Moses v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.

Background

The plaintiffs were former Griffin employees who worked as traffic flaggers at Con Edison worksites. They asserted claims including unpaid minimum wages, overtime, spread-of-hours pay, withheld wages, unreimbursed business expenses, wage-statement and notice violations under the Fair Labor Standards Act and New York labor law, and breach of contract. The opinion addresses Con Edison’s motion for summary judgment on the first ten counts of the consolidated amended complaint, which were premised on Con Edison’s alleged joint employment of the plaintiffs alongside Griffin. The defendants also moved to strike portions of the plaintiffs’ factual counterstatement and supporting declarations.

Con Edison and Griffin operated under a blanket purchase agreement under which Griffin provided flagging services. Griffin recruited, hired, trained, paid, and provided benefits to the flaggers. Con Edison requested flagging services, provided some worksite direction and equipment, reviewed documentation supporting Griffin’s invoices, and sometimes complained to Griffin about individual flaggers. Griffin stopped providing flagging services to Con Edison in June 2018, after which Con Edison contracted with another vendor.

Motion to Strike

The defendants asked the court to strike portions of the plaintiffs’ submissions as irrelevant, inadmissible hearsay, improper opinion or conclusions, or improper legal argument. The court stated that motions to strike are generally disfavored and that the defendants faced a heavy burden. Because the court did not rely on the challenged statements and representations in deciding summary judgment, it found the motion to strike academic and denied it.

Formal Control

The court applied the formal-control test for joint employment. That test examines whether the alleged joint employer had the power to hire and fire employees, supervised and controlled their schedules or working conditions, determined their pay rate and method of payment, and maintained employment records.

On hiring, the court found no evidence that Con Edison participated in hiring. Griffin independently handled recruitment, applications, interviews, and onboarding. On firing, Con Edison had authority under the agreement to ask Griffin to remove a flagger from a Con Edison worksite. The court found that this authority generally did not amount to the power to fire, but concluded that one instance in which Con Edison recommended terminating a flagger provided some evidence favoring the plaintiffs on that factor.

The court found that the work-schedule and conditions factor favored the plaintiffs. Although some Con Edison directions merely set permissible worksite standards, the evidence supported an inference that Con Edison dictated aspects of the flaggers’ schedules by sending them to Con Edison yards to wait for assignments, directing them to travel between worksites, and otherwise controlling aspects of their work.

The pay factor favored Con Edison. Griffin used the flaggers’ sign-off sheets, along with its own adjustments for other compensable activities, to calculate the flaggers’ hours and pay. Con Edison reviewed the sheets to audit Griffin’s invoices, but did not calculate the flaggers’ hours or provide those hours to Griffin for payroll purposes. The court also found that Con Edison did not maintain employment records in the relevant sense because it kept the sheets for quality-control and invoice-audit purposes rather than payroll purposes.

Balancing the formal-control factors, the court found that the pay and recordkeeping factors weighed against joint employment. The work-schedule factor and, to a much lesser extent, the hiring-and-firing factor favored the plaintiffs. Overall, the court concluded that Con Edison did not exert formal control over the flaggers.

Functional Control

The court also applied the functional-control test, which considers the use of the alleged joint employer’s premises and equipment, whether the contractor’s business could shift as a unit, whether the work was a discrete line-job integral to the alleged joint employer’s business, whether the work could be transferred between contractors without material changes, the degree of supervision, and whether the workers worked exclusively or predominantly for the alleged joint employer.

The premises-and-equipment factor favored the plaintiffs. Although the flaggers worked on public roads and sidewalks near Con Edison worksites, the court treated those locations as shared premises because the work was performed in the only physically possible area adjacent to Con Edison’s worksites. Con Edison also supplied traffic cones and sometimes other equipment.

The remaining functional-control factors largely favored Con Edison. The agreement was not exclusive, Con Edison used other vendors, and Griffin provided security services to other entities. The court found that flagging was a specialized service rather than an integral part of Con Edison’s production process. It also found that the work could be transferred to another vendor without material changes, and that the plaintiffs’ evidence of supervision was insufficient to overcome the other factors. The exclusivity factor did not support joint employment because Griffin was not barred from serving other customers, even though the plaintiffs alleged that Griffin depended heavily on Con Edison’s contract.

Two functional-control factors favored the plaintiffs: use of Con Edison’s premises and equipment, and supervision. Four factors favored Con Edison. The court concluded that the two factors favoring the plaintiffs were insufficient to establish a joint-employment relationship.

Disposition

The court granted defendants’ motion for summary judgment. It also denied defendants’ motion to strike. The opinion does not add a prejudice qualifier to either disposition. Judge Andrew L. Carter, Jr. directed the Clerk of Court to terminate the specified motions.