United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS [DOC.
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
Stephane Parrott and Kevin Williams
(“Plaintiffs”) individually and on behalf of
similarly situated individuals, filed an Amended Collective
Action Complaint (“Amended Complaint”) against
Marriott International, Inc. (“Marriott”) seeking
relief under the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. §§ 201, et.
seek to recover unpaid overtime wages on behalf of themselves
and other current and former Food and Beverage Managers
(“Food Managers”) who worked more than forty
hours a workweek at any hotel operated as a “Courtyard
by Marriott” (“Courtyard”). Plaintiffs
allege that Marriott willfully misclassified Food Managers as
“executives” exempt from FLSA overtime pay
protections. In reality, Plaintiffs say they performed such
jobs as “unloading delivery trucks, stocking supplies,
cooking” and “general restaurant preparatory
work.” Plaintiffs allege that such duties were
“manual labor” that “did not materially
differ from the duties of non-exempt hourly employees.”
Amended Complaint, paragraph 21.
not contested that the Courtyard hotels in which Plaintiffs
worked are franchised by various companies. According to
Plaintiffs, Marriott was their joint employer and responsible
for the FLSA violations. Marriott claims that Plaintiffs fail
to satisfy the standards necessary to plead an action based
on joint employment, and file a motion to dismiss
(“Motion to Dismiss”), pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure.
motion is DENIED.
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). A court must “construe the complaint in the
light most favorable to the plaintiff, accept its allegations
as true, and draw all reasonable inferences in favor of the
plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007). Dismissal is proper only if it
appears beyond doubt that the plaintiff can prove no set of
facts in support of the claims that would entitle him or her
to relief.” Zaluski v. United Am. Healthcare
Corp., 527 F.3d 564, 570 (6th Cir. 2008). A complaint
must contain sufficient factual matter to ‘state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible on its face "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556).
Sixth Circuit Standard
issue is whether Plaintiffs plead sufficient facts to
demonstrate that Marriott is their joint employer. The FLSA
defines an “employer” as “any person acting
directly or indirectly in the interest of an employer in
relation to an employee … .” 29 U.S.C.S §
203(d). “Under the FLSA, the issue of joint employment
. . . depends upon all of the facts in the particular case
and is largely an issue of control.” Bacon v.
Subway Sandwiches & Salads LLC, 2015 U.S. Dist.
LEXIS 19572, *8 (E.D. Tenn. Feb. 19, 2015) (internal
quotations omitted). “The Sixth Circuit has not
formulated a test for identifying a joint employer for FLSA
purposes; however, in the context of Title VII, the Sixth
Circuit has considered three potential factors to be
considered in determining if an entity may be considered a
joint employer: (1) exercise of the authority to hire, fire,
and discipline; (2) control over pay and insurance; and (3)
supervision.” Id. See Sanford v. Main St.
Baptist Church Manor, Inc., 327 Fed.Appx. 587, 594, (6th
Cir. 2009) (“in the NLRB context” factors
“such as exercise of authority to hire, fire, and
discipline, control over pay and insurance, and supervision
… can bear on whether an entity, which is not the
formal employer, may be considered a joint employer”).
Other district courts in the Sixth Circuit have applied these
factors. See Reid v. Quality Serv. Integrity, 2016
U.S. Dist. LEXIS 5878, *6 (E.D. Tenn. Jan. 19, 2016);
Williams v. King Bee Delivery, LLC, 199 F.Supp.3d
1175, 1180-1181 (E.D. Ky. 2016); Politron v. Worldwide
Domestic Servs., LLC, 2011 U.S. Dist. LEXIS 52999, *2-7
(M.D. Tenn. May 17, 2011).
district, the focus in joint employment cases has been on
“whether the plaintiff's alleged joint employer (i)
had the power to hire and fire  employees, (ii) supervised
and controlled employee work schedules or conditions of
employment, (iii) determined the rate and method of payment,
and (iv) maintained employment records.” Dowd v.
DirecTV, LLC, 2016 U.S. Dist. LEXIS 36, *11-12 (E.D.
Mich. Jan. 4, 2016).
direct the Court to two district court decisions in the
Second Circuit - decisions that use a “functional
control test” to determine the issue of joint
employment. Olvera v. Bareburger Group LLC, 73
F.Supp.3d 201, 205 (S.D.N.Y. 2014); Ocampo v. 455
Hospitality LLC, 2016 U.S. Dist. LEXIS 125928, *18-19
(S.D.N.Y. Sept. 14, 2016). However, these cases have no
persuasive authority, and there is no need for the Court to
apply them. Importantly, sufficient precedent exists within
the Sixth Circuit to evaluate the sufficiency of
Plaintiffs' allegations. Accordingly, this Court will