By: Ogletree Deakins

The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA. Bacon v. Hennepin County Medical Center, 8th Cir., No. 08-1237, Dec. 22, 2008.

Melondy Bacon was employed as a janitor by Hennepin County Medical Center (HCMC). In the summer of 2003, Bacon began periodically to break out in hives while at work. On July 8, 2004, Bacon obtained FMLA paperwork from HCMC, and had the paperwork completed by her physician. According to the doctor’s report, Bacon needed to take intermittent leave for a chronic skin irritation caused by chemicals at work. While the doctor was unable to specify the duration of the necessary intermittent leave, she predicted that Bacon would need treatment approximately once each month, and that 24 hours would be needed for recovery from such treatment. It is undisputed that Bacon’s medical documentation neither specified the length of time during which she would need intermittent leave nor provided a return-to-work date. Bacon submitted the paperwork to her supervisor, telling him that she was going to be on extended leave until she could get an appointment with an allergist.

During the following month, Bacon called HCMC each day on which she was scheduled to work, reporting that she had not yet seen the allergist, and that she would be absent on that particular day. Her absences were recorded by HCMC as FMLA-related. Bacon called in pursuant to HCMC’s policy which requires an employee on indefinite sick leave to call in every day to report an absence.

On August 5, 2004, Bacon stopped calling in to report her absences. On August 11, Bacon’s employment was terminated under a provision of the applicable union contract which states that three consecutive days of absence without notice is considered to be a resignation of employment. Bacon filed for unemployment benefits, explaining that her failure to continue calling in came after she “received information on the federal guidelines for FMLA which did not require any call ins.” Bacon subsequently filed suit in federal court, claiming that HCMC interfered with her rights under the FMLA by terminating her employment.

The district court granted summary judgment in favor of HCMC, and that dismissal was affirmed on appeal to the Eighth Circuit. The Eighth Circuit specifically held that an employer who takes an adverse action against an employee who is exercising FMLA rights will not be liable if the employer can prove that it would have made the same decision had the employee not exercised those rights.

Employers should recognize that HCMC took two actions that assured its ability to successfully defend against Bacon’s claim. First, its request for FMLA leave form requires the employee to acknowledge in writing that the HR policies and the prevailing labor agreement (including the call-in procedure) extend to FMLA leave. Second, HCMC’s employee handbook includes language that provides that the FMLA “does not change the County’s leave of absence procedures” and that the “Human Resources Rules and/or union contracts continue to apply.” Because HCMC had written policies that were consistently enforced, it was therefore able to show that the call-in procedure applied to all extended absences whether or not FMLA-related, and was able to prove definitely that it did not single out Bacon for disciplinary action because she was on FMLA leave.
 

A judge for the United States District Court for the Western District of Washington recently ruled that a Seattle apprenticeship program was the “joint-employer” of a plumbing apprentice for purposes of coverage under the FMLA. Frees v. UA Local 32 Plumbers & Steamfitters, W.D. Wash., No. C07-1469 (11/21/08).

Frees, a plumbing apprentice, was part of an apprenticeship program operated by the Seattle Area Plumbing and Pipefitting Industry Journeyman and Apprentice Training Committee (“JATC”). The program required Frees to complete 10,000 hours of “reasonably continuous employment” and required 216 hours of class time per year. Frees entered the program in 2003 and had worked with 5 different plumbing contractors until his discharge in 2006.

In May 2006, Frees received a call from his wife’s physician ordering emergency testing for his wife to determine whether she was suffering from multiple sclerosis. Frees informed his instructor, and left class early that day. He also missed three subsequent days of work while attending to his wife. Frees was dismissed from the program that same month for poor attendance.

Frees filed suit against JATC and the UA Local 32 Plumbers & Steamfitters, alleging violations of the FMLA. The Union was dismissed on summary judgment on grounds that it was not Frees’ employer. JATC also moved for summary judgment on the grounds that it was not Frees’ “employer” within the meaning of the FMLA.

Under DOL regulations, two or more separate corporations or entities may be treated as a single employer for purposes of counting employees if they have a joint employment relationship. JATC contended that the joint-employer doctrine did not apply, because JATC is an educational or academic institution. JATC argued that the FMLA was designed to protect those in the workplace, as opposed to students. JATC argued that the FMLA should not be interpreted to inhibit an educational institution from taking disciplinary action, including dismissal, against students for missing classes, failing to complete assignments or taking examinations due to family or medical needs.

The court, in finding against JATC, declined to shield academic institutions, solely based upon their “educational” designation. The court found that although JATC identifies itself as an educational institution, the standards for apprenticeship fit more appropriately under an “employer” definition. Under the standards of the program, a commercial plumbing apprentice is required to average 38.5 hours per week working, while only attending class approximately 4.2 hours per week. Furthermore, the JATC standards give the JATC coordinator sole authority to make the apprentices’ assignments, dictate the quantity of assignments, outline wages, and control the amount of time the apprentices remain in a certain rotation. Based upon the factors as a whole, JATC was found to have sufficient control over the apprentices to be considered an “employer” for purposes of the FMLA. The court denied summary judgment, finding a joint-employment relationship existed.
 

The 1st U.S. Circuit Court of Appeals has upheld summary judgment in favor of an employer who asserted that it had terminated the employment of a human resource manager because of his poor performance and a reduction-in-force, and not because of his prior testimony in a sexual harassment claim filed against the company. Dennis v. Osram Sylvania, Inc., No. 07-2670 (1st Cir. Dec. 10, 2008).

In order to set forth a case of retaliation under Title VII, an employee must show that he engaged in a statutorily protected activity, that he suffered an adverse employment action, and that the protected activity and the adverse action were causally connected. Once that prima facie case has been proven, the employer has the burden of offering a legitimate business reason for the adverse action. Once that legitimate reason has been asserted, the employee must prove that the proffered reason was simply a “pretext” for the alleged retaliation.

Richard Dennis was employed with Osram Sylvania from August 1995 until March 2004, when his employment was terminated. At the time of his discharge, Dennis held a position in Osram’s human resources department, representing the company at recruiting fairs and assisting with its internship program. On February 5, 2004, Dennis gave deposition testimony in a case in which a female employee filed a sexual harassment complaint against a co-worker at Osram. The following day, in an instance of unfortunate timing, an investigation was undertaken into a complaint against Dennis which had been received by the company on January 28. In that complaint, an unsuccessful applicant for employment at Osram (Molina) claimed that Dennis had subjected him to “inappropriate and unprofessional” conduct, including references to the applicant’s personal problems, and then sharing details of those problems with a company supervisor.

After a meeting between an Osram in-house counsel and Dennis’ supervisors, it was decided that a written warning would be placed in Dennis’ file. When Dennis was requested to sign a statement to that effect, he refused, and told his supervisor (Franz) that he viewed the Molina investigation as retaliation for his prior testimony in the sexual harassment case. Franz had no knowledge of that deposition at the time that he disciplined Dennis.

Dennis was terminated on March 24, 2004. Franz recommended the termination as part of a reduction-in-force (RIF), stating that Dennis’ performance was “severely weakened” by the Molina investigation, and that the RIF required him to choose between Dennis and another employees, who Franz considered to be a “high achieving human resources manager.” Dennis then filed a complaint under the New Hampshire state anti-discrimination law. The case ultimately was removed to federal court, where summary judgment was granted in favor of Osram. Dennis appealed that dismissal.

The First Circuit upheld the lower court’s decision, stating that Dennis had not set forth the third prong of his prima facie case, since he was unable to connect his protected deposition testimony to his subsequent termination. The court based that conclusion on the fact that the individuals responsible for Dennis’ termination “knew nothing about the [prior] deposition.” The court alternatively concluded that even if Dennis had successfully established a prima facie case of retaliation, Osram had set forth legitimate reasons (prior poor performance and the RIF) for the termination, and that Dennis was unable to show that those reasons were simply pretext for retaliation.

Although this case was decided on the specific facts and testimony in the matter, the court’s decision provides some direction in the analysis of a retaliation claim, and once again underscores the importance of full and objective documentation. The court found that much of Dennis’ argument regarding the company’s actions was based upon unsupported speculation and inference. Dennis offered no evidence that the individuals who were involved in the decision to terminate his employment consulted with anyone who attended the deposition which Dennis viewed as his “protected activity.” Further, because the company was able to support Dennis’ poor performance with documentation, it was able to support its decision in the RIF, and Dennis was unable to carry his burden to prove that the rationale for his termination was pretextual.

The Fair Labor Standards Act provides that employers violating the Act’s overtime pay requirements are liable for the amount of unpaid overtime. In addition, such an employer may be held liable for an equal amount of liquidated damages, unless it can show that it acted in “good faith” and with “reasonable grounds for believing” that it was in compliance with the Act. Recently, the 8th U.S. Circuit Court of Appeals held that an employer’s argument that it was unaware that employees were working at more than one franchise location was insufficient to avoid the imposition of liquidated damages. Dept. of Labor v. Barbeque Ventures, LLC., No. 08-1284 (8th Cir., November 28, 2008).

Between May of 2004 and May of 2006, Barbeque Ventures and Old Market Ventures, the defendants in this case, operated five Famous Dave’s restaurants in the Omaha, Nebraska area. The individual owners of the defendants also owned other fast food restaurants in the Omaha area (Godfather’s Pizza and Popeyes Fried Chicken), a number of which had written policies prohibiting employees from working at multiple locations without prior approval. Employees of those restaurants who did work at multiple locations had work hours combined for purposes of calculating overtime pay. Famous Dave’s had no such policy during the period relevant to this case.

During that period, a number of individuals working at Famous Dave’s applied to work at locations other than the one by which they currently were employed. Some of the applications actually included Famous Dave’s as the current employer, and two of them even listed the name and contact information of the employee’s current Famous Dave’s supervisor. The Area Manager who oversaw all five restaurants testified that he visited each of the five restaurants regularly, and recognized some employees working at more than one location.

The defendant companies also engaged a third-party payroll management company to process its payrolls. Neither the employers nor the payroll company tracked whether an individual employee worked at more than one Famous Dave’s location. As a result, work hours from multiple locations were never combined for overtime purposes.

In October 2006, the Department of Labor filed a complaint on behalf of 25 Famous Dave’s employees, seeking over $90,000 in unpaid overtime, as well as liquidated damages, post-judgment interest, and injunctive relief. The court granted the DOL’s motion for summary judgment with respect to the monetary damages. Defendants appealed only the imposition of liquidated damages, arguing that they established a good faith defense, and had provided reasonable grounds for believing that they had not violated the FLSA.

The Eighth Circuit upheld the award of liquidated damages, finding that the defendants had not established the required “honest intention to ascertain and follow the dictates of the FLSA.” It went further and, in response to the defendants’ argument that they were unaware that employees worked at multiple locations, specifically stated that “lack of knowledge is not sufficient to establish good faith.” In addition, the court held that delegating the payroll function to a third-party does not rid the employer of the duty to comply with the FLSA. Because the defendants failed to show an affirmative good faith effort to comply with the FLSA, the court did not have to address the issue of whether the companies had provided reasonable grounds for believing they had not violated the Act, and upheld the imposition of liquidated damages.

This case is a clear example of the importance of an employer’s compliance with the overtime regulations of the FLSA. Misunderstanding of the law’s provisions, or an absence of willful violation is not sufficient to avoid liability. To avoid liability, an employer must affirmatively establish that he acted in good faith by attempting to ascertain the Act’s requirements, and that any subsequent violation was inadvertent. Complete documentation of work hours, well-constructed and consistently implemented pay policies, and recognition of the full reach of the FLSA’s provisions can assist in establishing such good faith.

The Fair Labor Standards Act requires that overtime compensation be paid at a rate of not less than one-and-a-half times the regular rate of pay of all hours worked in excess of 40 during a particular workweek. Recently, the Department of Labor’s Wage and Hour Division responded to a request for an opinion on whether compensation for “on-call” time in a specific week may be averaged over a two week pay period for purposes of computing the regular rate of pay on which employees’ overtime wages were based during the entire pay period. In response, the DOL informed the employer that an employee’s regular rate of pay must be computed on a workweek basis, and that payment for on-call time must be attributed to the specific workweek that included the on-call assignment. Wage and Hour Opinion Letter, FLSA 2008-6, 9/22/08 (released 11/14/08).

DOL regulations generally require that overtime pay be based upon the average hourly wage earned during a single workweek. The calculation is done by first determining the “regular rate of pay” for the employee. That is done by determining the total wages earned during a workweek, and dividing that number by the hours actually worked. The resulting figure is the regular rate of pay earned by the individual during that workweek. Overtime pay is then calculated by multiplying that number by 1.5 (to determine overtime rate of pay), and then multiplying that figure by the actual number of overtime hours worked.

In this case, employees at a city’s water treatment plant are asked to be on call during one week each month. In addition to an hourly wage for hours worked, they are paid $2.50 for each on-call hour. During that on-call time, they are required to wear a pager and to respond within 30 minutes to any work-related emergency. However, according to the city, employees rarely are called back to work and often go months without having to report for duty during an on-call period. The city recognizes that on-call pay must be included in computing the regular rate of pay for employees’ overtime calculations, but wants to spread the on-call pay across the two-week pay period within which the on-call compensation is received. The DOL states that such calculation would not be consistent with its regulations and that instead, the on-call compensation must be attributed to the specific workweek in which the on-call hours occurred.

An employee who is not required to remain on the employer’s premises, and is simply required to be available during a certain time period is not “working” while on call. Therefore, those hours generally are not calculated in the number of hours worked to reach the 40-hour threshold for overtime. The payment received for that period of time, however, is paid as compensation. Therefore, that amount must be calculated as part of an individual’s “regular rate of pay” for purposes of overtime calculations.

The DOL’s opinion letter includes an example: if an employee earning $10 per hour works 40 hours in workweek one of a two-week pay period and works 45 hours at $10 per hour and in addition to his 40-hour wage earns $100 of on-call compensation in workweek two, the regular rate of pay would be calculated separately for workweeks one and two. The additional on-call pay would raise the employee’s regular rate of pay for workweek two. That higher regular rate would also form the basis of the overtime pay for the 5 overtime hours worked during that week, resulting in a higher overtime pay than if the employer had spread the on-call pay over the entire two week calculation of “regular rate of pay.”

As set forth in this opinion letter, an employee’s regular rate of pay must be computed on a workweek basis, and payment for on-call time must be attributed to the week in which the on-call time actually occurred. Any other method of calculation will violate DOL regulations that guide overtime pay.
 

Under Title VII, an employer can be held liable for a hostile work environment created by a supervisor. That situation differs from a hostile work environment created by a co-worker, where the company is liable only if the complainant can show that the company was negligent in discovering or remedying the situation. Recently, the 7th U.S. Circuit Court of Appeals reviewed the definition of “supervisor” under Title VII, and determined that a supervisor is not a person who simply possesses authority to oversee an individual’s job performance. In order to be classified as a “supervisor” for purposes of liability under Title VII, that person must have the power to “directly affect the terms and conditions of the plaintiff’s employment,” including the power to hire, fire, promote, or demote. Andonissamy v. Hewlett-Packard Company, Nos. 07-2387 and 07-2390 (7th Circ. November 7, 2008).

Sanjay Andonissamy, a French citizen of Indian ethnicity, worked as a systems engineer for Hewlett-Packard. In that capacity, and based upon H-P’s sponsorship of his H-1B visa, he was assigned to the Qwest Cyber Center in Chicago from April 2001 through June 2003. Andonissamy alleged that during his tenure at Qwest, his supervisor (Smith) made racist comments, including remarks that U.S. citizens were unable to find jobs because “people like Andonissamy” had taken them. Andonissamy complained about Smith’s remarks and treatment. H-P and Qwest asserted that while Andonissamy’s technical skills were strong, his relationships with co-workers and customers were not strong, and that the company had received complaints that Andonissamy treated people rudely. After a complaint from a customer in 2002, Smith put Andonissamy on a performance improvement plan. Subsequently, Andonissamy’s performance deteriorated, with missed deadlines increasing, and additional complaints about Andonissamy from both Qwest and customers.

In March 2003, H-P’s human resource department undertook an investigation, and determined that a performance warning should be issued to Andonissamy. After the issuance of that warning on May 5, Andonissamy continued to miss deadlines and refused to train a back-up person to assist him. In June 2003, Qwest refused to allow Andonissamy’s return to the Cyber Center, and Andonissamy’s employment with HP was terminated. In 2004, Andonissamy filed a federal court complaint against both H-P and Qwest, which included national origin discrimination and violation of the FMLA, based upon denial of a requested leave for depression.

The lower court dismissed all of Andonissamy’s claims on summary judgment, and that decision was upheld on appeal. After analyzing each of Andonissamy’s claims, the Seventh Circuit found that none were sufficiently supported. The most interesting part of the analysis is the court’s characterization of the national origin/hostile environment claim under Title VII.

First the court set forth the elements necessary to survive summary judgment on a claim of hostile environment, stating that a plaintiff must establish that: (1) he was subjected to unwanted harassment; (2) the harassment was based upon national origin; (3) the harassment was severe and pervasive enough to alter the conditions of his employment; and (4) there is a basis for employer liability. The court never reached the question of whether Andonissamy’s workplace was a hostile environment. Instead, it held that Andonissamy had not established a basis for employer liability, because he was unable to establish that Smith possessed sufficient authority to be classified as a “supervisor” under Title VII. Smith did not hire or fire Andonissamy, and while Smith was able to recommended disciplinary action, H-P’s human resource department had to conduct an investigation and issue its own recommendation prior to discipline being imposed.

 In this case, the court specifically stated that “directing work activities and recommending disciplinary action are not in and of themselves sufficient to make someone a supervisor under Title VII.” However, employers should not take this as an open invitation to overlook situations in which nominal managers act unprofessionally toward subordinates. The result of this case turned on the specific circumstances of the relationship between Smith and Andonissamy, and the fact that Smith did not have direct authority to hire, fire, or discipline Andonissamy. In addition, H-P had carefully documented Andonissamy’s original complaints about Smith, and was able to show that those complaints did not include allegation of national origin discrimination. Therefore, the company was not on notice of the nature of Andonissamy’s claims against Smith and could not be deemed to have been liable for discrimination.

U.S. Circuit Court of Appeals found that an employer’s failure to rehire an individual after layoff, based on the employee’s opiate-based prescription medication, did not violate the ADA. However, in an example of the overlap between the ADA and the FMLA, the court allowed the employee’s FMLA retaliation claim to go forward to trial, based upon a manager’s statements related to the same employee’s medical leave. Daugherty v. Sajar Plastics, Inc., No. 05-02787 (6th Circ. Oct. 16, 2008).  

James Daugherty worked for Sajar Plastics as a maintenance technician from 1991 until his layoff on January 5, 2004. In that capacity, he maintained buildings and equipment, often using hand and power tools, and operated certain heavy machinery including forklifts and overhead cranes.

In 2000 and 2001, Daugherty suffered flare ups of a previous back injury. To manage pain associated with those flare ups, Daugherty was prescribed increasing doses of Oxycontin and Duragesic, both opiate-based medications. Daugherty also requested and was granted intermittent FMLA leave during period of increased pain. In November 2003, Daugherty requested a lengthy period of such leave, and provided a doctor’s note that he would be able to return to work in January 2004. Daugherty claims that Sajar’s HR Director (Alexander) told him at that time that if he took FMLA leave for that period, “there would not be a job waiting for [him] when [he] returned.” Alexander disputes that claim.

Soon after Daugherty went on leave, Sajar began a round of lay offs. Because Dougherty was the least senior maintenance worker, it was decided that he would be laid off upon his return from leave. However, within a month, Sajar experienced an increase in business and decided to recall Daugherty to work. Alexander made the re-hire contingent upon passing a physical examination conducted by Dr. Altemus, who was routinely used by the company for pre-employment physicals. While Dr. Altemus found Dougherty physically able to perform the functions of the position, he expressed concerns about Dougherty’s medications, stating that “the analgesics may mask the symptoms of re-injury,” and “may cause am impairment of perception or judgment which might lead to an injury to himself or others.” Sajar then called Daugherty and told him that if he could provide documentation regarding a “reduction in his medications,” the company would consider re-employing him. Dougherty failed to provide that documentation, even after repeated requests, and his employment ultimately was terminated.

Daugherty then filed a lawsuit alleging that Sajar regarded him as disabled and that it violated the ADA when it failed to rehire him. He also claimed that his termination was in retaliation for his FMLA leave. The lower court granted Sajar’s motion for summary judgment on both claims, and Daugherty appealed.

On appeal, the Sixth Circuit found that Sajar’s decision regarding Daugherty’s employment did not violate the ADA. To support a regarded-as-disabled claim, a plaintiff must show that the employer regards him as unable to perform a broad class or range of jobs. Dr. Altemus’ viewpoint regarding Dougherty’s medication restricted Dougherty only from the maintenance technician positions at Sajar and, therefore, was not sufficient to support his ADA regarded-as-disabled claim. However, the court reversed the lower court’s dismissal of Dougherty’s FMLA claim. The court held that Dougherty presented “direct evidence” of discrimination in the form of Alexander’s threat that the FMLA leave would affect Dougherty’s continued employment, and that a jury could find a “clear connection” between the FMLA leave and Sajar’s ultimate decision to terminate Dougherty’s employment.

As the number of cases filed under the “regarded as” provision of the ADA continues to increase, it is imperative for employers to be familiar with the standard of proof required to overcome that claim. In this case, the fact that the company was willing to continue to employ the individual if he was able to work with his physician to decrease the amount of his opiate-based medication indicated a perception on the part of the company that Dougherty was able to be employed in some capacity and, therefore, precluded a claim that the company was excluding Dougherty from a broad range of employment positions. In this case, the company’s effort to find a mutually beneficial resolution to the issue – while unsuccessful – had the ultimate effect of helping the company to avoid liability under the ADA.

 

A group of insurance “sales leaders” who filed for overtime wages under the Fair Labor Standards Act (FLSA) have been deemed by the 5th U.S. Circuit Court of Appeals to be employees rather than independent contractors, and therefore eligible for overtime pay. Hopkins v. Cornerstone America, No. 07-10952 (5th Cir. October 13, 2008). The court based its decision on the economic realities of the situation, and determined that the managers were economically dependent upon the company for which they worked, instead of being in business for themselves.

Cornerstone America, the sales and marketing division of Mid-West National Life Insurance Company of Tennessee, uses a “pyramid” system of sales agents, all of whom agree to work as independent contractors, with payment on a commission basis. Certain of the agents have been promoted to “sales leaders,” a management-level designation. In that position, the opportunity for personal sales diminishes, and income is earned primarily from overwrite commissions on sales made by subordinate agents. In the model used by Cornerstone, there is no formal relationship between the sales leaders and the sales agents. Instead, each sales agent contracts directly with Cornerstone; the company controls the hiring and firing of each agent, along with the assignment and promotion of each, regardless of sales leader group.

Although the sales leaders have a certain amount of flexibility with regard to their own working hours and daily routine, and although they all are designated as independent contractors who receive no employment benefits and very little corporate oversight, a group of those managers filed suit against Cornerstone and its parent companies, alleging that they were “employees” entitled to overtime wages. Both the plaintiffs and the company filed summary judgment motions on the issue of whether the sales leaders were employees or independent contractors. The district court found in favor of plaintiffs, and that decision was appealed to the Fifth Circuit.

The FLSA’s definition of “employee” is extremely broad, and includes some individuals who may not qualify as employees under traditional agency law principles. The Fifth Circuit’s approach to the question of whether the sales leaders are independent contractors or actual employees was premised on a five-factor analysis. To determine whether the workers are economically dependent upon Cornerstone, the court reviewed (1) the degree of control exercised by the company; (2) the extent of the relative investments of the workers and the company; (3) the degree to which the workers’ opportunity for profit or loss is determined by the company; (4) the skill and initiative required for performing the job; and (5) the permanency of the relationship. Under that analysis, the Fifth Circuit upheld the lower court’s determination that the sales leaders were employees, rather than independent contractors.

The court’s decision focused largely on the fact that the company exercises a substantial amount of control over the plaintiffs’ ability to earn income. Such control includes hiring, firing, and assigning sales agents, on whom the sales leaders’ income depends; advertising for new recruits; controlling the number of sales leads the leaders could receive; and limiting the types and price of insurance products the leaders could sell. In addition, Cornerstone precludes sales leaders from being involved in or owning any other businesses while employed with Cornerstone. These facts, in addition to the fact that most of the sales leaders have been with Cornerstone for a substantial period of time, creating more of a long-term employment relationship than a transient independent contractor relationship, led the court to its determination.

The court’s opinion is a guide to employers who want to understand what the courts look for when making the determination of whether an individual is an "employee" v. an "independent contractor." In order to establish a true independent contractor relationship, the economic realities of the situation should show that the worker possesses some unique skill, and that he or she is allowed to control the methods and means by which that skill is exercised. If instead, the individual’s duties involve only a standard set of skills (in this case, business sense, salesmanship, and basic management skills), and the company is controlling the individual’s wages by limiting the method by which the individual can earn that wage, the courts are more likely to find a traditional employer/employee relationship. In this case, that determination may lead to unanticipated liability for overtime pay under the FLSA.