Jury could find "fit model" was an "employee" under FLSA

This case explores when someone is an "employee" under the Fair Labor Standards Act, which requires that management pay their employees minimum wage and overtime when appropriate. These issues get litigated when management says the worker is not really an employee but an independent contractor. The Court of Appeals finds the jury could rule that plaintiff was an employee.

The case is Agerbrink v. Model Service LLC, a summary order issued on September 24. Plaintiff was a "fit model" in that she would be hired based on her body proportions to help clothing manufacturers test the fit of their designs. Plaintiff entered into a three-year agreement with Model Service, which scheduled her for meetings with clothing companies when they contacted Model Service for that purpose. The question is whether plaintiff was a model service "employee" under the FLSA. We answer that question largely by determining if management exercises sufficient control over the plaintiff. If no significant control, then the plaintiff was an independent contractor. We also consider other factors under the "totality of the circumstances" test, but "control" seems to be a dominant consideration.

The district court dismissed the case, but the Court of Appeals (Katzmann, Wesley and Bianco) reinstates it. The Court opens its analysis with this: "While no single element of Agerbrink’s and MSA’s relationship is dispositive to the FLSA inquiry, there exist genuine disputes regarding Agerbrink’s control over her work schedule, whether she had the ability to negotiate her pay rate, and, relatedly, her ability to accept or decline work. These disputes are significant as they relate both to the 'degree of control' MSA exerted over Agerbrink and Agerbrink’s 'opportunity for profit or loss.'” The Court cites Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1989), for this proposition. A more recent case (also cited in this ruling) is Barfield v. N.Y.C. Health & Hospitals Corp., 537 F.3d 132 (2d Cir. 2008).

Plaintiff wins the appeal because she claims that defendant coordinated all of her scheduling with apparel clients and maintained her master schedule. She also asserts "she had no control over negotiating the amount an apparel company would pay for her services and . . . she was discouraged from discussing compensation with apparel companies." As "independence to determine her schedule and income are key inquiries to determining 'whether, as a matter of economic reality' Agerbrink 'depended upon' MSA’s 'business for the opportunity to render service' or was 'in business for' herself." As the jury may find that plaintiff was an MSA employee and not a contractor, the case is remanded for trial.