United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE.
Valencia Hardison worked for Defendants Healthcare Training
Solutions, LLC (“HTS”) and its chief executive
officer and owner, Carlecia McBryde, as “a part-time
‘as needed' instructor at HTS, ” where she
“taught students to become certified nursing
assistants, ” which was the service Defendants'
business provided. Jt. Stmt. of Facts ¶¶
Believing that she had not been paid her full wages, Hardison
complained, and McBryde told her Defendants were “done
with [her], ” which Hardison perceived as a termination
of her employment. Am. Compl. ¶¶ 4, 44, 50, ECF No.
13-1; Hardison Dep. 15:24-16-1, Jt. Rec. 70, ECF No. 42.
Hardison filed a five-count complaint in federal court,
alleging failure to pay wages, in violation of Maryland Wage
Payment and Collection Law (“MWPCL”), Md. Code
Ann., Lab. & Empl. §§ 3-502 and 3-505;
retaliatory termination, in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201-219; and wrongful discharge, in violation of Maryland
public policy. Compl. ¶¶ 51-78, ECF No. 1;
see Am. Compl. ¶¶ 58-87 (same counts). Now
pending are the parties' cross-motions for summary
judgment. ECF Nos. 35, 39. Because Hardison must establish that
she was an employee of Defendants to prevail on any of her
claims, yet the undisputed facts demonstrate that she was an
independent contractor, I will grant Defendants' motion
and deny Plaintiff's motion.
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Instead, the
evidentiary materials submitted must show facts from which
the finder of fact reasonably could find for the party
opposing summary judgment. Id.
prevail on a claim under the FLSA, the MWPCL, or Maryland
common law, Hardison first must show that she was an
“employee” of Defendants. See 29 U.S.C.
§ 215(a)(3) (providing that it is “unlawful for
any person . . . to discharge . . . any employee
because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to
[the FLSA]” (emphasis added)); Hall v. DIRECTV,
LLC, 846 F.3d 757, 764 (4th Cir. 2017)
(“[I]ndependent contractors [are] outside of the
FLSA's scope.”); Butler v. PP & G,
Inc., No. WMN-13-430, 2013 WL 5964476, at *2 (D. Md.
Nov. 7, 2013) (discussing FLSA and MWPCL); Cogan v.
Harford Mem. Hosp., 843 F.Supp. 1013, 1022 (D. Md. 1994)
(noting that, while employee could sue for wrongful discharge
under Maryland public policy, Maryland courts had not
extended right to bring public policy claim of wrongful
discharge under Maryland law to independent contractor);
Talbot v. Baltimore City Bd. of Sch. Comm'rs,
No. 0308 Sept. Term 2014, 2016 WL 1749697, at *8 (Md. Ct.
Spec. App. May 3, 2016) (relying on Cogan and
concluding that “Mr. Talbot's claim for wrongful
termination fails because he was not an employee”). The
FLSA defines an employee as “any individual employed by
an employer” and it defines “employ” as
“to suffer or permit to work.” 29 U.S.C.
§§ 203(e)(1), (g). Though these definitions
deliberately are broad, the FLSA recognizes a difference
between employees, which it covers, and independent
contractors, which it does not. See Schultz v. Capital
Int'l Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006).
And, “putting on an ‘independent contractor'
label does not take the worker from the protection of the
[FLSA]” when “the work done, in its essence,
follows the usual path of an employee.” Rutherford
Food Corp. v. McComb, 331 U.S. 722, 729 (1947).
a worker is an employee or an independent contractor under
the FLSA is ultimately a legal question . . . .”
McFeeley v. Jackson St. Entm't, LLC, 825 F.3d
235, 240 (4th Cir. 2016) (citing Schultz, 466 F.3d
at 304). To answer this question, “courts look to the
‘economic realities of the relationship between the
worker and the putative employer'” and consider six
(1) the degree of control that the putative employer has over
the manner in which the work is performed; (2) the
worker's opportunities for profit or loss dependent on
his managerial skill; (3) the worker's investment in
equipment or material, or his employment of other workers;
(4) the degree of skill required for the work; (5) the
permanence of the working relationship; and (6) the degree to
which the services rendered are an integral part of the
putative employer's business.
McFeeley, 825 F.3d at 241 (quoting Schultz,
466 F.3d at 304-05); see also Salinas v. Commercial
Interiors, Inc., 848 F.3d 125, 139, 150 (4th Cir. 2017)
(noting that these “Silk factors, ” now
applied as the “economic reality” test, first
were discussed in United States v. Silk, 331 U.S.
704, 715 (1947)). None of these factors is dispositive on its
own, id., and “courts look at the totality of
the circumstances” instead of “applying these
factors ‘mechanically, '” Herman
v. Mid-Atlantic Installation Servs., Inc., 164
F.Supp.2d 667, 671 (D. Md. 2000); see also Martin
v. Selker Bros., Inc., 949 F.2d 1286, 1293 (3d
Cir.1991) (“[T]he determination of the employment
relationship does not depend on isolated factors but rather
upon the ‘circumstances of the whole
activity.'” (quoting Rutherford Food, 331
U.S. at 730)).
focal point is whether the worker ‘is economically
dependent on the business to which he renders service or is,
as a matter of economic [reality], in business for
himself.'” Schultz, 466 F.3d at 304
(quoting Bartels v. Birmingham, 332 U.S. 126, 130
(1947)); see also id. at 305 (“No single
factor is dispositive; again, the test is designed to capture
the economic realities of the relationship between the worker
and the putative employer.”); Dubois v. Sec'y
of Def., 161 F.3d 2, 1998 WL 610863, at *4 (4th Cir.
1998) (Table) (Murnaghan, J., dissenting) (“The
touchstone of our inquiry . . . is whether the alleged
employees are, ‘as a matter of economic reality ...
dependent upon the business to which they render service,
' or in business for themselves.” (quoting
Bartels, 332 U.S. at 130)). Indeed, “[i]n
United States v. Silk, [the Supreme Court] held that the
relationship of employer-employee . . . was not to be
determined solely by the idea of control which an alleged
employer may or could exercise over the details of the
service rendered to his business by the worker or
workers.” Bartels, 332 U.S. at 130. Thus,
while “control is characteristically associated with
the employer-employee relationship . . . employees are those
who as a matter of economic reality are dependent upon the
business to which they render service.” Id.
Significantly, “the collective answers to all of the
inquiries” cannot “produce a resolution which
submerges consideration of the dominant factor-economic
dependence.” Dubois, 1998 WL 610863, at *4
(Murnaghan, J., dissenting) (quoting Usery v. Pilgrim
Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 1976));
see also Id. (“It is often possible for both
sides to point to the presence or absence of particular
Silk factors. Yet such an attempt to apply
mechanically the components of Silk represents a
distortion of that case.” (quoting Weisel v.
Singapore Joint Venture, Inc., 602 F.2d 1185, 1189 (5th
parties apply six similar and overlapping factors from
Baltimore Harbor Charters, Ltd. v. Ayd, 780 A.2d
303, 318 (Md. 2001). But, the economic reality test applies to
the MWPCL also. See Avila v. Caring Hearts & Hands
Assisted Living & Elder Care, LLC, No. TDC-15-3943,
2016 WL 4083365, at *4 (D. Md. Aug. 1, 2016) (“[T]he
MWPCL contains a definition of ‘employer'
sufficiently similar to apply the same economic reality
test.”); see also McFeeley v. Jackson St.
Entm't, LLC, 825 F.3d 235, 240 (4th Cir. 2016)
(stating that, where a plaintiff's “claims under
Maryland labor laws run parallel to their claims under the
FLSA, [the court's] analysis of federal law extends as
well to the state law claims”); Campusano v.
Lusitano Constr., LLC, 56 A.3d 303, 308 (Md. Ct. Spec.
App. 2012) (“Despite its differences from the Wage and
Hour Law [to which the Maryland court of Appeals applies the
economic reality test], the Payment and Collection law
[MWPCL] is sufficiently similar for the economic reality test
to apply.”). Under Maryland common law, courts consider
five factors to determine whether a worker is an employee,
but “the power to control the employee's conduct is
the most important factor, ” with “‘the
power to select and hire the employee, . . . the payment of
wages, . . . the power to discharge, . . . and (5) whether
the work is part of the regular business of the
employer” being secondary. Elms v. Renewal by
Andersen, 96 A.3d 175, 182-83 (Md. 2014) (quoting
Whitehead v. Safway Steel Products, Inc., 497 A.2d
803, 808-09 (Md. 1985)). It was “Congress's intent
that the FLSA's definition of ‘employee'
encompass a broader swatch of workers than would constitute
employees at common law.” Salinas v. Commercial
Interiors, Inc., 848 F.3d 125, 137 (4th Cir. 2017).
Consequently, if a worker is not an employee under the
FLSA's broader definition, the worker also is not an
employee at common law. See Id. Therefore, I will
start by considering whether, under the totality of the
undisputed facts, Hardison is an employee of Defendants based
on her economic dependency and application of the economic
the degree of control that Defendants had over how Hardison
performed her work, it is undisputed that Hardison
“used curriculum and lesson plans developed by
HTS.” Jt. Stmt. of Facts ¶ 6. But, McBryde
testified that, while Defendants' curriculum includes
“lesson plans” and “a template to assist
with teaching, ” instructors do not “have to
follow that exact curriculum, ” provided that they
“teach according to what's on the curriculum,
” and therefore Hardison “could follow her own
structure as long as she's teaching the material
that's in the chapter and what needs to be covered for
that particular day.” McBryde Dep. 61:20-62:16, Jt.
Rec. 18. According to McBryde, Hardison “could have
created a teaching plan. Most instructors do.”
Id. at 64:18-19, Jt. Rec. 18. Hardison agreed that
Defendants “provided the information” and gave
her “[g]uidelines on what they wanted [her] to
teach.” Hardison Dep. 96:20-23, 97:17- 22, Jt. Rec. 90.
She did not offer any evidence that Defendants dictated how
she was to convey that information to the students.
McBryde testified that “[n]obody” supervised Ms.
Hardison or observed her in the classroom, although
“Healthcare Training Solutions ensured that Ms.
Hardison was doing her position . . . by reviewing the daily
logs to see that the lesson plan was followed.” McBryde
Dep. 28:6-9, 29:14-18, 30:3-6, Jt. Rec. 9-10. And, while
Hardison testified that “secretary/manager” Tracy
Durant was her “direct supervisor, ” when asked
to describe “how . . . Ms. Durant supervise[d] [her],
” she said that Ms. Durant “would give [her] the
dates . . . that [she] needed to work” and relay
“communications per Ms. McBryde.” Hardison Dep.
80:1-12, Jt. Rec. 86. Thus, Defendants only controlled the
subjects that Hardison presented to the students, without
controlling how Hardison presented the lessons. This factor
weighs in favor of independent contractor status. Compare
Herman, 164 F.Supp.2d at 672 (concluding that
[defendant] did “not exercise the type of control
necessary to label the [workers] ‘employees,
'” even though the workers had to, inter
alia, “install the cable systems in accordance
with [defendant and cable company's] strict
specifications”; reasoning that “requiring the
[workers] to meet [defendant and the cable company's]
installation specifications [was] entirely consistent with
the standard role of a contractor who is hired to perform
highly technical duties” because a
“‘[quality control] constraint inheres in any
subcontractor relationship'” (citation omitted)),
with Etienne v. Ameri Benz Auto Serv. LLC, No.
PWG-14-2800, 2016 WL 1222569, at *5 (D. Md. Mar. 29, 2016)
(concluding that plaintiff was employee where he could not
choose how to performed administrative tasks he was assigned
at work), and Randolph v. PowerComm Const., Inc.,
309 F.R.D. 349, 356-57 (D. Md. 2015) (“Where putative
employers provide specific direction for how workers,
particularly low-skilled workers, are to perform their jobs,
courts have weighed the control factor in favor of employee
status.” (quoting Montoya v. S.C.C.P. Painting
Contractors, Inc., 589 F.Supp.2d 569, 579 (D. Md.
2008))), recons. denied, No. GJH-13-1696, 2015 WL
6438087 (D. Md. Oct. 20, 2015).
regard to opportunities for profit or loss, when the
“work is, by its nature, time oriented, not project
oriented, courts have weighed the second Silk factor
in favor of employee status.” Montoya v. S.C.C.P.
Painting Contractors, Inc., 589 F.Supp.2d 569, 580 (D.
Md. Dec. 16, 2008). Thus, workers who “were paid at a
set rate for each shift and whose work schedules were
dictated by the employer's needs” were employees,
whereas workers who could “improv[e] their technique so
as to service more customers faster” were independent
contractors. Id. Hardison was paid an hourly rate,
which militates in favor of employee status, but it is
disputed whether her schedule was dictated by Defendants'
needs. According to McBryde, Hardison “would just call
[HTS] when she wanted supplemental work here and
there.” McBryde Dep. 30:20-22, Jt. Rec. 30. McBryde
testified that HTS “didn't need her to work.”
McBryde Dep. 35:18:21, Jt. Rec. 11. Hardison testified to the
contrary that Tracy Durant “would call [her] and tell
[her] if they had availability, if she needed
[Hardison].” Hardison Dep. 97:23-98:4, Jt. Rec. 90-91.
When a date was available, Hardison “could agree to the
day or not.” ...