ensure that cable installation companies are complying with their contractual obligations and standards. MCC performs over 100,000 installations for TWNY each year, and TWNY checks only about 2%- 4% of them for contract compliance. A little more than one-half of these checks only involve an observation of the "external" portion of the job (the work done from the tap on the utility pole to the house) and do not involve any inspection of the work performed by the technician inside the home. TWNY demands reimbursement from MCC for unsatisfactory jobs, and the latter has disciplined and terminated its workers for what it determines to be excessive occurrences of failed quality control inspections. TWNY has not instructed MCC to discipline or terminate any technician for poor work discovered through its quality checks, although the former has occasionally communicated with the latter's general manager about an installer's high trouble call rate. TWNY will inquire about what action MCC will take, although it does not demand that any particular discipline be imposed. Plaintiff Rodriguez left MCC following failed quality control inspections.
TWNY does not determine the hours worked by MCC technicians, although they must perform their work within time periods ("windows') that TWNY sets with its customers. Technicians contact MCC managers when late or absent for the day. Although TWNY sends MCC approximately 700-800 work orders per day, TWNY does not assign work to the latter's technicians. MCC's routing foreman determines which technicians receive a particular work order (a form identifying a customer and giving a description of the services required).
III. Relevant Law
A. Similar Cases Against Cable Providers
This case is hardly the first of its kind brought against cable providers, and all the summary judgment cases cited by the parties, except for one, are in favor of TWNY.: (1) Lawrence v. Adderley Industries, Inc., 2011 WL 666304, [EDNY., February 11, 2011] [nor] [ summary judgment granted to Cablevision Systems Corporation ]); (2) Jacobson v. Comcast Corp., 740 F.Supp.2d 683 [D.Md., 2010] [summary judgment granted to Comcast Corp].); (3) Smilie v. Comcast Corp., No.07-CV-3231 (MES) [ ND. Ill, 2009][ summary judgment granted to Comcast Corp.]) ; (4) Santelices v. Cable Wiring, 147 F Supp 2d 1313 [SD Fla., 2001] [summary judgment granted to cable provider]) ; and (5) Herman v. Mid-Atlantic Installation Serv., Inc., 164 Fsupp 2d 1313 [D. Md., 2000], affd, sub nom Chao v. Mid-Atlantic Installation Services, Inc., 16 Fed.Appx. 104, 2001 WL 739243 [C.A.4] [Comcast granted summary judgment].) On the other hand, Keeton v. Time Warner Cable, Inc.(2011 WL 2618926 [SD Ohio, July, 2011]) is in favor of the plaintiff (summary judgment denied. to cable provider sued as a purported joint employer).
B. Joint Employment
Because the definition of "employ" is the same under New York State and federal law (see, Labor Law §2[7] and 29 USC §203[g]), " the test for determining whether an entity or person is an 'employer' " is the same under New York State and federal law ***." (Ovadia v. Office of Indus. Bd. of Appeals (IBA), 81 AD3d 457, 457-458, quoting Chu Chung v. New Silver Palace Rest., Inc., 272 F.Supp.2d 314, 318 n. 6 .) The definitions are not precise. Labor Law §2, "Definitions," states only "7. 'Employed' includes permitted or suffered to work." The courts have attempted to give the definition more content. "An entity 'suffers or permits' an individual to work if, as a matter of 'economic reality,' the entity functions as the individual's employer." (Zheng v. Liberty Apparel Co. Inc. 355 F.3d 61, 66 [C.A.2, 2003].) Although the statutes offer little guidance,"the overarching concern is whether the alleged employer possessed the power to control the workers in question *** with an eye to the 'economic reality' presented by the facts of each case ***." (Herman v. RSR Security Services Ltd., 172 F.3d 132, 139 [CA2,1999]; Zheng v. Liberty Apparel Co. Inc., supra, 66.)
Joint employment exists where an individual does work for more than one individual or entity at the same time. (Ovadia v. Office of Indus. Bd. of Appeals (IBA), supra; Zheng v. Liberty Apparel Co. Inc., supra; Jacobson v. Comcast Corp., supra.)
Under the "economic reality" test for joint employment, the factors to be considered are (1) whether the alleged employer "had the power to hire and fire the employees," (2) whether the alleged employer "supervised and controlled employee work schedules or conditions of employment," (3) whether the alleged employer "determined the rate and method of payment," and (4) whether the alleged employer maintained employment records." (Carter v. Dutchess Community College, 735 F.2d 8, 12 [CA2,1984]; Herman v. RSR Sec. Services Ltd., supra.) These factors determine whether an entity has "formal control" over an individual so as to qualify as an employer. (See, Barfield v. New York City Health and Hospitals Corp. , 537 F.3d 132 [CA2, 2008]; Copantitla v. Fiskardo Estiatorio, Inc., --- F.Supp.2d ----, 2011 WL 2127808 [ S.D.N.Y., May 27, 2011]; Lawrence v. Adderley Industries, Inc., supra.)
An entity may have "functional control" over a worker even in the absence of formal control so as to qualify as an employer. (See, Barfield v. New York City Health and Hospitals Corp., supra; Lawrence v. Adderley Industries, Inc., supra.) The factors to be considered in determining functional control include: (1) whether the alleged employer's premises and equipment were used for the individual's work; (2) whether contractor corporations "had a business that could or did shift as a unit from one putative joint employer to another;" (3) the extent to which an individual " performed a discrete line-job that was integral to [ the alleged employer's ] process of production," (4) "whether responsibility under the contracts could pass from one subcontractor to another without material changes;" (5) the degree to which the alleged joint employer or its agents supervised an individual's work; and (6) whether the individual "worked exclusively or predominantly for [the alleged employer]."(Zheng v. Liberty Apparel Co. Inc., supra, 72; Barfield v. New York City Health and Hospitals Corp., supra; Lawrence v. Adderley Industries, Inc., supra.)
IV. Summary Judgment
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ***." (Alvarez v. Prospect Hospital, 68 NY2d 320, 324.) Once this burden is carried, the opponent of the motion assumes the burden of producing evidence showing that there is a genuine issue of fact which must be tried (Alvarez v. Prospect Hospital, supra) or of demonstrating that discovery is needed to successfully oppose the motion. (See, CPLR 3212[f].)
Ordinarily, "the question whether a defendant is a plaintiff's joint employer is a mixed question of law and fact. Such questions involve the application of a legal standard to a particular set of facts." (Zheng v. Liberty Apparel Co., Inc., 185 [internal quotations, alterations and citation omitted].) Mixed questions of law and fact are "especially well suited for jury determination and summary judgment may be granted only when reasonable minds could not differ on the issue." (Mendell v. Greenberg 927 F.2d 667, 673 [C.A.2 1991]; Zheng v. Liberty Apparel Co. Inc., supra.) "Nonetheless, summary judgment is appropriate where application of the relevant factors to the facts of the case, viewed in the light most favorable to the plaintiff, compels the legal conclusion that the plaintiff was not an employee of a putative joint employer ***." (Lawrence v. Adderley Industries, Inc. , supra, 7)
IV. Discussion
A. Further Discovery
The plaintiff did not successfully show that MCC must first make disclosure as required by the Appellate Division (Rodriguez v. Metropolitan Cable Communications, 79 AD3d 841) before he can oppose the instant motion. The outstanding discovery concerns preclass certification information needed to determine whether the prerequisites of a class action may be satisfied and does not have much relevance to the issues raised by this motion."The purpose of preclass certification discovery is to ascertain the dimensions of the group of individuals who share plaintiff's grievance." (Rodriguez v. Metropolitan Cable Communications, supra, quoting Smith v. Atlas Intl. Tours, 80 AD2d 762, 764.)
B. Formal Control
TWNY showed prima facie that it did not exercise sufficient formal control over MCC technicians to be regarded as a joint employer. First, TWNY does not hire or fire the technicians, although it could bar a technician who performed unsatisfactory work from its system for the purposes of quality control, a remedy it invoked very rarely. (See, Jacobson v. Comcast Corp., supra, 689 -690 ["It is only in the context of quality control, however, that Comcast exercises power over the hiring or firing of technicians].) Second, although TWNY exercised close supervision over the activities of its cable installation subcontractors, "detailed instructions and a strict quality control mechanism will not, on their own, indicate an employment relationship." (Jacobson v. Comcast Corp., supra, 690.) TWNY's requirement that MCC meet the former's quality and technical specifications is not the type of control which confers joint employee status on the latter's workers. (See, Herman v. Mid-Atlantic Installation Services, Inc., supra.) MCC's foremen supervise the company's technicians, and MCC's routing foreman determines which technicians receive a particular work order. MCC supervises its technicians, controls their work schedules, and sets their conditions of employment. TWNY's establishment of "windows" within which its customers must be serviced arises from the need to provide reliable and convenient service to customers and does not compel a finding of joint employment. (See, Herman v. Mid-Atlantic Installation Services, Inc., supra; Lawrence v. Adderley Industries, Inc., supra.) Third, TWNY did not set the rate of payment received by technicians, a matter determined by a collective bargaining agreement between MCC and International Brotherhood of Electrical Workers, Local 3. While TWNY paid MCC on a per job basis and MCC, in turn, paid additional compensation to its technician for each completed job, this factor does not establish that TWNY controlled the rate of payment received by the technician. (See, Lawrence v. Adderley Industries, Inc., supra; Jacobson v. Comcast Corp., supra ["To find that this arrangement places Comcast in control of Plaintiffs' wages would dramatically expand the FLSA to subsume traditional independent contractor relationships"].) Fourth, TWNY did not keep employment records of the technicians.
The burden on this motion shifted to the plaintiff to produce sufficient evidence showing that there is a genuine issue of fact regarding formal control which must be tried. (See, Alvarez v. Prospect Hospital, supra.). The plaintiff failed to carry this burden. (See, Lawrence v. Adderley Industries, Inc., supra.)
C. Functional Control
TWNY also showed prima facie that it did not exercise sufficient functional control over MCC technicians to be regarded as a joint employer.
First, the technicians did not work on TWNY's premises, and TWNY did not provide them with the equipment needed to perform their jobs with the limited exception of the lockbox key.
Second, MCC could, if it so chose, shift its business as a unit to another company, a factor which undermines a claim of joint employment. (See, Zheng v. Liberty Apparel Co. Inc. supra; Lawrence v. Adderley Industries, Inc., supra ["Adderley's business could 'shift as a unit' from Cablevision to another cable media provider"].) MCC has in the past performed services for Cablevision in New York and for Dish Network in Florida. "[T]he second factor-namely, whether the putative joint employees are part of a business organization that shifts as a unit from one putative joint employer to another-is relevant because a subcontractor that seeks business from a variety of contractors is less likely to be part of a subterfuge arrangement than a subcontractor that serves a single client." (Zheng v. Liberty Apparel Co. Inc. , supra, 72.)
Third, MCC technicians did not perform a discrete line-job that was integral to a process of production, did not work on a production line, and did not engage in the manufacturing of a product. Instead, MCC technicians work out in the field on jobs that require special skills and training. (See, Zheng v. Liberty Apparel Co. Inc. , supra [ "On the other end of the spectrum lies work that is not part of an integrated production unit, that is not performed on a predictable schedule, and that requires specialized skills or expensive technology."]; Lawrence v. Adderley Industries, Inc., supra ["although plaintiff and Adderley's other technicians perform discrete jobs that are integral to Cablevision's services, the degree of skill required to perform those jobs weighs against a finding of employer status"].)
Fourth, in regard to whether subcontracted responsibility could pass from one subcontractor to another without material changes, this factor indicates joint employment where, despite a change in the subcontracting company, "the same employees would continue to do the same work in the same place." (Zheng v. Liberty Apparel Co. Inc., supra, , 74.[ emphasis in original].) The fourth factor is in favor of TWNY. In the case at bar, MCC's technicians are "tied" to their own cable installation company (Zheng v. Liberty Apparel Co. Inc., supra, , 74.), and would do no work on behalf of TWNY as MCC technicians if the subcontractual relationship ended. MCC technicians do work on behalf of TWNY only if their company is one of the subcontractors chosen by the cable provider. "Where *** employees work for an entity (the purported joint employer) only to the extent that their direct employer is hired by that entity, this factor does not in any way support the determination that a joint employment relationship exists." (Zheng v. Liberty Apparel Co. Inc., supra, 74 .) The fourth factor does not weigh weigh " in favor of joint employment when a general contractor uses numerous subcontractors who compete for work and have different employees." (Zheng v. Liberty Apparel Co. Inc., supra, 74, fn 11.[emphasis in original].) TWNY subcontracts work to three different cable installation companies.
Fifth, TWNY did not "extensively" supervise the work of technicians and did not control the terms and conditions of their employment.. "[E]xtensive supervision weighs in favor of joint employment only if it demonstrates effective control of the terms and conditions of the plaintiff's employment ***." (Zheng v. Liberty Apparel Co. Inc., supra, 75.) Although TWNY closely monitored MCC's performance under the subcontract, "supervision with respect to contractual warranties of quality and time of delivery has no bearing on the joint employment inquiry, as such supervision is perfectly consistent with a typical, legitimate subcontracting arrangement." (Zheng v. Liberty Apparel Co. Inc. , supra, 75; see, Lawrence v. Adderley Industries, Inc., supra ["although Cablevision performs quality control inspections and reviews of the work performed by Adderley's technicians, it does not exercise any significant degree of supervision over plaintiff's or any particular technician's work."; Jacobson v. Comcast Corp., supra ["Comcast's quality control procedures ultimately stem from the nature of their business and the need to provide reliable service to their customers, not the nature of the relationship between the technicians and Comcast."].)
Sixth, while MCC technicians at the present time service TWNY's customers exclusively, this factor alone is insufficient to establish functional control. (See, Lawrence v. Adderley Industries, Inc., supra.) The issue of joint employment must be resolved on the entire relationship viewed in its totality, not on the basis of any one factor alone. (See, Jacobson v. Comcast Corp., supra.)
The burden on this motion shifted to the plaintiff to produce evidence showing that there is a genuine issue of fact regarding functional control to be tried. (See, Alvarez v. Prospect Hospital, supra.) The plaintiff failed to carry this burden. The record in this case is very similar to those in Jacobson v. Comcast Corp (supra) and Lawrence v. Adderley Industries, Inc., (supra), and here also the cable provider is entitled to summary judgment.
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SIDNEY F. STRAUSS, J.S.C.