Thomas v. Waste Pro USA, Inc.

ALFRED W. THOMAS, Plaintiff, v. WASTE PRO USA, INC. and WASTE PRO OF FLORIDA, INC., Defendants.

Case No: 8:17-cv-2254-T-36CPT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

September 30, 2019

ORDER

This matter comes before the Court on Defendant Waste Pro USA, Inc.'s Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. 185), Plaintiff's response thereto (Doc. 206), Defendant Waste Pro USA Inc.'s reply (Doc. 215), Waste Pro of Florida, Inc.'s Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. 187), Plaintiff's response thereto (Doc. 207), Defendant Waste Pro of Florida, Inc.'s reply (Doc. 218), Plaintiff's Amended Motion for Partial Summary Judgment and Incorporated Supporting Memorandum of Law (Doc. 197), Defendant Waste Pro USA, Inc.'s response thereto (Doc. 210), Defendant Waste Pro of Florida, Inc.'s response thereto (Doc. 211), and Plaintiff's reply (Doc. 221). Defendants both move for summary judgment and Plaintiff moves for partial summary judgment as to liability. Doc. 185, Doc. 187, Doc. 197.

The Court, having considered the motions, being duly advised in the premises and for reasons described herein, will deny Defendant Waste Pro USA, Inc.'s Motion for Summary Judgment (Doc. 185), will grant in part and deny in part Waste Pro of Florida, Inc.'s Motion for Summary Judgment (Doc. 187) and deny Plaintiff's Amended Motion for Partial Summary Judgment (Doc. 197).

I. BACKGROUND AND FACTS¹

This is a collective action filed pursuant to § 216(b) of the FLSA by Plaintiff Alfred W. Thomas ("Thomas" or "Plaintiff") pertaining to the pay of certain "Helpers" employed by Defendants Waste Pro USA, Inc. ("Waste Pro USA" or "WP USA"), and Waste Pro of Florida, Inc. ("Waste Pro of Florida" or "WP Florida") (collectively, "Defendants"), which alleges willful violations of the FLSA. Doc. 111 ¶¶ 1, 64, 72. Waste Pro USA is the parent company to various subsidiaries who provide professional solid waste collection and disposal and recycling services in nine states pursuant to various commercial, municipal, subscription or military contracts. Id. ¶ 23, Doc. 130 ¶ 23, Doc. 197-28 at 2; Doc. 213 ¶ 4. One of those subsidiaries is Waste Pro of Florida. Doc. 111 ¶ 23, Doc. 131 ¶ 23; Doc. 213 ¶ 4.

The Second Amended Complaint raises two causes of action: (1) violation of the FLSA by Defendants, jointly and severally, by failing to pay Plaintiff and other Helpers time and a half overtime premium pay when they worked more than forty hours per week, and (2) violation of the FLSA by Waste Pro USA by failing to pay Plaintiff and other Helpers time and a half overtime premium pay when they work more than forty hours per week. Doc. 111 ¶¶ 58-73.

A. Undisputed Facts

1. Company Structure

WP USA was founded by John J. Jennings, who is the Chairman of the Board and Chief Executive Officer ("CEO") of WP USA. Doc. 197-27 at 7:8-9; Doc. 197-30 at 2. Jennings is also the CEO of WP Florida. Doc. 206-1 at 3211-14. WP USA operates in nine states, including Florida, Georgia, North Carolina, South Carolina, Alabama, Mississippi, Louisiana, Arkansas, and Tennessee. Doc. 197-30 at 2. WP USA is "one of the largest, full-service, vertically integrated waste management companies." Id. at 3.

Regional Vice Presidents act as the CEOs of their area, but report to Jennings. Doc. 206-1 at 32:8-14. There are ten Regional Vice Presidents. Doc. 197-30. The CEO of WP USA hires Regional Vice Presidents and the decision to fire a Regional Vice President is made by Jennings or the Board of Directors of WP USA. Doc. 213 ¶¶ 8-9. Jennings meets with the Regional Vice Presidents roughly three times per year to discuss the status of the regions. Id. ¶ 13. Once every week, the Regional Vice Presidents conduct a conference call to discuss the needs and success of their regions. Id. ¶ 16.

Each subsidiary has its own Human Resources Manager. Doc. 205 ¶ 17. Some subsidiaries, including WP Florida, has a Human Resources Manager for each region. Id. ¶ 18.

WP Florida consists of five regions: southeast, central, north, southwest, and coastal. Doc. 205 ¶ 1. Each region is made up of divisions. Id. ¶ 3. Each region within WP Florida is managed by a Regional Vice President, and each division is managed by a Division Manager, who reports to the Regional Vice President. Id. ¶¶ 2, 4. Depending on the size of the division, there is also an Operations Manager or Site Manager who reports to the Division Manager and who overseesRoute Supervisors or Route Managers. Id. ¶¶ 5, 6. Helpers report to Route Supervisors or Route Managers. Id. ¶ 7.

Division Managers have the authority to determine schedules for Helpers and staff the routes. Id. ¶ 8. The number of hours worked by a Helper each day depends on his or her assigned route. Id. ¶ 11. Additionally, Division Managers have the authority to train and evaluate Helpers, although WP USA provides guidelines related to training. Id. ¶¶ 8, 16. Because Helpers are laborers, most training occurs on the job, although Helpers receive limited classroom training. Id. ¶¶ 13-14.

The rate of pay for Helpers varies among divisions and regions. Id. ¶ 9. Some divisions start all Helpers at the same pay rate, whereas others set Helpers' rates based on experience. Id. ¶ 10. WP USA maintains employees' 401(k)s and health insurance plans. Id. ¶ 19.

WP USA and WP Florida are indisputably related to a certain extent. Defendants urge in this proceeding that WP USA provides guidance and administrative support to its subsidiaries, including WP of Florida. See generally Doc. 210. Banasiak testified during his deposition with respect to various forms of support provided by WP USA, including human resources support as needed with respect to specific questions or issues (Doc. 206-1 at 58:19-59:12), provision of a timekeeping system, ADP (Id. at 62:11-63:5), and provision of an intranet site that hosts forms and data that can be used by the subsidiaries (Id. at 63:7-15).

WP USA also has a corporate safety department, accounting department, maintenance department, and sales department. Id. at 66:7-16, 69:14-16. The WP USA safety department provides information related to changes in safety information, such as changes in Department of Transportation regulations, via posting documents with such information on the intranet. Id. at 70:19-22, 71:1-8. The maintenance department is responsible for changes in equipment andservice for equipment. Id. at 72:15-16. For example, maintenance would advise of changes in how often oil should be changed for trucks. Id. at 72:15-23. The WP USA maintenance department has a record of the vehicles that are purchased by the regions. Id. at 73:25-74:9. The WP USA accounting department evaluates financial results and performance. Id. at 76:16-17. The financial results handled by the WP USA accounting department are generated by each region by a regional controller. Id. at 77:3-5. The WP USA sales department is a support mechanism for the field and does not generate any sales. Id. at 79:3-6.

Plaintiff argues that WP USA and its subsidiaries are a single enterprise and WP USA is a joint employer of the Helpers. See generally Doc. 197. Plaintiff relies on evidence that WP USA advertises itself as a waste removal company, like its subsidiaries (Doc. 197-30), and Jennings is on the Board of Directors of WP USA, is CEO of each subsidiary, and delegates management to the Regional Vice Presidents, some of whom oversee operations across several different subsidiaries (Doc. 197-24, Doc. 197-27 at 7:7-9, 17:14-18, Doc. 197-28 at 2). Additionally, payroll for the subsidiaries is handled locally, but managed by WP USA. Doc. 197-35. Moreover, the subsidiaries may use documents with the WP USA logo on them and, even if they have the power to change various documents, such as an employee handbook, Defendants present no evidence that any region actually made any changes. Doc. 197-41, Doc. 206-1 at 17-19, Doc. 206-14, Doc. 206-15, Doc. 206-16, Doc. 206-17. Plaintiff also relies on evidence that employees applied for Helper positions through the WP USA webpage, receive documents purportedly from WP USA, and understand themselves to be WP USA employees. Doc. 206-14 ¶¶ 5-8; Doc. 206-15 ¶¶ 1-7, Doc. 206-16 ¶¶ 1-6, Doc. 206-17 ¶¶ 1-5.

2. Pay Methods

Helpers are employees who load garbage, recycling, or other solid waste into a rear-load truck. Doc. 197-2; Doc. 206-1 at 30:22-31:1. Helpers in WP Florida are paid a day rate, although the starting pay differs by division and is set by the division manager. Doc. 206-1 at 181:21-183:9-14. Most Helpers employed by WP USA subsidiaries are paid via the day rate method, although some are paid on an hourly basis. Doc. 197-4. A day rate is intended to compensate an employee for his or her work that day, regardless of the number of hours worked. Doc. 197-1 at 8, Doc. 197-10 at 61:9-17. More specifically, divisions have routes to collect solid waste, and Helpers have a daily task of picking up a route, and receive a day rate for picking up that daily task. Doc. 206-1 at 91:12-19. Additionally, Helpers also receive non-discretionary bonuses if they assist on other routes or meet the criteria for performance bonuses. Id. at 95:24-96:2, Doc. 197-18; Doc. 213 ¶¶ 2-3.

With respect to half-day rates, these were paid by various WP USA subsidiaries, including WP Florida, until 2017. Doc. 206-1 at 124:1-125:25. The half day rate was not paid anywhere in WP Florida after August 24, 2017. Doc. 186-1 ¶ 14.

Overtime for day rate workers in WP Florida is calculated by multiplying each hour worked over 40 hours by one-half of the workers' regular rate, which is calculated by dividing the total compensation by the total hours worked. Doc. 197-1 at 9. The workers' total compensation for the week includes their day rate, their half day rate, and non-discretionary bonuses. Doc. 187 at 3.

B. Disputed Facts as to Pay Method

Regional Vice President for the West Coast of Florida, Keith Banasiak,...