Ramon Valle v. Ceres Environmental Services, Inc. ( 2022 )

USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 1 of 23
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12020
____________________
RAMON VALLE,
Individually and on behalf of others similarly
situated,
YASMAUY GARCIA,
FRANCISCO SEGUI,
GABRIEL SANTINI,
DANIEL PEREZ,
ABBY MADRID,
Plaintiffs-Appellants,
versus
CERES ENVIRONMENTAL SERVICES, INC.,
a Minnesota corporation,
ENVIRONMENTAL RESTORATION GROUP
OF SOUTH FLORIDA, LLC,
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 2 of 23
2 Opinion of the Court 21-12020
d.b.a.
Environmental Restoration Group, LLC,
Defendants-Appellees,
AA AND K RESTORATION
GROUP, LLC,
a Florida Limited Liability Company,
ALFRED MILLER,
Individually,
KATHERINE M. BISCARDI,
Individually,
et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-20873-KMM
____________________
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER,
Circuit Judges.
WILLIAM PRYOR, Chief Judge:
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 3 of 23
21-12020 Opinion of the Court 3
This appeal concerns whether Ceres Environmental Ser-
vices and its subcontractor, Environmental Restoration Group,
were employers of a group of disaster-relief workers under the Fair
Labor Standards Act. Because the record supports the reasoning of
the district court that the workers did not economically depend on
Ceres or Environmental Restoration Group and because the work-
ers forfeited their remaining challenges to the judgment, we affirm.
I. BACKGROUND
Ceres, which describes itself as “one of the world’s largest
. . . disaster recovery groups,” contracted with Jackson County,
Florida, to provide disaster-relief services if a natural or man-made
disaster occurred between 2015 and 2019. (Capitalization re-
moved.) Under that agreement, upon notification by the County,
Ceres would “mobilize equipment and personnel to the designated
location[s] within forty-eight . . . hours” through subcontractors to
provide disaster-recovery services. The agreement also provided
that all work performed to fulfill the contract should comply with
applicable laws, including the Fair Labor Standards Act, 29 U.S.C.
§ 201. The County notified Ceres of its need for disaster relief ser-
vices under the contract in response to Hurricane Michael.
Ceres subcontracted with Environmental Restoration
Group to provide disaster-relief services. The sole member of the
Group is Jade Smith. The Group obtained a subcontract with Ceres
through Smith’s personal relationship with Stephen Leighton, who
knew employees of Ceres. Under its subcontract with Ceres, the
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 4 of 23
4 Opinion of the Court 21-12020
Group provided ten crews of workers to the Hurricane Michael
project.
The Group then subcontracted with AA & K Restoration
Group to provide a crew of workers and the machinery to support
that crew to the Hurricane Michael project. AA & K has two mem-
bers, Alfred Miller and Katherine Biscardi. AA & K never con-
tracted with Ceres. AA & K submitted invoices to the Group for
payment.
AA & K hired a crew of several workers, Ramon Valle, Yas-
many Garcia, Francisco Segui, Gabriel Santini, Daniel Perez, and
Abby Madrid, to fulfill its contract with the Group. AA & K re-
cruited, negotiated pay rates with, and paid these workers directly.
AA & K also supplied the equipment used by the workers and as-
signed workers to particular equipment. AA & K did not pay the
workers all the wages they were owed.
Ceres and AA & K each had distinct roles in the Hurricane
Michael recovery project. Ceres was the general contractor and
employed a project manager who oversaw the entire disaster-relief
effort. The project manager would assign subcontractor crews, like
the AA & K crew, to worksite areas based on the subcontractor’s
access to equipment and manpower. Ceres controlled access to the
worksite and could theoretically remove subcontractors. After the
subcontractor finished work on an assigned area, Ceres would in-
spect the job to ensure the work satisfied specifications before con-
sidering it complete and assigning the subcontractor a new area.
Ceres did not give direction to the workers on how to clear the
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 5 of 23
21-12020 Opinion of the Court 5
debris or supervise their regular work. The project manager would
also hold occasional safety meetings with the subcontractor crews.
And the heavy equipment used by subcontractors was subject to
Ceres’s approval and had to bear a Ceres logo placard. Apart from
the safety meetings and an inspection of a trailer provided by AA
& K for the workers, the workers did not interact with Ceres.
AA & K supervised and directed the workers’ efforts to clear
the areas assigned to the crew. AA & K provided all equipment that
the workers needed to perform their jobs and assigned workers to
pieces of equipment. Juan Carlos Lopez, a non-party AA & K rep-
resentative, was the direct supervisor of the workers when the
owners of AA & K were not present, and AA & K gave Lopez su-
pervisory authority. When Lopez or the owners of AA & K were
not present, Lopez put one of the workers in charge instead. When
the workers were paid, AA & K paid them by check or direct de-
posit.
Valle filed a complaint on behalf of a putative class alleging
a violation of the Fair Labor Standards Act for failure to pay wages
and overtime wages and for breach of contract. The complaint
named as defendants Biscardi, Miller, and AA & K. Valle amended
the complaint to name Ceres and the Group as defendants. Garcia,
Segui, Santini, Perez, and Madrid opted into the action. The work-
ers moved for conditional certification. The district court denied
that motion because the workers failed to show that they had a
reasonable basis to believe that there were similarly situated
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 6 of 23
6 Opinion of the Court 21-12020
workers apart from those who already opted in or that, if such
workers existed, they would desire to opt into this action.
Ceres and the Group moved for summary judgment, and
the workers moved for partial summary judgment. The workers,
Ceres, and the Group all argued that they were entitled to a sum-
mary judgment on whether Ceres and the Group were joint em-
ployers of the workers. The workers argued in their motion for
summary judgment and in their responses to Ceres’s and the
Group’s motions that Ceres and the Group were their joint em-
ployers, but they focused almost exclusively on their relationship
with Ceres. The workers argued that each factor in the eight-factor
framework for assessing joint-employment claims favored a find-
ing of joint employment. Ceres and the Group argued that each of
the factors weighed against a finding of joint employment.
Ceres and the Group also argued that they were entitled to
a summary judgment on the breach-of-contract claim. The Group
argued that none of the workers ever had a contract with the
Group or met with the Group or any of its representatives and that
there were no facts in the record supporting the allegation that the
workers contracted with the Group. Ceres likewise argued that no
contract between Ceres and the workers existed and that no evi-
dence could support any offer and acceptance between Ceres and
the workers. Ceres argued that the only contract that the workers
had was with AA & K, and that the workers did not include a claim
for unjust enrichment or quantum meruit, which it argued are dis-
tinct causes of action under Florida law.
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 7 of 23
21-12020 Opinion of the Court 7
The workers responded by arguing that they had a contract
implied in fact. The workers again focused their arguments on their
relationship with Ceres. They argued that because all the work
they performed “was done in furtherance of the contractual obli-
gations” of Ceres to the County, a contract must be imputed be-
cause they performed work “under circumstances in which [Ceres,
the Group, and the workers] . . . underst[ood] . . . compensation
[would] be paid.”
The district court entered summary judgment in favor of
Ceres and the Group. The district court concluded that Ceres and
the Group had established that AA & K supervised the work of the
workers, directed their activities, structured their chain of com-
mand, and set their hours, and that Ceres and the Group did not
supervise or direct the workers. The district court also concluded
that Ceres and the Group played no role in recruiting the workers
and that Ceres had only the right to terminate subcontractors, not
to fire specific workers. The district court explained that Ceres and
the Group had no power to set the pay rates or methods for the
workers and did not pay the workers directly. It also explained that
Ceres did have control over access to the worksite. But it concluded
that the workers did not perform a specialty job integral to the
function of Ceres or the Group. Based on those facts, the district
court concluded that Ceres and the Group were not the workers’
employers under the Fair Labor Standards Act.
The district court next determined that the workers had no
contract with Ceres or the Group. The district court explained that
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 8 of 23
8 Opinion of the Court 21-12020
Ceres and the Group presented undisputed evidence that there was
no contract between them and the workers. And the district court
explained that Ceres and the Group presented undisputed evidence
that all parties expected AA & K to pay the workers.
After the district court entered a summary judgment, Bis-
cardi filed a suggestion of bankruptcy, and AA & K and Miller filed
a notice of acceptance with offer of judgment. Biscardi was dis-
missed as a defendant. And the workers accepted the offers of judg-
ment by AA & K and Miller. The district court then entered judg-
ment for the workers against AA & K and Miller. And the workers
then filed a timely notice of appeal. They appeal only the summary
judgment entered against them in favor of Ceres and the Group.
II. STANDARD OF REVIEW
We review summary judgments de novo, and “[w]e can af-
firm a grant of summary judgment on grounds other than those
relied upon by the district court.” Layton v. DHL Express (USA),
Inc., 686 F.3d 1172, 1175 (11th Cir. 2012).
III. DISCUSSION
We divide our discussion in three parts. First, we explain the
standard to determine whether Ceres and the Group were joint
employers of the workers. Second, we explain that the conclusion
of the district court that neither company was a joint employer of
the workers was correct. Third, we explain that the workers
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 9 of 23
21-12020 Opinion of the Court 9
forfeited their argument that they had a contract implied in fact
with Ceres or the Group.
A. The Standard This Court Uses to Evaluate the Workers’ Asser-
tion that the Companies Were Their Joint Employers.
The Fair Labor Standards Act provides that an employer is
“any person acting directly or indirectly in the interest of an em-
ployer in relation to an employee,” and that an entity is an em-
ployer if it “suffer[s] or permit[s]” a person to work. 29 U.S.C.
§ 203(d), (g). To determine whether an entity is an employer “we
ask if, as a matter of economic reality, the individual is dependent
on the entity.” Layton, 686 F.3d at 1175 (internal quotation marks
omitted). And, under the Act, a person may have more than one
employer as a matter of economic reality. Id. Whether there is
“joint employment . . . depends upon all the facts in the particular
case.” Id. (internal quotation marks omitted). We have developed
an eight-factor test that is guided by five principles for evaluating
whether an employment relationship exists under the Act. Id. at
1176–77. The parties agree this eight-factor test applies.
Before turning to our eight-factor test, we keep in mind the
five principles that have guided our use of the factors. “First, the
question . . . is not whether the worker is more economically de-
pendent on the independent contractor or the alleged employer”;
instead, the inquiry focuses only on the relationship “between the
worker and the . . . asserted . . . joint employer.” Id. at 1177 (em-
phasis added) (internal quotation marks omitted) (alteration
adopted). Second, no factor controls the outcome. Id. Third,
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 10 of 23
10 Opinion of the Court 21-12020
because the factors “are indicators of economic dependence[,]
. . . the weight of each factor depends on” how probative the factor
is of the worker’s economic dependence on the asserted joint em-
ployer. Id. (internal quotation marks omitted). Fourth, we do not
tally the factors up in a “mathematical formula” to determine the
victor. Id. at 1178 (internal quotation marks omitted). In other
words, the factors “offer[] a way to think about the subject of joint
employment and not an algorithm.” Id. at 1176 n.2 (quoting Reyes
v. Remington Hybrid Seed Co., 495 F.3d 403, 408 (7th Cir. 2007))
(alteration adopted). Fifth, we must focus on economic depend-
ence and not the common law of employment. Id. at 1178.
With those principles in mind, we turn to the eight factors.
First, we look to “[t]he nature and degree of control of the work-
ers.” Id. at 1176 (internal quotation marks omitted). Second, we
evaluate “[t]he degree of supervision, direct or indirect, of the
work.” Id. (internal quotation marks omitted). Third, we examine
“[t]he power to determine the pay rates or the methods of payment
of the workers.” Id. (internal quotation marks omitted). Fourth, we
determine whether the asserted joint employer has “[t]he right, di-
rectly or indirectly, to hire, fire, or modify the employment condi-
tions of the workers.” Id. (internal quotation marks omitted). Fifth,
we consider whether the asserted joint employer “[p]repar[es] [the]
payroll and . . . payment of wages.” Id. (internal quotation marks
omitted). Sixth, we consider the “ownership of the facilities where
work occurred.” Id. Seventh, we consider whether the worker
“perform[s] . . . a specialty job integral to the [asserted joint
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 11 of 23
21-12020 Opinion of the Court 11
employer’s] business.” Id. Finally, we “evaluate the relative invest-
ments” of the asserted joint employer “in equipment and facilities”
used by the workers. Id.
The district court supplemented the eight-factor test with a
regulation that has since been rescinded. The district court de-
scribed the law it applied as “rely[ing] on Eleventh Circuit prece-
dent, as supplemented by the . . . revised rule.” Although the dis-
trict court stated that “under the Eleventh Circuit’s test, which al-
lows for a broader definition of joint employment, the evidence
overwhelmingly establishes that Ceres and [the Group] are not
joint employers of” the workers, the district court also considered
the regulation in its discussion of three of the factors. The regula-
tion revised the standards for determining joint-employer liability
under the Fair Labor Standards Act and took effect on March 16,
2020. 85 Fed. Reg. 2820 (Jan. 16, 2020), codified at 29 C.F.R.
§ 791.1–3. The Southern District of New York vacated all the rele-
vant parts of the regulation before the district court entered judg-
ment. New York v. Scalia, 490 F. Supp. 3d 748, 796 (S.D.N.Y. Sept.
8, 2020). And on July 30, 2021, the Department of Labor issued a
final rule rescinding the regulation in full. 86 Fed. Reg. 40939, 40943
(July 30, 2021), (to be codified at 29 C.F.R. § 791). So, we will not
consider it in our review, and we will apply the eight-factor test
that the parties agree is the appropriate standard.
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 12 of 23
12 Opinion of the Court 21-12020
B. Ceres and Environmental Restoration Group Were Not
Employers of the Workers under the Correct Standard.
We divide our application of the correct standard in two
parts. First, we explain that the workers have forfeited their argu-
ment that they were employed by the Group. Second, we address
each of the eight factors and conclude that Ceres was not a joint
employer of the workers.
1. The Workers Forfeited Their Argument that They Were Em-
ployed by the Group.
Although the Group made no arguments on appeal, we con-
clude that the workers forfeited their argument that the Group was
their employer. See Yellow Pages Photos, Inc. v. Ziplocal, LP, 795
F.3d 1255, 1282 n.13 (11th Cir. 2015). In the workers’ initial brief,
they do not address their relationship with the Group as to “[t]he
nature and degree of [the Group’s] control of the workers”; “[t]he
power [of the Group] to determine the pay rates or the methods of
payment of the workers”; the Group’s “right, directly or indirectly,
to hire, fire, or modify the employment conditions of the workers”;
whether the Group “[p]repar[es] [the] payroll and . . . payment of
[the workers’] wages”; the Group’s “ownership of the facilities
where work occurred”; or whether the workers “perform . . . a spe-
cialty job integral to the [Group’s] business.” See Layton, 686 F.3d
at 1176 (internal quotation marks omitted). Because the workers
did not raise arguments or identify record evidence pertaining to
those six factors, they are forfeited. See Singh v. U.S. Att’y. Gen.,
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 13 of 23
21-12020 Opinion of the Court 13
561 F.3d 1275, 1278 (11th Cir. 2009) (explaining that an appellant
must make arguments with supporting citations, or the argument
is forfeited). As to the two factors that the workers do mention,
they argue that the Group’s main asset is a “personal acquaintance”
who helps obtain contracts from Ceres. That asset is not obviously
relevant to “the relative investments” of the Group “in equipment
and facilities” used by the workers, and the workers do not explain
why it is relevant. Likewise, that there is a “[Group] subcontractor
crew number” on a placard bearing the Ceres logo placed on the
heavy equipment used by the workers is not an indicium of a “de-
gree of supervision, direct or indirect, of the work[ers].” Layton,
686 F.3d at 1176 (internal quotation marks omitted); see also id. at
1174, 1178 (explaining that the existence of a company’s logo on
uniforms or equipment alone is not an indicium of “[t]he nature
and degree of . . . control”).
The workers also forfeited this argument before the district
court. As the district court stated, the workers “primarily argue[d]
that Ceres is their joint employer and only ma[d]e passing reference
to [the Group] in their Motion.” “This Court has repeatedly held
that an issue not raised in the district court and raised for the first
time in an appeal will not be considered by this [C]ourt.” Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(internal quotation marks omitted).
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 14 of 23
14 Opinion of the Court 21-12020
2. Ceres Was Not a Joint Employer of the Workers.
Under the eight-factor framework we use to evaluate joint-
employer claims, Ceres is not a joint employer of the workers. We
conclude that all but one factor supports Ceres. Although we do
not tally up the factors in a “mathematical formula,” the eight-fac-
tor analysis establishes that the workers were not “economically
dependent” on Ceres. Layton, 686 F.3d at 1176–78 (internal quota-
tion marks omitted).
a. The nature and degree of Ceres’s control of the workers was
minimal.
Ceres did not exert more than a minimal degree of control
of workers. “Control arises . . . when the [purported joint em-
ployer] goes beyond general instructions . . . and begins to assign
specific tasks, to assign specific workers, or to take an overly active
role in the oversight of work.” Aimable v. Long & Scott Farms, 20
F.3d 434, 441 (11th Cir. 1994). “[A]n overly active role in the over-
sight of work” occurs when an entity makes decisions like “(1) for
whom and how many employees to hire; (2) how to design the
employees’ management structure; (3) when work begins each
day; (4) when the laborers shall start and stop their work through-
out the day; and (5) whether a laborer should be disciplined or re-
tained.” Layton, 686 F.3d at 1178 (quoting Martinez-Mendoza v.
Champion Int’l Corp., 340 F.3d 1200, 1209–10 (11th Cir. 2003)).
The workers argue that Ceres exerted the necessary control
for four reasons. First, all the work performed by the workers was
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 15 of 23
21-12020 Opinion of the Court 15
to fulfill contractual obligations of Ceres to Jackson County. Sec-
ond, Ceres informs subcontractors of the type of equipment and
number of workers needed to complete various subcontracts.
Third, the subcontractors’ work is not considered complete until
Ceres inspects and approves it. Fourth, Ceres can use subcontrac-
tors at the jobsite how it sees fit and can expel from the jobsite any
subcontractor for any reason.
Ceres responds that it asserted only minimal control over
the workers. It maintains that assigning a subcontractor to a partic-
ular area of disaster clean-up and occasionally checking the work
to ensure contract compliance does not amount to the control nec-
essary for this factor. Ceres also argues that it never specifically as-
signed any work to any of the workers individually, a point the
workers do not dispute.
The kinds of control the workers mention are insufficient to
make this factor weigh in their favor. A general contractor can
“take action during or after the conclusion of the work to confirm
satisfaction of the contract’s ultimate performance standards
. . . without this action alone being considered an indicium of joint
employer” status. Martinez-Mendoza, 340 F.3d at 1211 (internal
quotation marks omitted). The workers’ argument about Ceres ap-
proving their work for it to be considered complete is not enough
for this factor to weigh in their favor. In addition, all the workers’
arguments about assignment of work areas to subcontractors, gen-
eral directions about the equipment and number of workers
needed, and unexercised ability to expel the subcontractors from
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 16 of 23
16 Opinion of the Court 21-12020
the jobsite are analogous to the arguments we rejected in Aimable
v. Long & Scott Farms. See 20 F.3d at 440. The purported employer
“did not directly control the number of workers hired to do the
work; it did not demand [specific individuals be] . . . hire[d] (or
fire[d]) . . . ; and, it did not select specific workers to do specific
jobs.” Id. at 440. And we did not consider the fact an entity gener-
ally directed other entities with which it subcontracted where the
subcontracted entity should perform work and how the work is to
be performed to be indicative of control. Id. So, this factor weighs
against finding joint employment because Ceres did not determine
how many workers would be hired, design their management
structure, or direct the individual workers in any meaningful way.
See Layton, 686 F.3d at 1178.
b. Ceres’s degree of supervision, direct or indirect, of the workers
was minimal.
Ceres did not exercise more than a minimal degree of super-
vision over the workers. To be sure, “[s]upervision can be present
regardless of whether orders are communicated directly to the al-
leged employee or indirectly through the contractor.” Layton, 686
F.3d at 1178–79. But “infrequent assertions of minimal oversight do
not constitute the requisite degree of supervision.” Martinez-Men-
doza, 340 F.3d at 1211; accord Layton, 686 F.3d at 1179. The work-
ers mention that all the equipment had to be approved by Ceres
and bear Ceres’s logo, that the subcontractors were assigned areas
to work by Ceres, that Ceres inspected finished work to determine
whether it complied with the contract, that Ceres hosted safety
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 17 of 23
21-12020 Opinion of the Court 17
meetings, and that all those actions are indicia of supervision. But
Ceres correctly explains that the height of its supervision of the
workers was its inspection of a trailer that AA & K provided to the
workers and that all its other actions involved general assignments
to subcontractors and occasional oversight to ensure contractual
compliance. Ceres did not exercise any significant degree of direct
supervision over the workers, as the workers’ own depositions sug-
gest. Because Ceres did not exercise any significant supervision
over the employees, this factor weighs against a finding of joint em-
ployment.
c. Ceres did not have the right, directly or indirectly to hire, fire,
or modify the workers’ employment conditions.
The workers do not argue that Ceres had the right to hire or
fire the workers. The workers argue only that Ceres could theoret-
ically withdraw access to the worksite and that “as a practical mat-
ter, the subcontracted entities . . . hired no one until Ceres mobi-
lized them.” But as Ceres argues, “[i]t is undisputed that Ceres did
not reach out to, contact, recruit, or hire [the workers].” “Because
[Ceres] had minimal involvement with the employment process,
this factor weighs against a finding of joint employment.” Layton,
686 F.3d at 1179.
d. Ceres did not have the power to determine the pay rates or
methods of payment of the workers.
Ceres did not have the power to determine the pay rates or
methods of payment in a way that is relevant to our review. We
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 18 of 23
18 Opinion of the Court 21-12020
have explained that it is not enough for this factor to support a find-
ing of joint employment if the employee is merely paid by its em-
ployer from funds paid to the employer by the purported joint em-
ployer as a part of a contract to deliver services. Aimable, 20 F.3d
at 442. And we have explained that the most important question
for this factor is which entity “determine[s] what wages to pay” the
workers. Id. The workers assert that because Ceres’s agreement
with the County says that all work performed in fulfillment of that
contract must comply with applicable laws and regulations, Ceres
had the power to set pay rates of AA & K employees, including the
workers. Ceres correctly counters that “Ceres did not negotiate pay
rates and methods with” the workers. Because the workers admit-
ted to negotiating their pay rates with AA & K or its representatives
and receiving payment from AA & K or its representatives, this fac-
tor weighs against a finding of joint employment.
e. Ceres did not prepare the payroll or payment of wages.
Ceres did not prepare the payroll or payment of wages, so
this factor weighs against a finding of joint employment. See id. at
442–43 (weighing against a finding of joint employment where the
employer is not “responsible for calculating [the workers’] wages
as well as [administering] pay[ment] [of] those wages”). The work-
ers argue “that Ceres has the power and authority to pay [the work-
ers] directly at any time.” They do not explain how that fact is rel-
evant to this factor, and they do not contend that Ceres prepared
the payroll or payment of wages. Ceres correctly points out that it
did not make actual payments to the workers. Where a purported
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 19 of 23
21-12020 Opinion of the Court 19
employer was not “involved with the payment of [the workers],
. . . [t]his factor weighs against a finding of joint employment.” Lay-
ton, 686 F.3d at 1179.
f. Ceres did not own the facilities where work occurred, but it had
some control over the worksite.
The “ownership of the facilities where work occurred”
slightly supports a finding of joint employment. Id. at 1176. We
have explained that when a business “controls the worksite” this
factor supports a finding of joint employment because the business
“will likely be able to prevent labor law violations.” Id. at 1180 (in-
ternal quotation marks omitted). But we have also explained that
when most of the work is performed in equipment, such as vehi-
cles, that are not owned by the purported joint employer, this fac-
tor weighs against a finding of joint employment. Id. The workers
argue that, although most of the work was performed on public
property, the worksites were controlled by Ceres, which could re-
move any subcontractor from the worksites for any reason. Ceres
responds that the equipment used by the workers was not owned
by Ceres and that this fact counsels against a finding of joint em-
ployment. Although this factor weighs slightly in favor of a finding
of joint employment, the fact that all the equipment—including
equipment that the workers would work inside, like bobcats—was
provided by AA & K makes this factor not especially probative. See
id. at 1181 (finding a factor not especially probative when there
were facts that supported contradictory outcomes); id. at 1177
(“[T]he weight of each factor depends on” how probative the factor
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 20 of 23
20 Opinion of the Court 21-12020
is of the worker’s economic dependence on the asserted joint em-
ployer.).
g. The workers did not perform a specialty job integral to Ceres’s
business.
The workers did not perform a specialty job integral to
Ceres’s business. We have explained that this factor supports work-
ers who “work[] at a particular position on a larger production
line.” Id. at 1180 (internal quotation marks omitted). But we also
concluded in Layton v. DHL Express (USA) that this factor did not
support subcontracted drivers who deliver packages for DHL, a
company in the business of delivering packages because those driv-
ers could have offered their services to other package delivery busi-
nesses. Id. The workers make the same argument that the drivers
in Layton made: they perform the service that Ceres is in the busi-
ness of providing, and so they must be integral to Ceres’s business.
We rejected a similar argument in Layton, and we reject it here.
Because these workers did not perform a specialized task in an as-
sembly-line environment, this factor weighs against a finding of
joint employment. See id.
h. Ceres invested relatively less than AA & K in the equipment
and facilities.
Ceres’s relative investment in equipment and facilities is
slightly less than the relative investment of AA & K, so this factor
weighs slightly against a finding of joint employment. We have said
that this factor is relevant because “workers are more likely to be
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 21 of 23
21-12020 Opinion of the Court 21
economically dependent on the person who supplies the equip-
ment or facilities.” Id. at 1181. The workers argue that this factor
should favor a finding of joint employment because “[t]he primary
asset . . . of each of the Defendants in this case are the laborers and
manpower that they bring to the project” and because the main
asset of Ceres “is its contract with a government entity to provide
services.” The workers do not explain how, even if their assertion
about Ceres’s primary asset is true, that fact would be relevant to
this factor. Ceres argues that the facts are more favorable to it here
than the facts were to the purported employer in Layton, where
we considered this factor to be neutral because there was signifi-
cant investment in the facilities and some investment in some of
the equipment used by the workers by the purported joint em-
ployer. Id. Ceres argues that it did not supply any equipment to the
workers, and it had only minimal investment in the facilities used
by the workers. Because there was less significant investment in the
facilities and no investment in equipment used by the workers, this
factor weighs slightly against a finding of joint employment.
All the factors but one weigh against a finding of joint em-
ployment. We conclude that the eight factors establish that the
workers were not economically dependent on Ceres. Ceres was
not their employer.
C. The Workers Forfeited Their Breach-of-Contract Claim.
The workers raise new theories on appeal to argue that they
have a breach-of-contract claim and mention the theory they pur-
sued in the district court only in a cursory manner. The workers
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 22 of 23
22 Opinion of the Court 21-12020
argued in the district court that they had a contract implied in fact.
In their briefs before this Court, the workers argue that they were
intended third-party beneficiaries of Ceres’s contracts with Jackson
County and the Group and that they have a contract implied in law
with both Ceres and the Group. They also argue, without citation
to legal authority or facts in the record, that the district court incor-
rectly held that the workers did not have a contract implied in fact
with Ceres or the Group.
We decline to consider the workers’ new theories because
the district court did not have an opportunity to pass upon them.
“[A]s a court of appeals, we review claims of judicial error in the
trial courts[,] . . . [and] [i]f we were to regularly address questions—
particularly fact-bound issues—that the district[] court never had a
chance to examine, we would not only waste our resources, but
also deviate from the essential nature, purpose, and competence of
an appellate court.” Access Now, Inc., 385 F.3d at 1331. Because we
review claims of judicial error, we have “repeatedly” declined to
address entirely new theories, like the workers’ arguments about
their breach-of-contract claim, on appeal. Id. at 1330–31. We also
have repeatedly explained that “an appellant’s brief must include
an argument containing appellant’s contentions and the reasons for
them, with citations to authorities and parts of the record on which
the appellant relies.” E.g., Singh, 561 F.3d at 1278 (internal quota-
tion marks omitted). And when an appellant fails to meaningfully
argue a theory and fails to cite authority or facts in the record that
support the argument, that argument is forfeited. Id. The workers
USCA11 Case: 21-12020 Date Filed: 05/25/2022 Page: 23 of 23
21-12020 Opinion of the Court 23
here failed to meaningfully argue their contract-implied-in-fact the-
ory and cited no record evidence or legal authority, so that argu-
ment is forfeited.
IV. CONCLUSION
We AFFIRM the judgment in favor of Ceres and the Group.