United States District Court, W.D. Pennsylvania
STEWART CERCONE, SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is the motion for conditional certification
filed by John Bowser (“Plaintiff”), pursuant to
§ 216(b) of the Fair Labor Standards Act, 29 U.S.C.
§§ 201, et seq. (“FLSA”). (ECF
No. 53). In the operative first amended complaint, Plaintiff
asserts violations of the overtime provisions of the FLSA on
behalf of himself, and all others similarly situated, against
Empyrean Services, LLC (“Empyrean”), Guidant
Group, Inc. (“Guidant”), and Duke Energy
Corporation (“Duke) (collectively,
“Defendants”). (Docket No. 33). This Court
exercises subject-matter jurisdiction pursuant to 28 U.S.C.
§ 1331. After careful consideration of the motion, the
memoranda of the parties, and the record, the Court will
GRANT Plaintiff's motion.
Procedural and Factual Background
first amended complaint, Plaintiff claims that Duke utilized
the services of Guidant and Empyrean to provide it with a
pool of contingent workers, paid on an hourly basis, who
worked in excess of forty hours per week without any overtime
compensation required under the FLSA. (ECF No. 33
¶¶ 9, 12, 15, 20, 21, 23, 25, 26). Defendants are
alleged to have jointly hired, fired, supervised, set pay
rates, set schedules, and approved time worked by Plaintiff
and the other contingent workers. (Id. ¶ 10).
They also kept detailed records of the hours worked by each
contingent worker. (Id. ¶ 18).
defines its relationship with Duke as that of a
“managed services provider.” (ECF No. 54-1 at 6).
This relationship began in 2003. (ECF No. 54-1 at 7).
Guidant's agreement with Duke is to provide laborers on
an hourly basis. (ECF No. 54-1 at 36). As a function of their
working arrangement, Duke provides Guidant with office space
in Duke facilities in North Carolina and Ohio. (ECF No. 54-1
at 7). Guidant uses equipment provided by Duke at some of
these facilities. (ECF No. 54-1 at 7).
purposes of hiring contingent workers to perform various
roles at Duke facilities, Guidant staff work with Duke's
“hiring managers” to define the job duties and
requirements for new hires. (ECF No. 54-1 at 9 - 10, 13).
Guidant then liaises with various independent staffing
agencies, and the staffing agencies provide
candidates for openings. (ECF No. 54-1 at 11). Guidant
characterizes its work with staffing agencies as a
“collaborative effort.” (ECF No. 54-1 at 19).
does an initial screening of the candidates, then passes the
information along to Duke's hiring managers to make a
final determination. (ECF No. 54-1 at 11 - 12, 18). Once Duke
approves of a particular candidate or candidates, Guidant
sends out a “job order” to the relevant staffing
agencies. (ECF No. 54-1 at 12). Guidant is then responsible
for ensuring that the new contingent workers receive
necessary training from Duke staff. (ECF No. 54-1 at 32, 39).
must abide by Duke's policies, rules, and regulations.
(ECF No. 54-1 at 45). Contingent workers use Duke's
equipment, and wear Duke security badges. (ECF No. 54-1 at
46). Duke can require contingent workers to work overtime
hours. (ECF No. 54-1 at 46 - 47). Guidant periodically
follows up to check on Duke's level of satisfaction with
the contingent workers. (ECF No. 54-1 at 23).
requires each staffing agency to enter a form agreement; the
form agreements are generally the same for each agency, with
the exception of mark-up rates which differ from agency to
agency. (ECF No. 54-1 at 34). By the terms of these
agreements, staffing agencies must comply with the FLSA, and
Guidant randomly audits twenty percent of all new hires to
check compliance. (ECF No. 54-1 at 40 - 41). The results of
these audits are reported to Duke. (ECF No. 54-1 at 40 - 41,
agencies are also obligated to ensure that all contingent
workers are W-2 employees - not 1099 independent contractors.
(ECF No. 54-1 at 42). Guidant expects that staffing agencies
will pay contingent workers a salary. (ECF No. 54-1 at 52 -
53). However, it is left up to the staffing agencies to
determine the terms of a chosen worker's employment. (ECF
No. 54-1 at 13, 16). Guidant does not provide any instruction
in this respect. (ECF No. 54-1 at 37). It does not check to
make sure that contingent workers are guaranteed a set wage,
even if the workers do not work a full forty-hour week. (ECF
No. 54-1 at 55). It is expected that the staffing agency will
eat any shortfall that results from less than forty hours of
work being billed. (ECF No. 54-1 at 69 - 71). Duke and
Guidant do not consider the contingent workers to be their
employees. (ECF No. 54-1 at 20, 42, 73).
Duke or Guidant can have a contingent worker removed from
Duke's facilities at any time. (ECF No. 54-1 at 24, 37 -
38). Duke provides the day-to-day supervision of a contingent
worker, and can convert contingent workers into officially
recognized Duke employees. (ECF No. 54-1 at 39). Staffing
agencies cannot reassign a contingent worker to another
company without Duke's prior consent. (ECF No. 54-1 at
keeps a record of its contingent workers' time entries.
(ECF No. 54-1 at 21 - 23). Each worker logs his or her hours
on a timekeeping database maintained by Guidant; time is
allocated according to “cost codes” associated
with certain types of work performed for Duke. (ECF No. 54-1
at 24). Duke's management approves these entries for each
contingent worker, and may reject entries or require edits to
be made. (ECF No. 54-1 at 24 - 25). Once time entries are
approved by Duke, an invoice is generated and payment is made
to Guidant and the staffing agencies. (ECF No. 54-1 at 25).
Staffing agencies are paid for each hour of time approved by
Duke, and take a percentage off the top for service fees and
expenses. (ECF No. 54-1 at 46, 62). The same rate is paid by
Duke for all hours billed. (ECF No. 54-1 at 68).
contingent worker seeks a wage increase, the request is first
made to his or her respective staffing agency, which passes
the request on to Guidant. (ECF No. 54-1 at 27 - 28). If
Guidant determines that such a request may be reasonable, it
works with the staffing company on a proposal to present to
Duke. (ECF No. 54-1 at 27 - 30). The decision to grant a
request is within the sole discretion of Duke management.
(ECF No. 54-1 at 30). Guidant, however, can deny a request on
its own accord. (ECF No. 54-1 at ...