United States District Court, W.D. Missouri, Central Division
LORI HOPKINS, individually and on behalf of others similarly situated, Plaintiffs,
AEROCARE HOME MEDICAL EQUIPMENT, INC., et al., Defendants.
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.
Aerocare Home Medical Equipment, Inc., Aerocare Holdings,
Inc. and Aerocare Employee Benefits, Inc. move to dismiss,
for failure to state a claim, the complaint by plaintiff Lori
Hopkins. For the reasons discussed below, the motion to
dismiss is denied.
plaintiff need only plead “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). However, the Federal
Rules of Civil Procedure require the dismissal of a complaint
that fails to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Fed.R.Civ.P. 12(b)(6). In determining
whether a complaint alleges sufficient facts to state a
plausible claim to relief, the Court accepts all factual
allegations as true. See Great Plains Trust Co. v. Union
Pac. R.R. Co., 492 F.3d 986, 995 (8th Cir. 2007).
argue that the complaint lacks sufficient facts to make it
plausible that Defendants employed Plaintiff pursuant to the
applicable statute, the Fair Labor Standards Act.
“[T]he test of employment under the FLSA is one of
‘economic reality.'” Tony and Susan Alamo
Found. v. Sec'y of Labor, 471 U.S. 290, 301, 105
S.Ct. 1953 (1985) (citation omitted). “[F]acts
describing the ‘economic reality” of
[plaintiffs'] employment” include “their
alleged employers' right to control the nature and
quality of their work, the employers' right to hire or
fire, or the source of compensation for their work.”
Ash v. Anderson Merchandisers, LLC, 799 F.3d 957,
961 (8th Cir. 2015). Other factors considered by courts
within the Eighth Circuit include “determination of the
rate and method of payment; and . . . maintenance of the
plaintiff's employment records.” Arnold v.
DirecTV, Inc., No. 10-0352AGF, 2011 WL 839636, at **6-7
(E.D. Mo. Mar. 7, 2011) (citing cases).
alleges as follows: “Defendants employ customer service
representatives (‘CSRs') to coordinate the
fulfillment of orders for home-based medical equipment by
doing such things as making arrangements with patients, their
medical providers, and health insurers when medical equipment
is needed at a patient's home.” Doc. 1 (Complaint),
¶ 1. “CSRs performed their work for Defendants by
using the telephone and by being ‘on-line,'
requiring that they have access to the internet.”
Id., ¶ 2. “Defendants required Plaintiff
and other similarly situated CSRs to work forty (40) hours a
week at their respective AeroCare office location.”
Id., ¶ 19. “Defendants required its CSRs
to work ‘on call' at various times outside of
normal business hours and/or on weekends.”
Id., ¶ 3. “While ‘on call,'
Plaintiff and the other CSRs were required to always have a
company issued cell phone and a computer or tablet with
internet access with them.” Id., ¶ 25.
“Defendants refused and failed to accurately record all
time worked by Plaintiff, ” including by “not
allow[ing] Plaintiff and other CSRs to clock-in to
Defendants' time system to record ‘on call'
time.” Id., ¶ 31. “Defendants
refused to pay Plaintiff and other CSRs a wage for their
‘on call' time” and “the actual time
spent on business activities while ‘on
call.'” Id., ¶¶ 28-29.
Plaintiff has alleged that Defendants control the nature and
quality of her and other putative class members' work
(including by requiring them to have access to a
company-issued computer and the internet while on call to
“gather information from the caller, accessthe
internet, log into databases, enterdata, find
information as needed and plac[e] additional calls to other
individuals and entities, ” Doc. 1, ¶¶ 6,
25), their schedule (including by requiring them to be
“on call” for set periods of time in addition to
their regular 40-hour work week, id., ¶¶
19-20), their rate of compensation (including by setting
different rates for on-call time and for the regular 40-hour
week, id., ¶¶ 22, 24, 28), and their
employment records (by preventing CSRs from entering their
time for on-call work, id., ¶¶ 24, 31).
These allegations are sufficient to suggest an employment
relationship. See Wandrey v. CJ Prof'l Satellites,
Inc., No. 14-CV-5087, 2014 WL 4425799, at *5 (W.D. Ark.
Sept. 9, 2014) (finding that plaintiff had sufficiently
alleged employment relationship where, inter alia,
he “allege[d] that Defendants controlled the time he
was required to arrive at work, which jobs he would be
assigned each day, the order in which he was required to
complete assignments, and whether he could leave assignments
until the next day, ” “Defendants required him to
. . . use certain parts, equipment, and tools, some of which
Defendants provided, ” and “Defendants controlled
the rate at which he was compensated”); cf.
Ash, 799 F.3d at 961 (concluding that the sole
allegations concerning the employment relationship, that
“[d]uring all relevant times [Defendants] were part of
an integrated enterprise and, as such, were plaintiffs'
employer” and that “[d]uring all relevant times,
and upon information and belief, all of these defendants
shared interrelated operations, centralized control of labor
relations, common management and common ownership and/or
financial control, ” were conclusory and
“insufficient to satisfy the pleading requirements of
Rule 12(b)(6)”); Loyd v. Ace Logistics, LLC,
No. 08-0188-HFS, 2008 WL 5211022, at *4 (W.D. Mo. Dec. 12,
2008) (dismissing claims against two defendants because one
did not “maintain [her] employment records” and
plaintiff did not allege that either “controlled her
work schedule or conditions of employment”).
argue that Plaintiff needed to identify “some direct
employer . . . before anyone in the group could be liable on
the theory that some or all were responsible” citing a
First Circuit case. Doc. 16 (Defendants' Suggestions in
Support of Motion to Dismiss for Failure to State a Claim),
p. 4 (citation omitted); see also Doc. 26
(Defendants' Reply in Support of Motion to Dismiss for
Failure to State a Claim), pp. 1-2. However, as Defendants
acknowledged in their reply, the Eighth Circuit has held that
a plaintiff is “not required to determine conclusively
which of the three defendant companies was their employer at
the pleadings stage or describe in detail the employer's
corporate structure.” Ash, 799 F.3d at 961.
The Eighth Circuit so held because “plaintiffs will
often be unable to prove definitively the elements of the
claim before discovery, particularly in cases where the
necessary information is within the control of
Defendants.” Id. In view of this controlling
case law, the Court cannot but find that Plaintiffs have
sufficiently pleaded an employment relationship to withstand
Defendants' Rule 12(b)(6) motion.