United States District Court, W.D. Wisconsin
TERIANA JONES and BETHANY MORRISSEY, on behalf of themselves and a class of employees and/or former employees similarly situated, Plaintiffs,
CRUISIN' CHUBBYS GENTLEMEN'S CLUB, EDGE OF THE DELLS, INC., TIMOTHY ENTERPRISES, LLC, KENNY'S FUTURE, LLC, LIVING ON THE EDGE CAMPGROUND & GO-KARTS, INC., PTB, INC., SOUTHERN HEIGHTS, LLC, TIMOTHY D. ROBERTS, KENNETH C. ROBERTS, and LANTZ RAY ROBERTS f/k/a THOMAS LANTZ DOUGLAS, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Teriana Jones and Bethany Morrisey are representing a class
of exotic dancers who contend that all of the defendants
collectively are plaintiffs' joint employer and have
failed to pay them in accordance with the Fair Labor
Standards Act and state law. Two motions are before the
court: (1) a motion for summary judgment filed by several of
the defendants on the ground that they do not have an
employment relationship of any kind with any of the class
members, Dkt. 139; and (2) plaintiffs' motion for partial
summary judgment on the issue whether all of the dancers
qualify as employees rather than independent contractors,
Dkt. 139. For the reasons discussed below, the court will
grant these defendants' motion for summary judgment and
deny plaintiffs' motion. The case will proceed against
the individual defendants (Timothy Roberts, Kenneth Roberts,
and Lantz Ray Roberts) and the two remaining entity
defendants (Cruisin' Chubbys Gentlemen's Club, PTB,
Defendants' motion for summary judgment
FLSA applies only to an “employer.” 29 U.S.C.
§ 216(b) (“Any employer who violates the [FLSA]
shall be liable to the employee or employees
affected.”). In their motion for summary judgment,
defendants Edge of the Dells, Inc., Timothy Enterprises, LLC,
Kenny's Future, LLC, Living on the Edge Campground &
Go-Karts. Inc., and Southern Heights, LLC contend that they
do not qualify as an employer under the FLSA, so they should
be dismissed from the case. I will refer to this group as
“the moving defendants.” Plaintiffs concede that
Southern Heights should be dismissed, Dkt. 128, at 2, so the
court will grant the moving defendants' motion as to that
FLSA includes a definition of “employer, ” but it
is somewhat circular and not particularly helpful:
“‘Employer' includes any person acting
directly or indirectly in the interest of an employer in
relation to an employee.” 29 U.S.C. § 203(d).
Notably, § 203(d) uses the word it is defining in the
definition. So it is really less of a definition and more of
a statement that an employee can have more than one employer.
law provides more guidance. In determining whether multiple
entities or individuals qualify as an employer of the same
employee under the FLSA, the key question is whether each
defendant exercised control over the worker. Moldenhauer
v. Tazewell-Pekin Consolidated Communications Ctr., 536
F.3d 640, 644 (7th Cir. 2008) (“[F]or a joint-employer
relationship to exist [under the Family and Medical Leave
Act, which uses the same standard as the FLSA], each alleged
employer must exercise control over the working conditions of
the employee.”). See also Teed v. Thomas &
Betts Power Solutions, LLC, 711 F.3d 763, 764 (7th Cir.
2013) (“[A] parent corporation is not liable for
violations of the Fair Labor Standards Act by its subsidiary
unless it exercises significant authority over the
subsidiary's employment practices.”); Reyes v.
Remington Hybrid Seed Co., 495 F.3d 403, 408 (7th Cir.
2007) (defendants may be joint employers when they exercise
“common control” over the employee). Courts
consider various factors when determining whether a defendant
had sufficient control over a worker, including whether the
defendant made hiring and firing decisions, determined work
schedules and daily working conditions, set the rate of pay,
and maintained employment records. Pope v. Espeseth,
Inc., 228 F.Supp.3d 884, 889 (W.D. Wis. 2017).
rely on three allegations in their brief to support a
conclusion that all of the defendants qualify as an employer
under the FLSA: (1) some of the dancers performed at
Edge-O-Dells Resort, a campground, bar, and restaurant that
is operated by defendant Edge of the Dells; (2) some of the
dancers were “encouraged to stay overnight and pay
rent” at a property owned by Timothy Enterprises; and
(3) the individual defendants own all of the entity
defendants. Dkt. 128, at 1-2. None of these allegations
provide a basis for treating defendants as a joint employer.
the allegation that some dancers performed at the resort, one
problem is that the court expressly limited the class and the
collective to performances at the Cruisin' Chubbys club,
Dkt. 101, at 11, so only the named plaintiffs could assert
claims related to performances at any other location. Another
problem is that two of the five dancers who plaintiffs cite
to support this allegation admit that they never performed at
the resort. Dkt. 130, ¶ 3 (“I never personally
worked at the campground.”); Dkt. 131, ¶ 6
(“I never personally experienced [dancing at the
resort].”). A third problem is that plaintiffs did not
cite any evidence disputing defendants' proposed finding
of finding of fact that the nude events at Edge-O-Dells
occurred before 2014. Dkt. 149, ¶ 41. This is a problem,
both because the class and collective are limited to the time
period after February 2014, Dkt. 101, at 16, and because the
statute of limitations for an FLSA violations is no more than
three years, 29 U.S.C. § 255(a), which would exclude the
claims of even the named plaintiffs.
even if the court disregards all of those problems,
plaintiffs' allegations about events at the resort do not
support a conclusion that the moving defendants are joint
employers because none of dancers allege that any of the
moving defendants directed them to perform at the resort or
otherwise exercised control over them. The dancers are either
silent about the issue, stating only that they
“participated” at events at the resort, Dkt.
128-1, at 2; Dkt. 128-2, at 2, or they say that “the
club” directed them to go there, Dkt. 132, ¶ 3.
None of them provide any facts supporting an inference that
one or more of the moving defendants had an employment
relationship with any of the dancers.
other two allegations do not require extended discussion. As
to the allegation that some of the dancers stayed at a
property owned by Timothy Enterprises, the declarations they
cite support a finding that the dancers stayed on the
property, but they provide no basis for a finding that
Timothy Enterprises owns the property. And even if it did own
the property, that would show only that the dancers and
Timothy Enterprises had a landlord-tenant relationship. It
would not show that Timothy Enterprises had any control over
the dancers' employment.
the allegation that the same individuals own the entity
defendants, even if that is true, it is not dispositive.
Again, the question is whether a defendant has control over a
plaintiff's working conditions. Plaintiffs cite no
authority for the view that common ownership by the same
individuals is sufficient to render otherwise separate
companies a joint employer.
bottom line is that plaintiffs have failed to show that there
is a genuine issue of material fact as to whether any of the
moving defendants employed them. The court will grant the
moving defendants' motion for summary judgment.
Plaintiffs' motion for ...