Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

HICKS v. AVERY DREI, LLC (August 17, 2011)

Chance Felling owned and operated Avery Drei, LLC, a hotel management company. In 2006, Avery Drei was constructing a hotel near Indianapolis, Indiana. Lisa Hicks began working as a security guard at the hotel construction site in July of 2006. The hotel opened in October and she became a front desk clerk. During her stint as a security guard, Felling paid her in cash. Once she became a desk clerk, she received her regular wages by check. After Hicks' employment was terminated, she brought suit against Avery and Felling. She sought overtime wages and accrued vacation pay. The case languished for several years until February of 2010, when the district court set a June 2010 trial date. In February, Hicks asked Felling and Avery to supplement certain discovery responses. The defendants failed to respond until ordered to do so by the court in May. Then, they supplemented their answers to the requests identified by Hicks and also supplemented their response to an interrogatory that asked them to identify all cash payments to Hicks. Their original response identified seven cash payments, all while Hicks was working as a security guard. Their supplemental response added six additional payments, all while Hicks was working as a desk clerk. Hicks moved to bar any evidence of the additional payments, claiming the late notice was “trial by ambush.” The district court denied the request. At trial, Judge Magnus-Stinson (S.D. Ind.) granted a directed verdict on the vacation pay claims and on the security guard part of her overtime claim. The jury returned a verdict against Hicks on the desk clerk part of her overtime claim. At Hicks' request, the court waived transcription fees relating to the overtime claim but refused to waive with respect to that portion of the record relating to the vacation pay claim. Hicks appeals.

In their opinion, Seventh Circuit Judges Cudahy (concurring in part and concurring in the judgment), Flaum, and Kanne affirmed. On appeal, Hicks challenges the directed verdict on the vacation pay claim, challenges the partial directed verdict on the security guard overtime claim, and challenges the district court's refusal to exclude the evidence of additional cash payments. The Court concluded that the vacation pay claim was frivolous. Hicks admitted that she and Felling had an agreement that she would earn vacation time only after she had worked for a year. Her contention that Indiana law requires pro-rata vacation pay from day one in the absence of a written company policy to the contrary is simply wrong. Any agreement to the contrary, which is admittedly present here, is sufficient. The Court turned to the cash payment evidence. It noted that it would normally review such a ruling for abuse of discretion. Here, however, Hicks did not provide transcripts of the argument or ruling on the motion in limine. Without a meaningful basis on which to review the ruling, the Court concluded that Hicks forfeited her challenge. It also chose not to conduct a full plain error review, since it could identify no prejudice -- no extraordinary circumstances -- no miscarriage of justice. The Court turned to the security guard overtime claim. In order to prevail, Hicks had to prove that her employer was covered by the Fair Labor Standards Act. The district court concluded that she was "engaged in commerce" while a desk clerk, and therefore covered by the Act, but was not while working as a security guard. Hicks argued that she was covered because Felling's operation of several businesses made him an "enterprise engaged in commerce" under the Act. The test for enterprise coverage is that the businesses must be engaged in related activities, under a unified operation, have a common business purpose, and engage in $500,000 of business annually. The district court found that Hicks’ proffered common business purpose -- a profit motive -- did not satisfy the Act's requirements. The Court noted that Hicks advanced a different theory on appeal. It found that argument forfeited. With respect to the profit motive argument, the Court agreed with the district court that it was not enough to amount to enterprise coverage. Finally, the Court rejected the argument that the jury should have been allowed to decide whether Felling Hotels had earnings above the $500,000 threshold because Felling testified that it was possible. Felling Hotels was not a defendant, Felling Hotels was not her employer, and Hicks presented no affirmative evidence of its gross revenue.

Judge Cudahy thought that Felling’s admission against interest that Felling Hotel could have had revenue exceeding $500,000 should have been enough to avoid the directed verdict. But since Hicks never explained how Felling Hotels being subject to the FLSA related to the defendants’ liability, he concurred in the result.

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JOHNSON v. HIX WRECKER SERVICE (July 1, 2011)

Bobby Johnson worked twelve-hour shifts as a tow truck driver for Hix Wrecker Service in 2006. He later sued the company, claiming that he had not been paid for overtime in violation of the Fair Labor Standards Act. Hix Wrecker claimed that Johnson was not subject to the FLSA but, rather, was exempt under its motor carrier exemption. Judge Lawrence (S.D. Ind.) granted summary judgment to Hix. Johnson appeals.

In their opinion, Chief Judge Easterbrook, Circuit Judge Williams, and District Judge Pallmeyer reversed and remanded. The Court recognized that not all employees of a motor carrier are governed by the FLSA. If the employee engages only in intrastate commerce, the FLSA governs. If the employee is wholly engaged in interstate commerce, the employee is exempt from the FLSA and comes under the jurisdiction of the Secretary of Transportation. Many motor carriers and their employees engage in both in intrastate and interstate commerce -- but they cannot be subject to both statutory schemes. Under a Department of Transportation interpretation, an employee is exempt from the FLSA if the employer presents "concrete evidence" that the employee is "engaged in interstate commerce within a reasonable period of time" before the time period in question. A driver who has not engaged in interstate commerce can still be exempt if the carrier has been engaged in interstate commerce and the employee could be expected to engage in the commerce. The interpretation also adopted four months as a "reasonable period of time." In support of its motion for summary judgment, Hix did not assert that Johnson actually engaged in interstate commerce. Instead, it submitted an affidavit that asserted that Hix "routinely" provides interstate services and that Johnson could have been assigned an interstate wrecker run at any time during his employment. The Court concluded that Hicks did not carry its burden of proving the exemption. The affidavit's use of the term "routinely" was too vague to meet the four-months reasonable time threshold. In the Court's view, "routinely" could mean, for example, once every six months or once a year.

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ERVIN v. OS RESTAURANT SERVICES (JANUARY 18, 2011)

OS Restaurant Services operates an Outback Steakhouse in Calumet City, Illinois. It has both hourly and tipped employees. A number of its former employees brought suit, alleging that certain of its employment practices violated the Fair Labor Standards Act as well as the Illinois Minimum Wage Law and theIllinois Wage Payment and Collection Act. The plaintiffs sought to pursue their federal claims as an FLSA collective action and their state law claims as a Rule 23 class action. Judge Guzman (N.D. Ill.) refused to certify the class. He concluded that the plaintiffs failed to meet the superiority requirement because of a conflict between Rule 23's opt-out approach and the FLSA's opt in approach. The plaintiffs petitioned for an interlocutory appeal.

In their opinion, Seventh Circuit Judges Flaum, Wood, and Hamilton granted the petition and reversed and remanded. The only issue on appeal was whether the plaintiffs satisfied the Rule 23(b)(3) superiority requirement. Although Outback argued that the Court could affirm on the ground that individual issues predominated, the Court concluded that the district court's treatment of that issue was not clear enough to support alternate ground affirmance. On the superiority issue, the Court agreed that the two vehicles had different approaches. An FLSA collective action allows participation only upon the written consent of a party -- while a Rule 23(b)(3) class action includes all potential class members who do not affirmatively opt out of the class. Notwithstanding this distinction, however, the Court found nothing in the FLSA that precluded a companion class action on state law claims. Because the district court concluded that the two claims could not proceed simultaneously as a matter of law, the Court remanded for further consideration of the Rule 23 requirements.

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URNIKIS-NEGRO v. AMERICAN FAMILY PROPERTY SERVICES (August 4, 2010)

Todd Lash owned American Family Property Services, a real estate appraisal firm. Although Lash was the only certified appraiser at the firm, he worked with associate appraisers, both independent and employed by the firm. In mid-2004, Lash hired Brenda Urnikis-Negro to help him review appraisal reports. Urnikis-Negro was hired at an annual salary of $52,000 with an understanding that her hours would probably fluctuate and not be limited to a 40-hour week. Urnikis-Negro's work at the firm turned out to be fundamentally clerical in nature and did not involve the exercise of judgment or discretion. Although no one kept track of her actual hours, the firm was very busy in 2004 and 2005 and Urnikis-Negro worked in excess of 40 hours per week. By the end of 2005, business was off and Urnikis-Negro was fired. She filed suit against the firm seeking overtime compensation pursuant to the Fair Labor Standards Act ("FLSA") and the Illinois Minimum Wage Law. After a bench trial, Judge Kennelly (N.D. Ill.) found that Urnikis-Negro's position was not exempt as an "administrative" position and that she was therefore entitled to overtime compensation. He also made a finding of willfulness which allowed Urnikis-Negro to recover overtime for the entire period of her employment. In calculating the amount of her overtime compensation, however, the district court rejected Urnikis-Negro's position that she should be treated as earning $1000 per 40-hour week. Instead, the court made its calculations based on an assumption that her fixed $1000 per week salary was her regular hourly rate compensation for every hour worked in each week. The court also made findings with respect to the totals hours worked during four different time periods of her employment. For each hour of overtime during her employment, the court awarded half of her hourly rate that applied during that period. Her total overtime compensation came to just over $12,000. The court awarded liquidated damages in an equal amount as well as attorney's fees. Urnikis-Negro appeals the calculation.

In their opinion, Judges Bauer, Rovner, and Williams affirmed. The Court first took exception to the district court's application of the fluctuating workweek ("FWW") method of calculating Urnikis-Negro's rate of pay. The FWW method is set forth in a rule promulgated by the Department of Labor. Under that method, an employee's rate of pay is derived by dividing the weekly wage by the total number of hours worked. If an employee works more than 40 hours per week, the method results in a lower hourly wage rate for the employee. Several aspects of the application of the FWW bothered the Court. First, the rule is a forward looking rule that provides a methodology for an employer to comply with the overtime obligations imposed by statute. Second, it is not remedial in nature. Third, it requires an understanding between the employer and employee that the fixed weekly wage is meant to cover regular pay for all hours worked. The Court noted a difference of opinion among the courts in the propriety of using the FWW method in calculating a remedy in an overtime case. The Court found the reasoning of the courts that have rejected the rule to be more persuasive. Having rejected the application of the Department of Labor rule adopting the FWW method, the Court nevertheless approved of the application of the same method based on the Supreme Court's decision in Missel. In Missel, the Supreme Court addressed the situation in which an employee was paid a fixed sum for any and all hours worked, worked substantial overtime, and was not compensated for that overtime. The correct approach in that situation is to calculate a rate of pay by dividing the weekly wage by the hours worked. The employee is entitled to an overtime premium for overtime hours of one half the hourly rate. The result is thus the same as the application of the FWW.

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SPOERLE v. KRAFT FOODS GLOBAL (August 2, 2010)

Kraft Foods operates an Oscar Mayer plant in Madison, Wisconsin. It requires its employees to wear boots, hardhats, smocks, and hairnets for safety and cleanliness. Obviously, it takes a short time each day to put on and take off this equipment. The Fair Labor Standards Act provides that an employer must pay an employee for the time spent "donning and doffing." However, the Act allows for the non-payment of that time if a collective bargaining agreement so provides. The Collective Bargaining Agreement between Kraft and its union does so provide and Kraft does not compensate its employees for the activity. Several employees brought suit against Kraft. They alleged that Wisconsin's state law also requires "donning and doffing" payment and does not have a collective bargaining agreement exception. Judge Crabb (W.D. Wis.) agreed and entered judgment in plaintiffs' favor. Kraft appeals.

In their opinion, Chief Judge Easterbrook and Judges Manion and Evans affirmed. The Court first focused on the plain language of § 203(o) of the Act, which is the definition of “Hours Worked” and contains the collective bargaining agreement exception. Section 203(o) specifically limits its application to §§ 206 and 207 of the Act -- the federal provisions relating to minimum wage and overtime. The Court turned its attention to § 218(a) of the Act, which specifically allows a state to specify a higher minimum wage or a shorter maximum workweek than that provided in the Act. Since Wisconsin could establish a higher minimum hourly wage, the Court reasoned that it would be "senseless" to preclude it from dictating what work hours should be compensated. The Court therefore concluded that the Act did not prevent a state from requiring the donning and doffing payment. Finally, the Court also concluded that federal labor law did not preempt the Wisconsin law since it does not interfere with the collective bargaining process – it simply sets forth a requirement that an employer must meet.

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ALVAREZ v. CITY OF CHICAGO (May 21, 2010)

A group of Chicago Fire Department paramedics brought a collective action under the Fair Labor Standards (FLSA) against the City of Chicago. The complaint alleged that this City violated the FLSA by not properly calculating overtime payments. The plaintiffs identified ten different ways the City allegedly miscalculated overtime pay, not all of which applied to each paramedic's situation. Over three hundred paramedics eventually opted into the collective action. When several were dismissed for failure to opt in in time, they filed their own individual suit with the same allegations. The two cases were consolidated. Judge Hibbler (N.D. Ill.) granted summary judgment to the City as against all plaintiffs. He concluded that the fact that each plaintiff would use a different combination of the various alleged miscalculations prevented them from being similarly situated. He also directed the plaintiffs to arbitrate their complaints, even though he recognized that arbitration under the collective bargaining agreement was not mandatory. The plaintiffs appeal.

In their opinion, Judges Cudahy, Flaum, and Evans reversed and remanded. The Fair Labor Standards Act allows employees to bring complaints as collective actions, on behalf of themselves and others similarly situated. Although a district court is given substantial discretion to manage collective actions, the Court concluded that the district court had misinterpreted a prior case. In Jonites, the Court had found a collective action inappropriate in a situation requiring significant individual fact-finding. Here, although different plaintiffs would be affected by different sub claims, very little individual fact-finding will be required. In addition, the Court concluded that the district court erred in comparing the efficiency of the collective action to arbitration. If the plaintiffs are willing to proceed individually, the proper comparison is between those individual actions and a collective action. Finally, even if a collective action is unwarranted, the proper remedy is not to dismiss the action but to convert it to individual actions.

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SCHMIDT v. EAGLE WASTE & RECYCLING (March 22, 2010)

Eagle Waste & Recycling hired Tammy Schmidt as a sales representative. Eagle is in the business of residential and commercial waste removal services. Schmidt spent most of her time outside the office on sales calls. When she was in the office, she managed her sales calls and plans, she worked on marketing and advertising plans for the business, she was responsible for customer service and customer database maintenance, and she ordered parts and authorized repairs. Schmidt was compensated with a base salary and a commission. Schmidt brought an action under the Fair Labor Standards Act for overtime. Eagle filed for summary judgment – Schmidt responded but not in accordance with local rules. When Eagle pointed out the error, Schmidt sought to modify her response but she waited two weeks and did not file her proposed modification with her request. The court denied her request and granted summary judgment to Eagle. Schmidt appeals.

In their opinion, Judges Posner, Flaum, and Sykes affirmed. The Court first addressed the procedural issue. It remarked that it “routinely” affirms district courts’ strict adherence to the local rules regarding summary judgment. Particularly here, where Schmidt did not respond quickly after she became aware of the error, the district court did not abuse its discretion. On the merits, the Court noted that an “outside salesperson” is exempt from the overtime requirements of the FLSA. An outside salesperson is one whose primary duty is making sales and who is regularly engaged in activity outside the office. Although it is the employer’s burden to prove the exemption and the exemption is narrowly construed against the employer, the Court concluded Schmidt was exempt. She spent the majority of her time outside the office and much of her work at the office was incidental to her outside sales work. Alternatively, the Court concluded that Schmidt was exempt under the FSLA’s combination exemption, which exempts persons who perform a combination of otherwise exempt duties. The majority of Schmidt’s non-sales duties were duties that are exempt under the administrative employee exemption. If she does not qualify as exempt purely on the basis of her sales work, she certainly does on the basis of her combined sales and administrative work.

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TURNER v. THE SALOON (February 8, 2010)

Paul Turner was a waiter at The Saloon restaurant. After working there for several years, Turner and one of his supervisors carried on a sexual relationship that lasted for about nine months. According to Turner, the supervisor retaliated against him after she ended the relationship. He alleges that she changed his table assignments, disciplined him without cause, and sexually harassed him on a number of specific occasions. Turner also alleges that he was discriminated against because of his psoriasis. He wears no underwear as a result of that condition and therefore occasionally exposes himself while changing clothes. He claims that his supervisors failed to accommodate his condition. Instead, he was forced to change in a “vile” men’s room. One day, in the middle of a shift and with no other waiters on duty, Turner left the restaurant to run an errand. When he returned, he was fired. Turner sued the restaurant and several managers for gender and disability discrimination under Title VII and the Americans with Disabilities Act. He also made a claim for overtime. The court granted summary judgment to the defendants. Turner appeals.

In their opinion, Judges Manion, Rovner, and Sykes reversed and remanded in part in affirmed in part. The Court first addressed the Title VII sexual harassment claim. It concluded that the district court erred in not considering most of the alleged acts of harassment because they occurred outside the limitations period. Under the Supreme Court's decision in Morgan, whether an alleged act of harassment is considered by a court depends on whether the claim is for employment discrimination or for hostile work environment. In an employment discrimination claim, discrete acts outside the limitations period should not be considered. However, in a hostile work environment claim, all acts can be considered as long as one act contributing to the hostile environment took place during the limitations period. Taking all the alleged acts into account, the Court had little difficulty in finding that they were sufficient to survive summary judgment. The Court noted the presence of at least five discrete acts, three of which were aggressively physical. Since the district court did not reach the issue of employer liability, the Court left the issue for remand. The court next addressed Turner's claim that his termination was in retaliation for his complaints about the harassment. The Court concluded that Turner was unable to establish a prima facie case under either the direct or indirect method. It noted a series of at least ten serious reprimands in the eight or nine months preceding his termination as well as the fact that he left his job in the middle of the shift. The serious performance problems as well as the passage of time since his harassment complaint belie a causal connection between the complaint and his termination. The Court summarily rejected Turner's ADA discrimination claim -- his psoriasis is not a disability under the Act since it does not limit any major life activity. The fact that he is not disabled does not preclude his ADA retaliation claim. Since he did raise such a claim with his employer, his employer is not allowed to retaliate. He does not prevail on that claim, however, for the same reasons he could not prevail on his Title VII retaliation claim. Finally, the Court rejected Turner's wage claims as wholly unsupported by the evidence presented.

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COLLINS v. HERITAGE WINE CELLARS (December 21, 2009)

Heritage Wine Cellars is a wholesale wine importer and distributor. It buys wines outside of Illinois (and frequently outside of the country) and brings it to Illinois for sale to retail stores. Although it controls the wine and its shipment during the entire journey, Heritage retains independent contractor carriers to bring the wine into the state. Within Illinois, it uses its own trucks and drivers to distribute the wine. Anthony Collins is one of those truck drivers employed by Heritage. He and other drivers brought an action against Heritage pursuant to the Fair Labor Standards Act (FLSA). They allege that Heritage failed to pay required overtime. The district court ruled that Collins transported the wine in interstate commerce and Heritage was therefore exempt from the overtime provisions of the FLSA. Collins appeals.

In their opinion, Judges Posner, Manion and Tinder affirmed. The Court critically noted the jurisprudence surrounding the "interstate commerce" issue. It found no fewer than seventeen "unweighted technical criteria" in the cases and regulations. Although admitting that some cases may require a more complex analysis, the Court found four criteria that allowed it to dispose of the case. Those criteria were: a) although Heritage did not have a customer for all of the wine it imported, its volume of imports was determined by customer demand, b) Heritage did not process or otherwise modify the wine at its warehouse, c) Heritage maintained control over the wine, and d) the shipper bore the ultimate responsibility for transportation charges. Under those circumstances, concluded the Court, the wholly intrastate leg of a shipment is considered to be part of interstate commerce.

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MUSCH v. DOMTAR INDUSTRIES (November 25, 2009)

Alan Musch is an hourly maintenance employee at one of Domtar's paper mills in Wisconsin. Because he is regularly exposed to hazardous chemicals during a shift, he must shower and change his clothes before leaving the mill. He is not compensated for that time. He brings an action on behalf of himself and the other maintenance employees under the Fair Labor Standards Act and Wisconsin state law for overtime compensation. The court entered summary judgment for Domtar. The class appeals.

In their opinion, Judges Bauer, Kanne and Evans affirmed. The FLSA does require an employer to pay its employees for all their work. Although an employer is generally not required to compensate an employee for activities (such as cleaning up) at the end of the workday, compensation may be required if the activity is an integral part of the employment. The Court agreed with the district court's findings that the class failed to establish that chemical exposure was so pervasive that cleanup was required at the end of each day. The Court also noted that Domtar had a policy requiring maintenance employees to shower and change clothes whenever they were exposed to hazardous chemicals, even if not at the end of their shift. The Court concluded that the activities were non-compensable.

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KASTEN v. SAINT-GOBAIN PERFORMANCE PLASTIC CORP. (June 29, 2009)

Kevin Kasten worked at one of Saint-Gobain's facilities in Wisconsin. In 2006, Kasten received three warnings regarding his use of the on-site time clock. The third warning included a statement that it was the last step of the disciplinary process and that another violation could result in further discipline, up to termination. Kasten alleges, and Saint-Gobain denies, that he verbally complained about the legality of the time clock’s location about the same time he received the third warning. He alleges that his complaints consisted of a) telling his supervisor, b) telling a human resources representative, c) telling a lead operator and d) telling the lead operator he was considering a lawsuit. Saint-Gobain suspended Kasten after his fourth violation and later terminated his employment. Kasten alleges, and Saint-Gobain denies, that he also complained about the legality of the clock’s placement at a meeting regarding his suspension. Kasten brought an action under the Fair Labor Standards Act, alleging that he was terminated in retaliation for his complaints. The court granted summary judgment to Saint-Gobain. Kasten appeals.

In their opinion, Judges Bauer, Flaum and Kapala affirmed. Kasten alleges that Saint-Gobain violated the FLSA when it terminated him after he "filed any complaint." The Court focused on two issues: whether the FLSA's use of the term "complaint" includes informal, intra-company complaints not formally filed with any body and whether it includes wholly verbal complaints. The district court had answered the first question yes but the second question no. With respect to the intra-company complaint issue, the Court relied on the plain language of the statute and the majority of other appellate courts to conclude that "any complaint" includes internal complaints. If then decided, however, that purely verbal complaints are not protected. The Court relied again on the plain language of the statute and the use of the word "file," which connotes the use of a writing, and the fact that Congress used broader language (i.e., “opposed any practice”) in analogous provisions of other statutes.

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ESTATE OF SUSKOVICH v. ANTHEM HEALTH PLANS (January 22, 2009)

Anthony Suskovich was a computer programmer and analyst. From 1996 until his unfortunate and sudden death in 2006, he provided services to WellPoint. WellPoint retained Suskovich on many projects with limited duration, although frequently one project rolled over into another. He billed WellPoint on an invoice, was paid by the hour, and his income was reported on a 1099. WellPoint adopted a preferred vendor program around 2000 under which it could only avail itself of Suskovich’s services if they were provided by a preferred vendor. Suskovich began a relationship with Trasys. Suskovich would send an invoice to WellPoint, which in turn would refer them to Trasys for payment to Suskovich. Suskovich’s income was still reported on a 1099. In 2001, Suskovich signed an “independent contractor” agreement. Suskovich worked on many different projects, sometimes on more than one at once. He usually worked at WellPoint’s offices with a computer supplied by WellPoint. In 2005, WellPoint informed Suskovich that they would not be using him anymore and asked him to train a replacement. Later, Suskovich and WellPoint had discussions about the possibility of Suskovich becoming an employee of WellPoint but nothing ever came of them. Before his death, the IRS began an investigation of Suskovich for not filing tax returns. The investigation led to his filing of returns for several years in which he listed himself as self-employed. He still had remaining tax liability when he died. His estate brought an action against WellPoint and Trasys, seeking a declaratory judgment that Suskovich was an employee of WellPoint and Trasys and for compensation under the Fair Labor Standards Act (“FLSA”), benefits under ERISA, and tax indemnity. The district court granted summary judgment for the defendants, holding that Suskovich was an independent contractor. The Estate appeals.

In their opinion, Judges Cudahy, Flaum and Sykes affirmed. First, the Court held that the district court did not give improper weight to the “independent contractor” agreement. The Court held that the court below properly followed the law of the Circuit that parties can define their relationship as long as the other factors do not lead to the opposite conclusion. The district court gave primary weight to the contract but did consider and weigh other factors. Next, the Court held that the district court properly resolved the ambiguity in the contract by considering the language of the contract as well as extrinsic evidence. The Court proceeded to the meat of the appeal – whether Suskovich was an independent contractor or an employee. The Court decided to approach the question under the 10-factor Restatement test, even though the asserted claims have different tests. ERISA claims use a 12-factor common law test. FLSA claims use a broader 6-factor test. The Supreme Court has held that the ERISA test is similar to the Restatement test and the Estate relied on the Restatement test. The Court evaluated and weighed the ten factors: a) extent of control, b) whether the worker is engaged in a distinct occupation, c) whether the type of work is generally done without supervision, d) skill required, e) who supplies the tools and workplace, f) length of employment, g) whether the payment is by time or job, h) whether the work is the regular business of the employer, i) the parties’ belief, and j) whether the principal is in business. The Court concluded that only two factors weighed at all in Suskovich’s favor: who supplied the tools and whether the work was the regular part of the business. The former is a relatively unimportant factor and the latter only favors Suskovich as against Trasys. All of the other factors weighed against Suskovich. The district court was correct in awarding summary judgment to WellPoint and Trasys.

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