Reinaldo Ramon Lamonica v. Safe Hurricane Shutters, Inc.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15743
________________________
D.C. Docket No. 0:07-cv-61295-JIC
REINALDO RAMON LAMONICA,
AUGUSTIN MILAN,
ANGELES LAMONICA SOLER,
MARIO FELICIANO,
GUILLERMO ALBOREZ, et al.
Plaintiffs-Appellees,
versus
SAFE HURRICANE SHUTTERS, INC.,
a Florida corporation,
d.b.a. Advanced Hurricane Protection,
STEVE HEIDELBERGER,
FRANCIS MCCARROL,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 6, 2013)
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Before BARKETT and PRYOR, Circuit Judges, and BATTEN, * District Judge.
BATTEN, District Judge:
This is an appeal from a judgment awarding unpaid wages and liquidated
damages under the Fair Labor Standards Act (“FLSA”). Appellees challenge the
judgment itself, as well as the district court’s denial of their post-trial motions
under Federal Rules of Civil Procedure 50(b) and 59(e). For the reasons that
follow, we affirm.
I. BACKGROUND
Mario Feliciano and Augustin Milan formerly installed hurricane shutters for
Safe Hurricane Shutters, Inc. In relation to that employment, they brought this
action along with seven of their former co-workers to recover unpaid overtime
wages under the FLSA. In addition to the corporate defendant, they sued its
president and CEO, Edward Leiva, and two of its directors, Steve Heidelberger and
Francis McCarroll. After trial, the jury found in favor of Feliciano and Milan and
against all of the defendants, awarding damages of $20,849.38 to Feliciano and
$1,312.50 to Milan. The district court subsequently determined that Feliciano and
Milan were entitled to liquidated damages in an amount equal to their actual
*Honorable Timothy C. Batten, Sr., United States District Court for the Northern District
of Georgia, sitting by designation.
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damages and entered final judgment in favor of Feliciano in the amount of
$41,698.76 and in favor of Milan in the amount of $2,625.00.
After the judgment was entered, Safe Hurricane Shutters, Heidelberger, and
McCarroll filed a renewed motion for judgment as a matter of law and alternative
motion for new trial under Federal Rule of Civil Procedure 50(b). They also filed
a motion to alter or amend the judgment under Rule 59(e). The district court
denied both motions. Safe Hurricane Shutters, Heidelberger, and McCarroll now
appeal the judgment, as well as the district court’s order denying their post-trial
motions.
II. DISCUSSION
The issues raised in this appeal require the application of several different
standards of review, each of which will be discussed in context below.
A. In Pari Delicto
First, Appellants argue that the district court should have granted their
motion for judgment as a matter of law based on the doctrine of in pari delicto,
which states that “a plaintiff who has participated in wrongdoing may not recover
damages resulting from the wrongdoing.” Official Comm. of Unsecured Creditors
of PSA, Inc. v. Edwards, 437 F.3d 1145, 1152 (11th Cir. 2006) (quoting BLACK’S
LAW DICTIONARY 794 (7th ed. 1999)). “We review a district court’s ruling on a
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motion for judgment as a matter of law de novo.” Hubbard v. BankAtlantic
Bancorp, Inc., 688 F.3d 713, 723 (11th Cir. 2012).
Appellants argue that both Feliciano and Milan participated in the
wrongdoing by failing to accurately report the income they earned from Safe
Hurricane Shutters to the IRS. They further argue that Milan participated in the
wrongdoing because he was an undocumented alien not authorized to work in the
United States, and he applied to work for Safe Hurricane Shutters using a false
Social Security number. 1 As a result, Appellants contend that Feliciano and Milan
should be barred from recovering under the FLSA.
We have previously held that undocumented aliens are “employees” who
may recover unpaid wages under the FLSA. Patel v. Quality Inn S., 846 F.2d 700,
706 (11th Cir. 1988). Appellants argue that the Supreme Court effectively
overruled Quality Inn in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.
137, 148–52 (2002). However,
[w]e are bound by the holdings of earlier panels unless and until they
are clearly overruled by this court en banc or by the Supreme Court.
While an intervening decision of the Supreme Court can overrule the
decision of a prior panel of our court, the Supreme Court decision
must be clearly on point.
1
Milan’s immigration status was not conclusively established at trial, but because we
find it irrelevant to his ability to recover under the FLSA, we will assume that he was indeed an
undocumented alien during the time he worked for Safe Hurricane Shutters.
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Randall v. Scott, 610 F.3d 701, 707 (11th Cir. 2010) (internal citations and
quotation marks omitted). For the reasons that follow, Hoffman is not clearly on
point and therefore did not overrule Quality Inn.
In Hoffman, the Supreme Court held that the NLRB cannot award backpay
to undocumented aliens who are terminated for union activity in violation of the
National Labor Relations Act (“NLRA”). However, the Court did not disturb its
prior holding that undocumented aliens “plainly come within the broad statutory
definition of ‘employee’” contained in the NLRA. Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 892 (1984). Instead, the Court emphasized that it was merely limiting
the remedies available to undocumented aliens under the NLRA. See Hoffman,
535 U.S. at 152 (“Lack of authority to award backpay does not mean that the
employer gets off scot-free.”). In Quality Inn, we found the statutory definitions of
“employee” in the NLRA and FLSA to be analogous, and we drew upon Sure-
Tan’s analysis of the NLRA in concluding that undocumented aliens are also
“employees” under the FLSA. 846 F.2d at 702–03. Hoffman does nothing to cast
doubt on that portion of our holding.
Nor does Hoffman cast doubt on our holding that undocumented aliens may
recover their unpaid wages under the FLSA. The NLRA, which was at issue in
Hoffman, grants the NLRB “broad discretion to devise remedies that effectuate the
policies of the Act, subject only to limited judicial review.” Sure-Tan, 467 U.S. at
5
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898–99. This limited judicial review includes the authority to reject the NLRB’s
chosen remedy where it “trenches upon a federal statute or policy outside the
Board’s competence to administer.” Hoffman, 553 U.S. at 147. Hoffman was an
exercise of that judicial authority; the Court rejected the NLRB’s remedy on the
ground that it trenched upon the policies underlying the Immigration Reform and
Control Act of 1986 (“IRCA”).
In contrast, no administrative body or court is vested with discretion to
fashion an appropriate remedy under the FLSA. Instead, the Act unequivocally
provides that any employer who violates its minimum wage or overtime provisions
“shall be liable to the employee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime compensation, as the case may
be, and in an additional equal amount as liquidated damages.”2 29 U.S.C.
§ 216(b). Unlike the NLRA, there is nothing in the FLSA that would allow us to
conclude that undocumented aliens, although protected by the Act, are nevertheless
barred from recovering unpaid wages thereunder.
Moreover, Hoffman does not give us cause to reconsider whether the IRCA
was intended to amend the FLSA by implication, removing undocumented aliens
from its protection. Of course, Hoffman did not even go this far with respect to the
2
The court has discretion not to award liquidated damages if it finds that the defendant
acted in good faith. 29 U.S.C. § 260. However, unpaid wages must be awarded regardless of the
employer’s good faith.
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NLRA; it merely concluded that in light of the policies underlying the IRCA, an
award of backpay to an undocumented alien “lies beyond the bounds of the
Board’s remedial discretion.” 535 U.S. at 149. Even so, to give full consideration
to Appellants’ arguments, we will determine whether Hoffman’s reasoning
undermines our reasoning in Quality Inn. In doing so, we reemphasize that
“amendments by implication are disfavored. Only when Congress’ intent to repeal
or amend is clear and manifest will we conclude that a later act implicitly repeals
or amends an earlier one.” Quality Inn, 846 F.2d at 704.
In Hoffman, the Court concluded that awarding backpay to undocumented
aliens under the NLRA would be inconsistent with the IRCA, which “‘forcefully’
made combating the employment of illegal aliens central to ‘[t]he policy of
immigration law.’” 535 U.S. at 147 (quoting INS v. Nat’l Ctr. for Immigrants’
Rights, Inc., 502 U.S. 183, 194 & n.8 (1991)). The Court rejected the view that
Congress would have made it a crime for an alien to obtain employment with false
documents and “nonetheless intended to permit backpay where but for an
employer’s unfair labor practices, an alien-employee would have remained in the
United States illegally, and continued to work illegally, all the while successfully
evading apprehension by immigration authorities.” Id. at 149. The Court reasoned
that “awarding backpay in a case like this not only trivializes the immigration laws,
it also condones and encourages future violations.” Id. at 150.
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In contrast, an FLSA plaintiff “is not attempting to recover back pay for
being unlawfully deprived of a job” that he could never have lawfully performed.
Quality Inn, 846 F.2d at 705. “Rather, he simply seeks to recover unpaid
minimum wages and overtime for work already performed.” Id.
In such circumstances, the immigration law violation has already
occurred. The [award of unpaid wages] does not itself condone that
violation or continue it. It merely ensures that the employer does not
take advantage of the violation by availing himself of the benefit of
undocumented workers’ past labor without paying for it in accordance
with minimum FLSA standards.
Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 243 (2d Cir. 2006). Thus,
even after Hoffman, we maintain that “[b]y reducing the incentive to hire such
workers the FLSA’s coverage of undocumented aliens helps discourage illegal
immigration and is thus fully consistent with the objectives of the IRCA.” Quality
Inn, 846 F.2d at 704–05. In short, the IRCA does not express Congress’s clear and
manifest intent to exclude undocumented aliens from the protection of the FLSA.
For the foregoing reasons, Hoffman is not clearly on point and we are bound
to follow Quality Inn. Consequently, Milan’s ability to recover unpaid wages
under the FLSA does not depend on his immigration status. However, Appellants
argue that the in pari delicto doctrine still bars his recovery because in addition to
being an undocumented alien, he applied to work for Safe Hurricane Shutters using
a false Social Security number. They further argue that the in pari delicto doctrine
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bars both Feliciano and Milan from recovering under the FLSA because they failed
to accurately report their income to the IRS.
The in pari delicto defense may be applied to bar recovery under a federal
statute only where (1) the plaintiff bears at least substantially equal responsibility
for the violations he seeks to redress, and (2) preclusion of the suit would not
substantially interfere with the statute’s policy goals. See Bateman Eichler, Hill
Richards, Inc. v. Berner, 472 U.S. 299, 310–11 (1985); Edwards, 437 F.3d at
1154–55. “The first prong of this test captures the essential elements of the classic
in pari delicto doctrine.” Pinter v. Dahl, 486 U.S. 622, 633 (1988). The second
“embodies the doctrine’s traditional requirement that public policy implications be
carefully considered before the defense is allowed” and “ensures that the broad
judge-made law does not undermine the congressional policy favoring private suits
as an important mode of enforcing federal . . . statutes.” Id. Because we conclude
that the first prong is not satisfied in this case, we need not determine whether the
in pari delicto doctrine is consistent with the policies underlying the FLSA, such
that it may ever be applied to bar recovery under that statute.
In order to satisfy the first prong of the Bateman Eichler test, “[t]he plaintiff
must be an active, voluntary participant in the unlawful activity that is the subject
of the suit.” Id. at 636 (emphasis added). “Plaintiffs who are truly in pari delicto
are those who have themselves violated the law in cooperation with the defendant.”
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Id. (emphasis added) (quoting Perma Life Mufflers, Inc. v. Int’l Parts Corp., 392
U.S. 134, 153 (1968)). In this case, neither Feliciano nor Milan cooperated with
Appellants in violating the FLSA.
Appellants argue that Milan’s recovery should be barred because he would
not have been hired absent his use of a false Social Security number. They further
argue that both Feliciano’s and Milan’s recoveries should be barred because their
tax violations are “connected with the matter in litigation.” However, both of these
arguments misstate the test to be applied under Bateman Eichler. Not just any
causal relationship or topical connection will do. “The plaintiff must be an active,
voluntary participant in the unlawful activity that is the subject of the suit.” Id. at
636 (emphasis added). Appellants cannot satisfy that test because Feliciano and
Milan did not participate in Appellants’ decision whether to pay them overtime
wages in accordance with the FLSA. Therefore, the district court was correct to
deny Appellants’ motion for judgment as a matter of law based on the in pari
delicto doctrine.
B. Jury Instructions
Next, Appellants argue that two portions of the district court’s jury
instructions require a new trial. First, Heidelberger and McCarroll contend that the
district court gave erroneous instructions on the issue of their individual liability.
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Second, all Appellants argue that the district court erred in failing to instruct the
jury on the fluctuating workweek method of calculating damages.
“We review jury instructions de novo to determine whether they misstate the
law or mislead the jury to the prejudice of the objecting party, but the district court
is given wide discretion as to the style and wording employed in the instructions.”
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir. 2008) (internal
citations omitted). “We review only for an abuse of discretion a district court’s
refusal to give a requested jury instruction.” Pensacola Motor Sales Inc. v. E.
Shore Toyota, LLC, 684 F.3d 1211, 1224 (11th Cir. 2012). “In refusing to give a
requested jury instruction, ‘[a]n abuse of discretion is committed only when (1) the
requested instruction correctly stated the law, (2) the instruction dealt with an issue
properly before the jury, and (3) the failure to give the instruction resulted in
prejudicial harm to the requesting party.’” Id. (quoting Burchfield v. CSX Transp.,
Inc., 636 F.3d 1330, 1333–34 (11th Cir. 2011)).
1. Individual Liability
The FLSA creates a private right of action against any “employer” who
violates its minimum-wage or overtime provisions. 29 U.S.C. § 216(b). The Act
defines the term “employer” broadly to include “both the employer for whom the
employee directly works as well as ‘any person acting directly or indirectly in the
interests of an employer in relation to an employee.’” Josendis v. Wall to Wall
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Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011) (quoting 29 U.S.C.
§ 203(d)). Based on this broad definition, we have joined the “overwhelming
weight of authority” and held that “a corporate officer with operational control of a
corporation’s covered enterprise is an employer along with the corporation, jointly
and severally liable under the FLSA for unpaid wages.” Patel v. Wargo, 803 F.2d
632, 637–38 (11th Cir. 1986) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511
(1st Cir. 1983)). In this appeal, we must determine whether corporate supervisors
other than officers may be personally liable under the FLSA, and we must clarify
the degree and type of operational control that will support individual liability.
Heidelberger and McCarroll argue that the district court’s jury instructions
on individual liability require a new trial for three reasons. First, they argue that
the district court should have instructed the jury that personal liability under the
FLSA is limited to officers. Second, they argue that the district court should have
instructed the jury that “any control over an employee in determining individual
liability is limited to control over the employee-plaintiff, or individuals in his same
position.” Third, they argue that the district court erred by instructing the jury that
even occasional operational control can support individual liability.
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We will consider only the first issue (non-officer liability) in our review of
the district court’s jury instructions.3 The record does not reflect that Heidelberger
or McCarroll ever proposed an instruction that “any control over an employee in
determining individual liability is limited to control over the employee-plaintiff, or
individuals in his same position.” Therefore, the district court did not abuse its
discretion in failing to give such an instruction. Also, the district court did not
actually instruct the jury that occasional control can support individual liability. 4
Therefore, we need not consider whether such an instruction would have been
erroneous.
In arguing that only officers may be held personally liable under the FLSA,
Heidelberger and McCarroll rely on Wargo’s holding that “a corporate officer with
operational control of a corporation’s covered enterprise is an employer along with
the corporation, jointly and severally liable under the FLSA for unpaid wages.” Id.
(quoting Agnew, 712 F.2d at 1511). But while it recognized personal liability for
officers, Wargo did not purport to limit personal liability to officers, and the Act’s
broad definition of “employer” does not admit of such a limitation. As we have
3
The other two issues will be considered below in the context of Appellants’ challenges
to the sufficiency of the evidence.
4
The district court removed the following sentence from the plaintiffs’ proposed
instruction on individual liability: “Liability may also be found even if control is restricted or
exercised only occasionally as such does not diminish the significance of the existence of such
control.” Trial Tr. vol. 5, 138–39, Apr. 15, 2011.
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previously stated, whether an individual fits that definition “does not depend on
technical or isolated factors but rather on the circumstances of the whole activity.”
Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th
Cir. 2008) (quoting Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235,
237 (5th Cir. 1973)) (internal quotation marks omitted). In the typical case, a
corporation’s officers will exercise more operational control than its directors and
therefore be more susceptible to personal liability. However, usual corporate roles
are not always observed, and some directors may assume more operational control
than some officers. Therefore, a supervisor’s title does not in itself establish or
preclude his or her liability under the FLSA, and the district court was correct in
refusing to instruct the jury to the contrary.
2. Fluctuating Workweek Method
Appellants also take issue with the district court’s jury instructions on the
issue of damages. The FLSA requires that employers compensate their employees
for overtime hours “at a rate not less than one and one-half times the regular rate at
which [they are] employed.” 29 U.S.C. § 207(a)(1). If the employer fails to do so,
it will be liable to the employees for their “unpaid overtime compensation.” Id.
§ 216(b). The Act does not define the employee’s “regular rate.” However, in the
case of an employee who is paid a constant weekly salary for fluctuating hours, the
Supreme Court has found it acceptable to calculate the regular rate by dividing that
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weekly salary by the number of hours actually worked. Overnight Motor Transp.
Co. v. Missel, 316 U.S. 572, 580 (1942). This has come to be known as the
“fluctuating workweek method.”
After Missel was decided, the Department of Labor (“DOL”) promulgated
29 C.F.R. § 778.114, an interpretive rule setting forth the fluctuating workweek
method. Subsection (a) of the rule explains that where the fluctuating workweek
method is used to calculate the employee’s regular rate of pay, “[p]ayment for
overtime hours at one-half such rate in addition to the salary satisfies the overtime
pay requirement because such hours have already been compensated at the straight
time regular rate, under the salary arrangement.”
The DOL’s interpretive rule “sets forth one way in which an employer may
lawfully compensate a nonexempt employee for fluctuating work hours; it is not a
remedial measure that specifies how damages are to be calculated when a court
finds that an employer has breached its statutory obligations.” Urnikis-Negro v.
Am. Family Prop. Servs., 616 F.3d 665, 666 (7th Cir. 2010). However, under
Missel, the fluctuating workweek method may be used to calculate an employee’s
regular rate of pay and corresponding overtime premium for use in determining
damages under the FLSA. Id. Appellants contend that the district court erred in
failing to instruct the jury on the fluctuating workweek method for calculating
damages in this case.
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As an initial matter, we reject Feliciano and Milan’s argument that
Appellants waived the application of the fluctuating workweek method by failing
to plead it as an affirmative defense. The fluctuating workweek method is merely
“one method of complying with the overtime payment requirements of 29 U.S.C.
§ 207(a)(1). It is not an exemption to it.” Samson v. Apollo Res., Inc., 242 F.3d
629, 636 (5th Cir. 2001). Consequently, the fluctuating workweek method is not
an affirmative defense; rather, “the employee bears the burden of proving that the
employer failed to properly administer [it].” Id. As a result, we will consider
Appellants’ arguments on this issue.
However, the fluctuating workweek method is not the only or even the
default method for calculating damages when an employee is paid a weekly salary.
In fact, it is conceptually subsumed within the broader rule that “[i]f the employee
is employed solely on a weekly salary basis, the regular hourly rate of pay, on
which time and a half must be paid, is computed by dividing the salary by the
number of hours which the salary is intended to compensate.” 29 C.F.R.
§ 778.113(a). We have previously deferred to this DOL interpretation of an
employee’s “regular rate” of pay under the FLSA. Rodriguez v. Farm Stores
Grocery, Inc., 518 F.3d 1259, 1268 n.5 (11th Cir. 2008). Consequently, “where
the employee is paid solely on a weekly salary basis, the number of hours the
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employee’s pay is intended to compensate—not necessarily the number of hours he
actually works—is the divisor.” Id. at 1269.
The district court properly instructed the jury to calculate Appellees’ regular
rates of pay using the number of hours their salaries were intended to compensate.
Based on this instruction, the jury could have determined that Appellees’ salaries
were intended to compensate all hours worked and calculated their regular rates of
pay accordingly. The district court further instructed the jury that “[t]he measure
of damages is the difference between what the employee should have been paid
under the act and the amounts that you find were actually paid.” Thus, if the jury
determined that Appellees’ salaries were intended to compensate all hours worked,
it should have determined that they were already partially compensated for their
overtime hours at their regular rate of pay and merely awarded an overtime
premium at half that rate. This is, in effect, an application of the fluctuating
workweek method.
Because the jury instructions actually given allowed the jury to effectively
apply the fluctuating workweek method, we cannot conclude that Appellants were
prejudiced by the refusal to give more specific instructions. See Goulah v. Ford
Motor Co., 118 F.3d 1478, 1485 (11th Cir. 1997) (“The district court’s refusal to
give requested instructions is not error if the substance of the proposed instruction
was covered by another instruction, which was given.”). While we would not
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adopt the district court’s instructions as a model, and more specificity is preferable,
we hold that the district court did not abuse its discretion in refusing to give
Appellants’ proposed instruction on the fluctuating workweek method.
C. Sufficiency of the Evidence
Next, Appellants argue that the district court should have granted their
renewed motion for judgment as a matter of law or alternative motion for a new
trial based on insufficiency of the evidence, and they raise three evidentiary issues.
First, Heidelberger and McCarroll argue that the evidence was insufficient to hold
them individually liable under the FLSA. Second, all Appellants argue that the
evidence was insufficient for the jury to refuse to apply the fluctuating workweek
method. Third, all Appellants argue that there was insufficient evidence of
Feliciano’s and Milan’s overtime hours to support the jury’s verdict.
“We review de novo the denial of a motion for judgment as a matter of law,
which necessarily means that we apply the same standard as the district court.”
Pensacola Motor Sales, 684 F.3d at 1226. Judgment as a matter of law is
appropriate where “a reasonable jury would not have a legally sufficient
evidentiary basis to find” for the nonmoving party on a controlling issue. FED R.
CIV. P. 50(a)(1). Consequently, “[w]e will reverse only if the facts and inferences
point overwhelmingly in favor of [the moving] party, such that reasonable people
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could not arrive at a contrary verdict.” Ash v. Tyson Foods, Inc., 664 F.3d 883,
892 (11th Cir. 2011) (quoting Goldsmith, 513 F.3d at 1275).
In conducting our review, “[w]e do not make credibility determinations or
weigh the evidence.” Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713, 724
(11th Cir. 2012). Instead, “we consider all the evidence, and the inferences drawn
therefrom, in the light most favorable to the nonmoving party.” Pensacola Motor
Sales, 684 F.3d at 1226. We will “give credence to . . . that evidence supporting
the moving party that is uncontradicted and unimpeached, at least to the extent that
[it] comes from disinterested witnesses”; however, we will “disregard all evidence
favorable to the moving party that the jury is not required to believe.” Mee Indus.
v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 2010) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000)).
“We review a district court’s denial of a motion for a new trial for an abuse
of discretion.” St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d
1186, 1200 n.16 (11th Cir. 2009). “[N]ew trials should not be granted on
evidentiary grounds unless, at a minimum, the verdict is against the great—not
merely the greater—weight of the evidence.” Id. (quoting Lipphardt v. Durango
Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)).
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1. Individual Liability
Heidelberger and McCarroll argue that the district court should have granted
their Rule 50 motion on the issue of individual liability for two reasons. First, they
contend that they cannot be held personally liable because they were not officers of
Safe Hurricane Shutters but merely “minority shareholders at the director level.” 5
As discussed above, this argument is meritless because non-officers may be held
personally liable under the FLSA. Second, they argue that they did not exercise
sufficient operational control to be held personally liable under the FLSA. In
resolving this latter issue, we must clarify the degree and type of operational
control that will support individual liability under the FLSA.
We recognize along with the First Circuit that “individuals ordinarily are
shielded from personal liability when they do business in a corporate form, and
that it should not lightly be inferred that Congress intended to disregard this shield
in the context of the FLSA.” Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668,
677 (1st Cir. 1998). However, the FLSA contemplates at least some individual
liability, and it is consistent with Congress’s intent to impose liability upon those
who “control[] a corporation’s financial affairs and can cause the corporation to
compensate (or not to compensate) employees in accordance with the FLSA.” Id.
5
There was some evidence that McCarroll held himself out as the vice-president of Safe
Hurricane Shutters, but for purposes of this appeal, we will assume that he was merely a
shareholder and a director.
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at 678. A supervisor’s ownership interest in the corporation and control over the
corporation’s day-to-day functions are relevant to this inquiry because they are
indicative of the supervisor’s role in causing the violation. Id.
In this case, Heidelberger and McCarroll testified that they each owned
about 22.5 percent of Safe Hurricane Shutters and that their co-defendant, Edward
Leiva, owned the same amount. McCarroll testified that the remaining shares were
owned by three individuals, each of whom owned smaller percentages than Leiva,
Heidelberger, and himself. The fact that Heidelberger and McCarroll each owned
a substantial percentage of the corporation suggests that they had control over its
financial affairs and supports a finding of personal liability. However,
Heidelberger and McCarroll argue that they were in fact absentee owners who did
not exercise such control.
Our prior decisions addressing operational control have held that in order to
qualify as an employer under the FLSA, a supervisor “must either be involved in
the day-to-day operation or have some direct responsibility for the supervision of
the employee.” Alvarez Perez, 515 F.3d at 1160 (quoting Wargo, 803 F.2d at
638). Heidelberger and McCarroll rely on this language to argue that the law is
more favorable to their side than it really is.
First, they contend that “any control over an employee in determining
individual liability is limited to control over the employee-plaintiff, or individuals
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in his same position.” We agree that relevant control for purposes of individual
liability is control in relation to the employee-plaintiff. However, such control
need not be proved directly. For example, the jury may infer such control from the
exercise of general supervisory powers or the exercise of control over other
employees. Thus, Heidelberger and McCarroll’s argument represents an
incomplete statement of the law.
Next, Heidelberger and McCarroll argue that they could not have been
involved in the “day-to-day” operations of Safe Hurricane Shutters because they
were not there every day. Of course, one can be involved in “day-to-day” (i.e.,
regular) operations on an intermittent basis. Thus, Heidelberger and McCarroll’s
argument fails semantically. But more importantly, it misses the point
substantively. Again, our primary concern is the supervisor’s role in causing the
FLSA violation, and it is possible for a supervisor to exercise enough control to
play a substantial role in causing the violation while working only part-time. In
short, the fact that control was exercised only occasionally “does not diminish the
significance of its existence.” Donovan v. Janitorial Servs., Inc., 672 F.2d 528,
531 (5th Cir. 1982).
However, to support individual liability, there must be control over
“significant aspects of [the company’s] day-to-day functions, including
compensation of employees or other matters in relation to an employee.” Alvarez
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Perez, 515 F.3d at 1160 (quoting Wargo, 803 F.2d at 638). In other words, while
control need not be continuous, it must be both substantial and related to the
company’s FLSA obligations.
With these principles in mind, we turn to the facts of this case. Viewed in
the light most favorable to the plaintiffs, McCarroll was present at Safe Hurricane
Shutters about two weeks per month and Heidelberger was present at least a few
days but not more than one week per month. Both visited job sites to observe the
progress of shutter installations, and McCarroll routinely distributed work orders to
installers, describing the work they were required to complete that day. When the
company started to struggle financially, Heidelberger, McCarroll and Leiva met
with the installers to tell them that the company would be unable to pay them.
Moreover, both Heidelberger and McCarroll promised installers that they would
try to fix the problem so that the installers would eventually get paid. Heidelberger
even used $20,000 of his own funds to satisfy the company’s payroll obligations.
Although Heidelberger and McCarroll testified that they exercised less
control than that described above, the jury was not required to believe them. And
although it is undisputed that Leiva exercised more control than either of them, that
does not diminish the significance of their control. McCarroll was present about
half the time and had substantial supervisory powers in relation to installers.
While Heidelberger was present less often, he exercised direct control over
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whether installers got paid by using his own funds for that purpose. Moreover,
both Heidelberger and McCarroll met with installers to discuss payroll issues.
Based on these facts, a reasonable jury could have found that Heidelberger
and McCarroll exercised control over “significant aspects of [the company’s] day-
to-day functions, including compensation of employees or other matters in relation
to an employee.” Id. (quoting Wargo, 803 F.2d at 638). When combined with
their substantial ownership interests, this suggests that Heidelberger and McCarroll
had sufficient control of the company’s financial affairs to “cause the corporation
to compensate (or not to compensate) employees in accordance with the FLSA.”
Baystate, 163 F.3d at 678. Therefore, the jury had a legally sufficient basis to hold
Heidelberger and McCarroll individually liable, and its verdict was not against the
great weight of the evidence. The district court did not err in denying Heidelberger
and McCarroll’s Rule 50 motion on this ground.
2. Fluctuating Workweek Method
Appellants argue that the district court should have granted their Rule 50
motion on the applicability of the fluctuating workweek method. However, there
was sufficient evidence for the jury to find that the weekly salaries Safe Hurricane
Shutters paid Feliciano and Milan were intended to compensate them for only forty
hours of work. Feliciano and two other former installers testified that Leiva agreed
to pay them a weekly salary for forty hours of work, and although Milan testified
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that he did not know how many hours his weekly pay was intended to compensate,
there was no reason to believe that his compensation was structured differently.
Under these circumstances, we cannot say that the evidence points overwhelmingly
in favor of Appellants or that the jury’s verdict was against the great weight of the
evidence. Therefore, the district court was correct to deny Appellants’ Rule 50
motion on the fluctuating workweek method.
3. Overtime Hours
Appellants argue that the district court should have granted their Rule 50
motion because the evidence of Feliciano’s and Milan’s overtime hours was
insufficient to support the jury’s verdict. The FLSA places upon the employee-
plaintiff “the burden of proving that he performed work for which he was not
properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
686–87 (1946). However, if the employer failed to keep time records, as in this
case, that burden is relaxed. Specifically, in that circumstance
an employee has carried out his burden if he proves that he has in fact
performed work for which he was improperly compensated and if he
produces sufficient evidence to show the amount and extent of that
work as a matter of just and reasonable inference. The burden then
shifts to the employer to come forward with evidence of the precise
amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s
evidence. If the employer fails to produce such evidence, the court
may then award damages to the employee, even though the result be
only approximate.
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Id. at 687–88. In this case, there was sufficient testimony regarding the hours
Feliciano and Milan regularly worked to allow the jury to approximate the hours
they actually worked in each week for which they sought to recover unpaid wages.
In other words, there was sufficient testimony “to show the amount and extent of
that work as a matter of just and reasonable inference.” Id. at 687. Appellants did
not negate the reasonableness of that inference as a matter of law; therefore, the
district court did not err in denying Appellants’ renewed motion for judgment as a
matter of law. Nor can we say that the jury’s verdict was against the great weight
of the evidence such that the district court abused its discretion in denying
Appellants’ alternative motion for a new trial.
D. Evidentiary Ruling
Appellants argue that they are entitled to a new trial because the district
court erroneously excluded testimony by Leiva regarding a conversation he had
with Rolando Ibacache. Ibacache was an installer at Safe Hurricane Shutters who
was represented by the same law firm as Feliciano and Milan in a related FLSA
action against Appellants. He was also a witness in this case. Allegedly, Ibacache
told Leiva that one of the attorneys who represented the plaintiffs in both cases
fabricated the overtime claims against Appellants.
During cross-examination of Ibacache in this case, Appellants’ counsel
asked the following: “You told Mr. Leiva that the attorney said oh, let’s say you
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worked all these hours and we’ll get all these people involved and we’ll say that
there was a big overtime violation here when there really wasn’t one. That’s what
you told Mr. Leiva.” The district court overruled plaintiffs’ counsel’s hearsay
objection, then Ibacache responded, “I don’t remember. Maybe it is here, but I
don’t remember.” 6 Appellants’ counsel then asked, “You might have said that.
You don’t recall. That rings a bell. You might have said something like that. You
can’t deny it?” Ibacache responded, “I said I did not remember.”
Three days later, Leiva testified, and Appellants’ counsel asked him, “What
did Mr. Ibacache tell you about the overtime lawsuit, how that got started?”
However, the district court sustained plaintiffs’ counsel’s hearsay objection, and
Leiva was not permitted to answer. In response, Appellants’ counsel requested a
sidebar conference, but that request was denied. Appellants represent that if their
request for a sidebar conference had been granted, they would have proffered
Leiva’s testimony regarding his conversation with Ibacache, i.e., that Ibacache told
him than an attorney fabricated the overtime claims against Appellants.
As an initial matter, Feliciano and Milan argue that Appellants have not
preserved this issue for appeal because they failed to raise it in their pre-verdict
motion for judgment as a matter of law under Federal Rule of Civil Procedure
6
Appellants’ counsel had been using Ibacache’s deposition to impeach him. Presumably,
when Ibacache said, “Maybe it is here,” he was referring to his deposition transcript.
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50(a). That argument might have merit if the issue Appellants failed to raise in
their pre-verdict motion was a challenge to the sufficiency of the evidence. 7
However, “[i]f there have been errors at the trial, duly objected to, dealing with
matters other than the sufficiency of the evidence, they may be raised on appeal
from the judgment even though there has not been either a renewed motion for
judgment as a matter of law or a motion for a new trial.” 9B CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2540 (3d
ed. 2008), available at Westlaw FPP.
In order to challenge a ruling excluding evidence, a party simply must
“inform[] the court of its substance by an offer of proof, unless the substance was
apparent from the context.” FED. R. EVID. 103(a)(2). “Once the court rules
definitively on the record—either before or at trial—a party need not renew an . . .
offer of proof to preserve a claim of error for appeal.” FED. R. EVID. 103(b).
In this case, the substance of Leiva’s proffered testimony was obvious from
its context. Ibacache had already been questioned about his alleged conversation
with Leiva, and the question Appellants’ counsel posed to Leiva was obviously
7
In that circumstance, the scope of our review would be limited to plain error. Howard
v. Walgreen Co., 605 F.3d 1239, 1243 (11th Cir. 2010). Appellants do argue that in the
alternative to a new trial, the district court’s erroneous evidentiary ruling entitles them to
judgment as a matter of law. This might be construed as an argument that if Leiva’s testimony
had been admitted, the jury would have lacked a legally sufficient evidentiary basis to find for
the plaintiffs. However, even assuming Leiva’s testimony should have been admitted, such an
argument would be meritless because the jury would not have been required to believe it.
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directed at that same conversation. No doubt the district court denied Appellants’
request for a sidebar conference because it already knew the substance of the
proffered testimony. Therefore, as soon as the district court made a definitive
ruling by sustaining the hearsay objection, the issue was preserved for appeal. We
now turn to our substantive review of that ruling.
We have often stated generally that evidentiary rulings are reviewed for
abuse of discretion. See, e.g., United States v. Dortch, 696 F.3d 1104, 1110 (11th
Cir. 2012). However, things are not always so simple. While evidentiary rulings
often require an exercise of discretion that calls for this standard of review, they
may also require legal and factual determinations that call for different standards.
Specifically, “[t]he factual findings underlying [evidentiary] rulings are reviewed
for clear error.” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012).
And questions of law underlying evidentiary rulings are reviewed de novo. See
United States v. Westry, 524 F.3d 1198, 1215 (11th Cir. 2008) (“[A] determination
of whether a statement is against the declarant’s penal interest is purely a question
of law subject to de novo review.”); cf. United States v. Henderson, 409 F.3d 1293,
1297 (11th Cir. 2005) (“[B]asing an evidentiary ruling on an erroneous view of the
law constitutes an abuse of discretion per se.”).
In this case, Appellants argue that Leiva’s testimony should have been
admitted under the statement-against-interest hearsay exception found in Federal
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Rule of Evidence 804(b)(3). For that exception to apply, Ibacache must have been
unavailable as a witness under Rule 804(a). Whether a declarant is unavailable as
a witness under Rule 804(a) is a question of law that we review de novo. In so
doing, we note that “[t]he burden of proving the unavailability of a witness under
Rule 804(a) rests with the proponent of the hearsay evidence.” United States v.
Acosta, 769 F.2d 721, 723 (11th Cir. 1985).
A declarant is considered unavailable as a witness if, among other things, the
declarant “testifies to not remembering the subject matter.” FED. R. EVID.
804(a)(3). Appellants contend that Ibacache was unavailable because he testified
that he did not remember his conversation with Leiva. However, Rule 804(a)(3)
applies only if the declarant is unable to remember the “subject matter,” i.e., if “he
has no memory of the events to which his hearsay statements relate.” N. Miss.
Commc’ns, Inc. v. Jones, 792 F.2d 1330, 1336 (5th Cir. 1986). The fact that the
witness does not remember making the statements themselves is irrelevant. 5
CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 8:112
(3d ed. 2007), available at Westlaw FEDEV. Appellants have failed to identify,
and we have not found, any testimony by Ibacache in which he claimed not to
remember the subject matter of his alleged conversation with Leiva, i.e., whether
the overtime claims were actually fabricated. Instead, Ibacache consistently
maintained that he and the other installers worked overtime hours for which they
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were not compensated. Therefore, Appellants failed to satisfy their burden of
showing that Ibacache was unavailable as a witness, and the district court did not
err by excluding Leiva’s testimony as hearsay.
E. Payroll Tax Withholding
Finally, Appellants contend that the district court should have granted their
motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e)
in order to exclude the amounts they are required to withhold for payroll taxes.
“We review the denial of a motion to alter or amend a judgment under Rule 59(e)
for abuse of discretion.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d
1337, 1341 (11th Cir. 2007).
We find no abuse of discretion in the district court’s approach because
Appellants can satisfy the judgment and comply with their withholding obligations
without incurring duplicative liability. Any withholding payments they make to
the IRS or state tax authorities on Appellees’ behalf will work toward satisfaction
of the judgment. And once the judgment has been satisfied, in part through such
payments and in part through payments to Appellees, Appellants may move for
relief from the judgment under Federal Rule of Civil Procedure 60(b)(5) to ensure
no further liability to Appellees.
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III. CONCLUSION
We AFFIRM the judgment below, as well as the district court’s denial of
Appellants’ post-trial motions under Federal Rules of Civil Procedure 50(b) and
59(e).
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PRYOR, Circuit Judge, concurring in part and dissenting in part:
I concur in the resolution by the majority opinion of some of the issues
raised in this appeal. I concur in the denial of a judgment as a matter of law in
favor of Francis McCarroll and Safe Hurricane Shutters, Inc., under the in pari
delicto doctrine and based on the sufficiency of the evidence. I also concur in the
denial of a judgment as a matter of law in favor of McCarroll on the issue of
individual liability as an employer under the Fair Labor Standards Act. And I
concur in the resolution of the evidentiary issues addressed in the majority opinion.
But I respectfully dissent from the resolution of the appeal for two reasons.
First, the district court abused its discretion when it refused to instruct the jury
about the fluctuating workweek. Second, the district court erred when it concluded
that, based on the evidence presented at trial, a reasonable jury could find sufficient
facts to render Steve Heidelberger liable as an employer within the meaning of the
Act. I would reverse and remand for a new trial with respect to McCarroll and
Safe Hurricane Shutters, and grant a judgment as a matter of law in favor of
Heidelberger.
A. The District Court Abused Its Discretion When It Refused to Instruct the
Jury About the Fluctuating Workweek Method.
The majority opinion concludes that the district court did not abuse its
discretion when it refused to instruct the jury on the fluctuating workweek method,
but I disagree. A refusal to give a jury instruction will amount to an abuse of
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discretion when “(1) the requested instruction correctly stated the law, (2) the
instruction dealt with an issue properly before the jury, and (3) the failure to give
the instruction resulted in prejudicial harm to the requesting party.” Pensacola
Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1224 (11th Cir. 2012).
The defendants have established each of these elements.
The requested jury instruction provides an accurate statement of the law on
the fluctuating workweek. The defendants requested a jury instruction that
explained the difference between the time-and-a-half method and the fluctuating
workweek method as follows:
The Act requires an employer to pay its employees at a rate of at least
one and one-half times their “regular rate” for time worked in any one
work week over 40 hours. This is commonly known as time-and-a-
half pay for “overtime” work. The employee’s “regular rate” is
simply the employee’s hourly rate, for those employees compensated
by way of an hourly rate. All overtime hours worked must be
compensated at one and one-half times the regular rate if an employee
is being paid hourly.
If you determine that Plaintiffs were paid a salary then the FLSA
considers the Plaintiffs to have been paid for all hours worked at a
straight time rate, and only an additional halftime is owed for
overtime hours, not one and one-half their regular rates. This can be
demonstrated as follows: If you find a plaintiff worked 50 hours per
week and was paid $500, his hourly rate is $10.00/hr ($500 ÷ 50 =
$10/hr) and his half-time rate is $5 ($10/hr [x] .5 = $5/hr). Thus, if
you found that such a plaintiff worked overtime one week, you would
award him $50 ($5/hr x 10/hrs).
This instruction is consistent with the interpretive rule promulgated by the
Department of Labor. See 29 C.F.R. § 778.114(a). According to that rule, the
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calculation of overtime under the fluctuating workweek method differs from the
traditional time-and-a-half calculation in two ways: (1) “the regular rate of the
employee will vary from week to week and is determined by dividing the number
of hours worked in the workweek into the amount of the salary to obtain the
applicable hourly rate for the week,” and (2) “[p]ayment for overtime hours at one-
half [of the regular] rate in addition to the salary satisfies the overtime pay
requirement.” Id. The requested instruction was a correct statement of the law,
and the majority opinion does not suggest otherwise.
The record also supports the potential application of the fluctuating
workweek method. The fluctuating workweek method applies “[w]here there is a
clear mutual understanding of the parties that the fixed salary is compensation
(apart from overtime premiums) for the hours worked each workweek, whatever
their number.” Id. Mario Feliciano testified that his hours varied each week, but
that he received the same salary each week, no matter how many hours he worked.
And the defendants introduced Feliciano’s letter of employment, which said that
Feliciano earned $800 per week, not $800 for the first 40 hours he worked each
week. Augustin Milan testified that “there was a clear and mutual understanding
between [him] and the company that when [he] would work each week no matter
how many hours [he] worked [he] would get that same amount of pay.” Because
the shutter installers could not be salaried employees who are ineligible for
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overtime, an agreement of this sort would evidence a fluctuating workweek
agreement, and the majority opinion does not suggest otherwise.
The failure to give the instruction on the fluctuating workweek method
prejudiced the defendants. The district court not only refused to give any jury
instruction that described the fluctuating workweek method, but it repeatedly
instructed the jury as follows that, if the employees proved that they had worked
more than 40 hours per week, the employees would be owed time-and-a-half:
This case arises under the Fair Labor Standards Act, the [f]ederal law
that among other things provides for the payment of time-and-a-half
overtime pay. The plaintiffs claim that the defendants did not pay
them the overtime pay required by law.
The plaintiffs, in fact, claimed that they were not paid overtime or
straight time or, in other words, they were only paid for the first 40
hours they worked each week and were not paid at all for the hours
they worked in addition to 40 hours.
Therefore, the term overtime in this case includes such overtime–
includes both–such overtime and straight time.
...
The [A]ct requires an employer to pay its employee at a rate of at least
one-and-a-half times their regular rate for the time worked in one
week over 40 hours. This is commonly known as time-and-a-half pay
for overtime worked.
The employee’s regular rate during a particular week is the basis for
calculating any overtime pay due him for that week. The regular rate
for a week is determined by dividing the first 40 hours worked into
the total wages paid for those 40 hours. The overtime rate then would
be one-and-a-half of that rate and would be owing for each hour in
excess of 40 hours worked during the workweek.
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...
If the employee is employed solely on a weekly salary basis, his
regular hourly rate of pay on which time-and-a-half hours must be
paid is computed by dividing the salary by the number of hours which
the salary is intended to compensate. For example, if an employee is
hired at a salary of $220.80 for a 40-hour week, his regular rate is
$5.52 an hour.
The majority opinion contends that the jury instructions adequately
instructed the jury about the fluctuating workweek method, but that contention
fails for two reasons. First, the majority opinion alleges that “[t]he district court
properly instructed the jury to calculate Appellees’ regular rates of pay using the
number of hours their salaries were intended to compensate,” Majority Opinion at
17, but the majority opinion fails to quote the relevant jury instruction. The
instruction required the jury to award only time-and-a-half on the regular rate: “If
the employee is employed solely on a weekly salary basis, his regular hourly rate
of pay on which time-and-a-half hours must be paid is computed by dividing the
salary by the number of hours which the salary is intended to compensate.” That
instruction is fundamentally inconsistent with the application of the fluctuating
workweek method, under which only half-time is owed. Second, the majority
opinion suggests that the vague instruction that “[t]he measure of damages is the
difference between what the employee should have been paid under the act and the
amounts that you find were actually paid” satisfactorily instructed the jury about
the fluctuating workweek method, id., but that instruction neither informed the jury
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of the existence of the fluctuating workweek method nor informed the jury how to
calculate it. Because the jury was never informed that the employees might be
owed only half-time, the defendants were prejudiced by the jury instructions, and
the district court abused its discretion when it refused to instruct the jury about the
fluctuating workweek method.
B. Heidelberger Is Not an Employer Within the Meaning of the Act.
The majority opinion also erroneously concludes that the evidence
establishes a legally sufficient basis to hold Heidelberger liable as an employer
under the Act. Id. at 24. A director of a company will be held liable as an
employer under the Act only if he “ha[s] operational control of significant aspects
of [the company’s] day-to-day functions, including compensation of employees or
other matters in relation to an employee.” See Alvarez Perez v. Sanford-Orlando
Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (internal quotation marks
omitted). The majority opinion concludes that Heidelberger meets this standard
because he: (1) was present at Safe Hurricane Shutters at least a few days but not
more than one week per month; (2) visited job sites to observe the progress of
shutter installations during some of those visits; (3) met with installers toward the
end of the life of the business to tell the installers that the company would not be
able to pay them on time; and (4) used $20,000 of his own funds to satisfy the
payroll obligations. Majority Opinion at 23. But these isolated incidents do not
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establish the day-to-day operational control of the business required by our
precedents.
The testimony of the installers at trial establishes that Heidelberger was not
involved in the day-to-day operation of the business. When he visited the two
largest job sites, Heidelberger did nothing more than observe the progress of the
installers at two big projects. He did not instruct the installers on their work
because he did not know how to install shutters. He also could not communicate
with most of the installers because he spoke “[v]ery, very little” Spanish, and the
primary language of most of the installers was Spanish. Heidelberger never gave
the installers work orders, and Milan testified that he “never knew” Heidelberger.
Heidelberger’s one-time participation in a payroll dispute toward the end of the life
of the company does not establish that he exercised day-to-day control.
Our decision in Patel v. Wargo, 803 F.2d 632 (11th Cir. 1986), is instructive.
Like Heidelberger, Wargo was a director of and a principal, but not majority,
stockholder in a company. Id. at 637. Unlike Heidelberger, Wargo was also
president of that company. Id. Nevertheless, the district court found that Wargo
was neither responsible for the contract of the plaintiff employee nor involved in
the day-to-day operation of the business, and we affirmed. Id. at 638. Similarly,
Heidelberger had no responsibility for the contracts with Feliciano or Milan and
was not involved in the day-to-day operations of Safe Hurricane Shutters. The
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installers presented no testimony that they were instructed to ask questions of
Heidelberger in the absence of the Chief Executive Officer, Edward Leiva; that
Heidelberger had any authority to act without Leiva’s approval; or that
Heidelberger resolved day-to-day problems on his short visits to the business each
month. Based on these facts, I would conclude that Heidelberger “lacked the
operational control necessary for the imposition of liability as an ‘employer’ under
the [Act].” See id.
I concur in part and dissent in part. I concur in the decision that McCarroll
and Safe Hurricane Shutters are not entitled to a judgment as a matter of law, but I
would reverse and remand for a new trial with respect to McCarroll and Safe
Hurricane Shutters and grant a judgment as a matter of law in favor of
Heidelberger.
40