Exhibit,Appendix: Robert Harris v. Intimo, Inc., Nathan Nathan, Tommy Nathan, Moris Zilkha, Prestige Employee Administrators, Inc. A/K/A Prestige Employee Administrators, Prestige Employee Administrators Ii, Inc. A/K/A Prestige Employee Administrators, John Does 1 - 10, Abc Corps. 1 - 8

On January 10, 2017 a Exhibit,Appendix was filed involving a dispute between Robert Harris, and Abc Corps. 1 - 8, Intimo, Inc., John Does 1 - 10, Moris Zilkha, Nathan Nathan, Prestige Employee Administrators Ii, Inc. A K A Prestige Employee Administrators, Prestige Employee Administrators, Inc. A K A Prestige Employee Administrators, Tommy Nathan, for Commercial - Contract in the District Court of New York County.

Preview
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Prestige Exhibit 1, Neto Decision

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
APR 2 2 2004
CASE NO. 03-61751-CIV-HUCK/TURNOFF

CLARENCE MADDOX
CT.
SAMUEL NETO, on his own behalf and °""s D Or °RI.

others similarly situated,

Plaintiff,

vs.

THE CAR SALON, LLC., a Florida

corporation, and PBS OF CENTRAL
FLORIDA, INC., a Florida corporation,

Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

This Fair Labor Standards Act ("FLSA") case is before the Court on Defendant, PBS of

Central Florida, Inc.'s ("PBS") Motion to Dismiss or, in the Alternative, Motion for Summary

Judgment [DE # 24], filed on January 21, 2004. On January 26, 2004, the Court ordered that,

because PBS's Motion relied on matters outside the Complaint, the Motion to Dismiss was denied.

However, the Court ordered that it would consider PBS's Motion for Summary Judgment after

Plaintiff, Samuel Neto, had an opportunity to take discovery ofthe issues raised in that motion. Neto

has completed his discovery and has filed his memorandum and supplemental memorandum in

opposition. PBS has filed itsreply memorandum. Therefore, the Motion for Summary Judgment is

ripe for resolution.

"employer"
In its motion, PBS asserts that it isnot an under the terms of the FLSA and,

therefore, is notliable to Neto forunpaid overtime (Count I) or Statutory and Contractual Guarantees

parties'
and Obligation of Employee Leasing Company (Count II). The Court has reviewed the

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respective legal memoranda, the record and relevant case law and for the remons stated below finds

that PBS was not Neto's employer for purposes of his FLSA claim. Therefore, PBS's Motion for

Summary Judgment will be granted as to Count I.

Background

On September 17, 2003, Neto filedhis original Complaiñt against Defendant, The Car Salon,

L.L.C., in which he alleged that The Car Salon operated a car wash where Neto worked as a laborer,

was his employer and was liable to him for unpaid overtime pay under the FMLA. The Car Salon

answered the Complaint, admitting that itwas Neto's employer but denying liability under the FMLA.

On December 11, 2003, Neto filedhis First Arsended Complaint adding PBS as a Defendant, alleging

company"
that PBS was an "employment leasing that exercised control over Car Salon employees

and as such was liableas Neto's employer. In his First Amended Complaint, Neto seeks recovery of

alleged unpaid overtime pursuant to the FLSA (Count I) and pursuant to a "Statutory and

Company"
Contractual Guarantee and Obligations of Employee Leasing (Count II). PBS answered

the First Amended Complaint, denying that itwas Neto's employer or was liable in any respect to

him. On March 10, 2004, a default was entered against Car Salon. On January 21, 2004, PBS filed

following.1
this motion in which ithas established the

PBS is a professional employer organization, otherwise known as an employee leasing

company. As such, PBS provides payroll, human resource and employee benefits services to its

clients, such as Car Salon. PBS entered a Client Services Agreement with Car Salon to provide

employee leasing and payroll services to Car Salon. In particular, PBS would, in return for a fee to

IThese facts are taken from PBS's Statement of Material Facts Upon Which There Is No
Issue To Be Tried which Neto did not refute and Neto's Statement of the Facts. In general, there
are no material facts in dispute, only the implication of those facts.

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be paid by Car Salon, issue paychecks to employees on itsown account in amounts and as dictated

workers'
by Car Salon, pay related employment taxes to the governmental agencies, pay

compensation premiums, and pay üñcmployment compensation taxes. The Client Services Agreement

incorporated the requirements of Fla.Stat. §468.525(b), which obligated PBS to pay Car Salon's

employees'
wages regardless of whether Car Salon provided payroll funds to PBS. Nevertheless, at

alltimes material, Car Salon retained itsstatus as employer of itsworkers, including Neto. Car Salon

exclusively exercised control over Neto's day-to-day duties and job sites of Neto. Pürsuant to the

agreement between PBS and Car Salon, an employee, upon being hired by Car Salon, receives a

packet of information from PBS describing the employee leasing arrangement and detailing the

benefits available to the employee. However, PBS in no way directed or controlled Neto's work, all

of which was performed at Car Salon's place of business and for the benefit of Car Salon, not PBS.

At alltimes, Car Salon exercised exclusive actual control over Neto and his employment at the car

wash. PBS did not control the manner or means by which Neto and other Car Salon employees

performed the work assigned to them by Car Salon. PBS did not own or control the facilitywhere

Neto worked, nor did PBS own or control the equipment and facilities used by Neto while working

at Car Salon. Neto's work was integral to Car Salon's business as a car wash, but not to PBS's

business as an employee leasing company. PBS paid the leased employees at Car Salon according

to the directions provided by Car Salon. In this regard, PBS required that it be paid the payroll

amount before Car Salon received itspayroll cheeks. The relationship between Plaintiff and PBS,

similar to the one between PBS and any other leased employee at Car Salon, was to last only as long

as Car Salon wanted it to last. Once Car Salon cancelled its relationship with PBS, PBS's

relationship with the leased employees would end. However, ifPBS cancelled itsrelationship with

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Car Salon, the leased employees would continue to work at Car Salon. With respect to the leased

employees'
actual working relationship at thecar wash, Car Salon alone: (a) recruited and hired them

(hiring whichever employees itchose), determined how many persons to hire, (b) interviewed them,

employees'
work schedule, determined theirjob descriptions and requirements (h) determined
(g)

whether employees would work more than 40 hours in any given workweek, and ifso, how many

hours the employees would work, (I)decided whether to report any overtime hours worked to PBS,

workers'
(j)managed the day-to-day activities, and the details and methods of their work, (k)

determined what wages the employees would receive, and whether and when raises would be given,

(1)determined how long workers would be employed as a leased employee, (m) determined how

much, ifany, sick pay, vacation pay, bonus pay or commissions would be paid to workers, (n)

determined for what offenses workers would be discharged, (0) assigned the workers new tasks, and

(p) determined the safety of any equipment to be used by the workers.

In response to these uncontested facts, Neto established that, pursuant to the Client Service

employees'
Agreement, ifCar Salon was unable to pay the wages PBS would pay them. In addition,

Neto contended that PBS exercised control over Car Salon employees, for FLSA purposes, by (1)

providing a new employee packet to allCar Salon employees which outlined the relationship between

Car Salon and PBS and advising the employees of the services offered by PBS; (2) providing a PBS

employee handbook to allCar Salon employees; (3) requiring Car Salon employees to sign for the

PBS handbook; (4) advising the employees that PBS was available to answer their questions

regarding benefits, payroll and human resources issues; (5) directly advising Car Salon employees

workers'
regarding benefits, compensation and other matters; (6) requiring the employees to report

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to PBS any incidents of sexual harassment or other violations of federal and state employilient laws;

(7) providing Car Salon with human resources assistance and training, and (8) PBS preparing the

payroll for Car Salon and paying wages to Car Salon employees. Neto also contended that pursuant

to itscontract with Car Salon, as well as its statutory obligation pursuant to Fla.Stat. § 468.525 et

seq., PBS retained sufficient authority over, or right to exercise authority over, Car Salon's

employees, including Neto, to qualify as a joint employer under the FLSA.

Summary Judgment Standard

Summary judgment isappropriate ifthe pleadings, depositions, and affidavits show that there

isno genuiñc issue of material fact, and that the moving party is entitled to judgment as a matter of

"material"
law. Fed.R.Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 3 17, 322 (1986). An issue is

ifit isa legal element of the claim under applicable substantive law which might affect the outcome

of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Allen v. Tyson Foods, Inc.,

"genuine"
121 F.3d 642, 646 (11th Cir. 1997). An issue is ifthe record taken as a whole could lead

a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for

summary judgment, the Court must review allthe evidence and allfactual inferences drawn therefrom

in the light most favorable to the non-moving party, and determine whether that evidence could

reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23 ; Allen, at 646. While the burden on

the movant isgreat, the opposing party has a duty to present affirmative evidence in order to defeat

"scintilla"
a properly supported motion for summary judgment. Anderson, 477 U.S. at 252. A mere

of evidence in favor of the non-moving party, or evidence that ismerely colorable or not significantly

probative isnot enough. Id.;see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (1 1th

Cir. 1996) (conclusory allegations and conjecture cannot be the basis for denying summary

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judgment).

Neto's Claim Under the FMLA

The deterraination of whether an employer/employee relationship exists, within the meaning

of federal labor statutes, such as the FLSA, is a question of federal law. See Aimable v. Long and

Scott Farms, 20 F.3d 434, 440 (11th Cir. 1994), cert denied, 513 U.S. 943 (1994) (interpreting the

"employer"
definition of under the Migrant and Semoñal Agricultural Worker Protection Act

("MSAWPA"), 29 U.S.C. §§ 1801 et seq., and the FLSA, 29 U.S.C. §§ 201 et seq.); see also

Antenor v. D & S Farms, 88 F.3d 925 (11th Cir. 1996); Jeanneret v. Aron's East Coast Towing,

2002 U.S. Dist. LEXIS 12200, at *5 (S.D. Fla. Jan. 29, 2002), per curiam aff'd, No. 02-11323, slip

op. (11th Cir. Nov. 15, 2002).

As a threshold matter, for Neto to prevail on his claims against PBS, he must establish that

"employed"
PBS him within the meaning ofthe FLSA. Congress expressly rejected the common-law

definition of employment, which is based on concepts of control and supervision. See
limiting

Walling v. Portland Terminal Co., 330 U.S. 148, 150-51 (1947); Aimable, 20 F.3d at 439. Rather,

"employs" permits"
an entity a person under the FLSA ifit "suffers or the individual to work. An

permits"
entity "suffers or an individual to work if,as a matter of economic reality, the individual is

dependent on the entity ("economic realities test"). Goldberg v. Whitaker House Cooperative, Inc.,

366 U.S. 28, 33 (1961); Aimable, 20 F.3d at 439.

Whether the putative eniployer and employee intended to create an employment relationship

isirrelevant to the economic realities test. See Donovan v.New Floridian Hotel, Inc., 676 F.2d 468,

471 (11th Cir. 1982). Nor isthe labeling of an individual as an employee dispositive ofthe issue. See

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Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947). Rather, the courts look to whether

the employee depends on the putative employer for his economic livelihood based on their actual

working relationship. See Antenor, 88 F.3d at 937-38.

There isno question here that Car Salon was Neto's employer. Therefore, the determinative

issue is whether PBS was a joint employer. The FLSA specifically covers joint employment

employment"
relationships. See id.at 929; 29 C.F.R. § 791.2 (defining "joint under the FLSA). In

determining whether a joint employment relationship exists, the courts traditicilally consider several

relevant factors: (1) the nature and degree of the putative employer's control of the workers; (2) the

degree of supervision, direct or indirect, of the work; (3) the right, directly or indirectly, to hire, fire,

workers' workers'
or modify the employment conditions; (4) the power to determine the pay rates

workers'
or methods of payment; (5) the preparation of payroll and payment of wages; (6) the

ownership of the frilities where the work OCCulTed; (7) whether the work performed a line job

integral to the end product; and (8) the relative investiiicut in equipment and facilities. See Antenor,

88 F.3d 932 (citing Aimable, 20 F.3d at 440-45).

In applying the factors, a federal court is guided by several principles First, the question of

employment"
"joint isnot dependent on whether the worker ismore economically dependent on one

putative employer than on the other, because more than one entity can be an employer. Second, the

existence ofa joint employment relaticilship depends on the economic reality ofall the circumstances,

rather than any one factor. Third, the factors are used because they are indicators of economic

dependence. the joint employment is not determined a mathematical formula -
Fourth, relationship by

the court must view each of the factors qualitatively to assess the evidence of economic dependence.

Fifth, the inquiry must focus on the issue of economic depeiidency, not common-law concepts of

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employment. Sixth, the FLSA is a remedial statute, and courts must construe itbroadly. See

Antenor, 88 F.3d at 932-33.

In evaluating these traditional factors ofjoint employment in the context ofthe unrefuted facts

presented here, itis beyond dispute that Car Salon, not PBS, exercised actual control over the terms

and conditions of Neto's employment as a car washer at the car wash and that he was dependent on

only Car Salon. The economic reality here isthat PBS was not Neto's joint employer. Indeed, Neto

does not vigorously argue that PBS exercised real control and authority over him with regard to the

traditional employer-employee factors discussed above. It isbeyond real dispute that Car Salon, not

PBS, actually, as opposed to theoretically, exercised virtually all real control over Neto in his

employment at the car wash. At most, Neto has established that PBS performed human resources

and other administrative functions as contracted in the Client Service Agreemeñt. In stark contrast,

Car Salon hired Neto, and had the authority to firehim, determined Neto's pay rates and methods

of payment, owned all of the car wash facilities where Neto worked, supervised Neto's work,

assigned his job tasks and otherwise made the relevant day-to-day decisions regarding Neto's

employment. Because itis so clear that only Car Salon exercised true authority over Neto, a further

detailed discussion of the traditional factors is not warranted. However, Neto contends that

irrespective of the traditional factors, PBS must be considered his joint employer due to its

undertakings pursuant to the Client Services Agreement. Therefore, the Court must address this

contention.

There is no dispute that PBS is an employee leasing company subject to the provisions of

Fla.Stat. § 468.520 et seq., and that PBS entered into the Client Service Agreement with Car Salon

pursuant to that statute, which regulates employee leasing companies. Under that statute, "employee

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leasing"
is an arrangement whereby a leasing company, such as PBS, assigns employees to a client,

such as Car Salon, and allocates the direction of and control over the leased employees between them.

Section 468.525(4) provides that the employee leasing company reserves a right of direction and

control over leased employees assigned to the client's location, assumes respomibility for the payment

of wages to the leased employees without regard to payments the client to the leasing cou1pany,
by

assumes fullrespomibility for the payment of payroll taxes, retaiñs authority to hire, terminate,

disciplie, or reassign the employees (althóügh the client company way have the right to accept or

cancel the assignment of any leased employee), and retains a right of direction and control over

management ofsafety, risk, and hazard control at the work site. The employee leasing company must

also give notice regarding the relationship between the employee leasing company and the client

company to each leased employee. See Jeanneret v. Aron's East Coast Towing, 2002 U.S. Dist.

LEXIS 12200, at *11.

It would appear, facially, that Fla.Stat. § 468.520 et seq. and the Client Service Agreement

support Neto's contention that PBS ishis joint employer. There are several PBS undert&Mgs which

suggest that ithas the right to exercise control over Car Salon's employees. The agreement seems

to contemplate that PBS isleasing itsemployees to Car Salon and that the arrangement isone of true

joint employment. Moreover, PBS, under the agreement and pursuant to Florida Statutes, assumes

specified obligations and duties with respect to Car Salon's employees. Accordingly, Neto contends

that since PBS is an employee leasing company governed by Florida's regulatory scheme, which

contemplates that the employee leasing company possesses at least some important aspects of an

employer under that scheme, PBS is,therefore, Neto's joint employer for FLSA purposes.

However, as indicated above, whether an entity is an employer for purposes of the FLSA is

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a question of federal law. The requirenieñts of state law regulating the employment relationship are

realities"
only relevant to the extent that they reflect the "economic of the relationship and ifthe

parties actually followed those requirements. The Supreme Court and the Eleventh Circuit have

clearly instructed that in determining whether an employment relationship exists for FLSA and similar

federal statutes purposes, the court must examine the actual working relationship between the parties

to determine whether the employee was economically dependent on the putative employer. As

indicated above, in undertaking that exmn;nation ofreal working relationship between PBS and Neto

in view of the traditional employment factors test discussed above, there is no doubt that the

economic realityisthat Car Salon was Neto's sole employer. Accordingly, summaryjudgment should

be entered as to Count I.

Neto's State Claim

Count II, the only rersaining claim, alleges a cause of action against Defendant PBS for

violations of statutory and contractual guarantees and obligations pursuant to Fla.Stat.

§486.525(4)(b) (the "state claim"), which is before this Court under the Court's supplemental

jurisdiction.2
The Court may sua sponte raise a jurisdictional defect at any time. See Barnett v.

Bailey, 956 F.2d 1036, 1039 (11th Cir. 1992). Under 28 U.S.C. § 1367(c), the Court has discretion

to decline to exercise supplenicñtal jurisdiction over non-diverse state law claims where the court

has dismissed allclaims over which ithas original jurisdiction. See Palmer v. Hospital Authority of

Randolph County, 22 F.3d 1559, 1567 (1 1th Cir. 1994). In this case, this Court's granting of

summary judgment on Plaintiff's FLSA claim dismisses the count over which the Court has original

jurisdiction. Plaintiff's state claim apparently concerns a case of firstimpression, involving a uniquely

2
The Court does not have diversity jurisdiction as to Count II. See 28 U.S.C. §1332.

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precedent.3
state claim and requiring statutory interpretation for which there may not be state

Therefore, it would be better for a Florida court to resolve such legal issues with respect to the

alleged violations of Fla.Stat. §486.525(4)(b). Accordingly, the Court has determined that dismissal

ismost appropriate for resolution ofthese purely state law questions. This isespecially true since the

Court is dismissing the PlaintifFs federal law claims prior to trial. See United Mine Workers of

America v. Gibbs, 383 U.S. 715, 726 (1966) (stating that dismissal of state law claims is strongly

encouraged where the federal law claims are dismissed before trial),see also Stachel v. City of Cape

Canaveral, 51 F. Supp. 2d 1326, 1332 (M.D. Fla. 1999) (after granting summary judgment on the

plaintiff s § 1983 claims, dismissing the plaintiff s state law claims on itsfinding that "the remaining

state law claims are best resolved by Florida courts").

Conclusion

For the reasons stated above, itis hereby

ORDERED that the Court GRANTS the Motion for Summary Judgment [DE #24] of

Defendant PBS of Central Florida, Inc. as to Count I of the Complaint, and Count II is hereby

DISMISSED without prejudice for lack of subject matter jurisdiction. It isfurther

DONE and ORDERED in Chambers at Miami, Florida this a ay of April, 2004.

PAUL C. HUCK
UNITED STATES DISTRICT JUDGE

Copies furnished to:

All Counsel of Record

3
The Court notes that neither side was able to cite to any relevant precedent.

Case Info

Judge

Nancy M. Bannon Track Judge’s New Case

Case No.

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Document Filed Date

February 03, 2020

Case Filing Date

January 10, 2017

County

Parties

ABC Corps. 1 - 8 Defendant
BAGINSKI, ERIC TADEUSZ Attorney for the Defendants
Intimo, Inc. Defendant
John Does 1 - 10 Defendant
LICHTENBERG, DAVID B. Attorney for the Defendant
LICHTENBERG, DAVID B. Attorney for the Defendants
MARCUS, SETH L Attorney for the Defendant
MARCUS, SETH L Attorney for the Defendants
MEYERS, JONATHAN Attorney for the Plaintiff
Moris Zilkha Defendant
Nathan Nathan Defendant
Prestige Employee Administrators II, Inc. a/k/a Prestige Employee Administrators Defendant
Prestige Employee Administrators, Inc. a/k/a Prestige Employee Administrators Defendant
Robert Harris Plaintiff
Tommy Nathan Defendant
JONATHAN MEYER Attorneys for Plaintiffs
Jessica Meyers Attorneys for Plaintiffs
ERIC TANT Attorneys for Defendants

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Exhibit,Appendix: Robert Harris v. Intimo, Inc., Nathan Nathan, Tommy Nathan, Moris Zilkha, Prestige Employee Administrators, Inc. A/K/A Prestige Employee Administrators, Prestige Employee Administrators Ii, Inc. A/K/A Prestige Employee Administrators, John Does 1 - 10, Abc Corps. 1 - 8

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