United States District Court, D. Oregon
A. RUSSO UNITED STATES MAGISTRATE JUDGE
Karen Huyck, brings this action to recover unpaid wages
allegedly owed by defendants Sherrie's Jewelry Box, Inc.
and Sherrie Schilling-Devaney pursuant to the Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 206, 207, and
Or. Rev. Stat. §§ 653.025, 653.261, 652.120, and
652.610. Defendants assert that neither defendant employed
plaintiff, but instead she worked as an independent
contractor. Plaintiff previously moved for summary judgment
arguing she was not an independent contractor and asserting
the Office of Administrative Hearing for the Employment
Department issued an order finding that plaintiff was an
employee and not an independent contractor of defendant
Sherrie's Jewelry Box, Inc. However, the order did not
have preclusive effect on these proceedings and the Court
denied summary judgment. Plaintiff again moves for summary
judgment arguing she is, in fact, an employee; that defendant
Sherrie Schilling-Devaney is plaintiff's statutory
employer; plaintiff is entitled to FLSA minimum-wage and
overtime claims; and plaintiff is entitled to Oregon
unpaid-wage, minimum-wage, overtime, and wrongful deduction
claims. Plaintiff also moves for summary judgment on
defendants' affirmative defenses and counterclaim.
careful review of the record demonstrates there are
significant genuine issues of material fact in dispute, and
that the parties rely primarily on their own assertions
regarding the facts that are material to the legal analysis
in this case. For the reasons stated below, the motion for
summary judgment is denied.
Independent Contractor Versus Employee
purposes of both state and federal wage-and-hour claims, the
analysis for determining whether an employment or independent
contractor relationship exists is the same. Mathis v.
Hous. Auth. of Umatilla Cty., 242 F.Supp.2d 777, 783 (D.
FLSA defines an “employee” broadly as “any
individual employed by an employer.” 29 USC §
203(e)(1). Accordingly, “employer”
“includes any person acting directly or indirectly in
the interest of an employer in relation to an
employee.” 29 USC § 203(d). The FLSA defines
“employ” as to “suffer or permit to
work.” 29 USC §§ 203(g). The terms
“suffer or permit” are interpreted as “with
the knowledge of the employer.” Forrester v.
Roth's IGA Foodliner, Inc., 646 F.2d 413,
414 (9th Cir.1981). The FLSA is to be construed expansively
in favor of coverage to accomplish the goals of this remedial
legislation. Tony & Susan Alamo Found. v. Secretary
of Labor, 471 U.S. 290, 296-97 (1985).
non-exhaustive list of factors to distinguish between an
employee and an independent contractor include:
1) the 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
4) whether the service rendered requires a special skill;
5) the degree of permanence of the working relationship; and
6) whether the service rendered is an integral part of the
alleged employer's business.
The presence of any individual factor is not dispositive of
whether an employee/employer relationship exists. Such a
determination depends upon the ...