The opinion of the court was delivered by: Walls, District Judge
Plaintiffs, police officers with the City of New Brunswick, move for summary judgment and an award of unpaid overtime wages, liquidated damages, and attorneys' fees. The defendant City cross-moves to dismiss the complaint for failure to state a claim for relief. While these motions were pending, plaintiffs moved for temporary restraints and requested a hearing regarding the issuance of a permanent injunction. The court heard oral argument on May 16, 2000.
This action stems from the plaintiffs' work at "extra-duty jobs," which arise when a non-governmental outside vendor or contractor seeks a police officer for services. The defendant City oversees this program: it maintains an "Extra Duty Job Coordinator" who takes requests from outside vendors and assigns officers who are interested in the work. Plaintiffs are paid by the City for these overtime assignments.
The present dispute centers on the time of payment of officers for extra-duty jobs. The plaintiffs contend that they have been forced to wait weeks and sometimes months before being paid for extra-duty assignments. They assert that such delay violates the Fair Labor Standards Act (FLSA) of 1938, 29 U.S.C. § 201 et seq. Presently, they do not challenge any other aspect of their pay arrangements. Though their initial complaint also asserted violations of the minimum wage standards of the FLSA, plaintiffs do not now press these claims.
1. Conversion to Motion for Summary Judgment
As said, the City styled its motion as one to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). However, the defendant's argument rests largely on the certifications of New Brunswick Director of Police Michael Beltranena, Jr. and Detective David Martella, Extra-Duty Coordinator. See Def. Br. Exh. A; Def. Reply Br. Exh. A.
Fed. R. Civ. P. 12(b) directs:
If, on a motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Fed. R. Civ. P.] 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion made pertinent to such a motion by Rule 56.
This court has complete discretion to accept such materials beyond the pleadings. Morse v. Lower Merion School Dist., 132 F.3d 902, 905 n.3 (3rd Cir. 1997); Wright & Miller, Federal Practice and Procedure: Civil 2d § 1366 at 491 (1990). However, should it so choose, the court is required to convert the motion to one for summary judgment and provide the parties notice and a reasonable opportunity to present all relevant material. See, e.g., In re Rockefeller Center Properties Sec. Litig., 184 F.3d 280, 287-289 (3rd Cir. 1999); Rose v. Bartle, 871 F.2d 331, 339-343 (3rd Cir. 1989).
Here both parties have submitted extra-pleading materials; the plaintiffs respond to the City's motion to dismiss with the Supplemental Affidavit of Jeff Dockhorn.
The court finds that consideration of these materials will facilitate the resolution of this action, particularly the issue, whether plaintiffs on extra-duty assignment are "employees" of defendant within the meaning of the FLSA. Accordingly, the court by letter on April 27, 2000 notified the parties that the defendant's Rule 12(b)(6) motion would be converted to one for summary judgment pursuant to Fed. R. Civ. P. 56, and authorized both sides to submit additional evidence.
2. Summary Judgment Standard
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson, 477 U.S. at 248. The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 318 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. See Sound Ship Building Co. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3rd Cir. 1976), cert. denied, 429 U.S. 860 (1976). At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. See Wahl v. Rexnord, Inc. 624 F.2d 1169, 1181 (3rd Cir. 1980).
3. Whether Plaintiffs are "Employees" Under the FLSA
The defendant City first contends that, during the times plaintiffs worked at extra-duty job assignments, they were independent contractors in relation to it. As non-employees, plaintiffs would not be protected by the FLSA.
The definitions of "employee" and "employer" in the federal statute are notoriously circular: 29 U.S.C. § 203(e)(1) defines "employee" as "any individual employed by an employer," and § 203(d) in turn explains that an "employer" "includes any person acting directly or indirectly in the interest of an employer in relation to an employee. . . ." Finally, "employ" is defined as "to suffer or permit to work." 29 U.S.C. §203(g).
Faced with this lack of clarity, defendant turns to the Tenth Circuit decision, Baker v. Flint Eng'g, 137 F.3d 1436 (10th Cir. 1998), which deployed an "economic realities" test to determine if individuals were employees under the FLSA. Its focus was on "whether the individual is economically dependent on the business to which he renders service . . . or is, as a matter of economic fact, in business for himself." Id. at 1440 (citations to Tenth Circuit decisions omitted). Back home, the Third Circuit has adopted a test crafted by the Ninth Circuit, Donovan v. Sureway Cleaners, 656 F.2d 1368 (9th Cir. 1981), which weighed six "itemized factors" with an additional consideration:
1) [T]he degree of the alleged employer's right to control the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; 6) whether the service rendered is an integral part of the alleged employer's business. . . . In addition, Sureway Cleaners instructs that neither the presence nor absence of any particular factor is dispositive and that courts should examine the "circumstances of the whole activity," [citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)] and should consider whether, as a matter of economic reality, the individuals "are dependent upon the business to which they render service." Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376, 1382 (3rd Cir. 1985); see also Martin v. Selker Bros., Inc., 949 F.2d 1286, 1293 (3rd Cir. 1991) (citing DialAmerica).
It is clear that this court may not accept without further inquiry the defendant's assertion that extra-duty plaintiffs were independent contractors: "Where the work done, in its essence, follows the usual path of an employee, putting on an `independent contractor' label does not take the worker from the protection of the Act." Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947).
The court acknowledges the defendant's reliance on Gene Anderson Hierarchy of Agents v. Allstate Life Ins. Co., 2 F. Supp. 2d 688 (E.D. Pa. 1998). See Def. Br. at 3. There the Eastern District of Pennsylvania cited Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), for the guide that "where [a] statute does not helpfully define the term `employee,' courts are to use a common-law agency test to determine employee status." Gene Anderson, 2 F. Supp. 2d at 693. Yet the Darden decision reached only the definition of "employee" under ERISA -- and expressly held that the comparatively expansive definition under the FLSA "stretches the meaning of `employee' to cover some parties who might not qualify as such under a strict application of traditional agency law principles." 503 U.S. at 326-27. Because both the Supreme Court and the Third Circuit have addressed the FLSA definition of "employee," this court does not share the defendant's reliance on a common law agency approach. See, e.g., Rutherford, 331 U.S. 722; DialAmerica, 757 F.2d 1376.
Factually, the defendant argues that when the plaintiffs serve at extra-duty assignments, they are under the control of outside entities, and the New Brunswick Police Department has "no say in the length of the employment, the location of the employment, nor . . . the number of hours required by the assignment. . . . The Department merely provides the personnel needed." Def. Br. at 1; see also Beltranena Cert. ¶¶ 2, 5, 6. It is undisputed that no formal contract is entered between the City and the outside vendor. Def. Br. at 1. Further, the City contended at oral argument that the outside vendors, not the Police Department, control the existence, duration, and type of extra-duty assignments.
Plaintiffs counter that the City is "inextricably involved" in the extra-duty job assignment process: when an outside vendor or contractor seeks an officer for services, it contacts the Police Department and a police personnel Extra-Duty Job Coordinator locates an available officer from a master list maintained. Dockhorn Suppl. Aff. ¶ 3. When an officer agrees to fulfill an extra-duty assignment, the officer first reports to the Desk Sergeant and then travels in uniform with full gear and active radio to the off-site location. "This is mandatory, since if there is an accident or a robbery in the officer's location, even though on extra-duty status, he must respond to the scene." Id. Further, another police personnel, a Road Sergeant, visits extra-duty officers during their shifts to ensure that they are uniformed and performing their duties, and that the job is in compliance with local ordinances. Id. ¶ 4. The plaintiffs raise two additional points to demonstrate the City's level of involvement. First, they claim that pursuant to New Brunswick Police Department General Order No. 3.10(1)(a)(5), officers working extra-duty jobs are considered to have "on-duty" status. Id. ¶ 3. Second, they evidence that for each hour an officer works at extra-duty, the City deducts a portion of the officer's pay as "administrative costs." The City's "cut" has increased, since late 1999, from $2.00 per hour to $4.00 and, most recently, to $9.00 per hour. And finally, the City admitted at oral argument that the plaintiffs are police officers "24 hours a day," and that should an officer be injured during an extra-duty assignment, he or she would likely be eligible for workers' compensation benefits.
Given such evidence, the City of New Brunswick may not avoid the requirements of the FLSA by claiming that extra-duty officers are not its employees. This court rejects the contention that uniformed and armed police officers, supervised (even minimally) by Police Department personnel, given assignments and paid by the Police Department, metamorphose into independent contractors for the period of ...