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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-22766-Civ-WILLIAMS/TORRES

DIANA FLOREZ, 

Plaintiff,

v.

WORKFORCE SOLUTION STAFFING, LLC

et al.,

Defendants.

______________________________________/

REPORT AND RECOMMENDATION ON THE PARTIES’ 

CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT

This matter is before the Court on the parties’ cross motions for partial 

summary judgment filed by Diana Florez (“Plaintiff” or “Florez”) and Martha De La 

Cruz (“Ms. De La Cruz”) and Fernando De La Cruz (“Mr. De La Cruz,” and collectively 

with Ms. De La Cruz, “Defendants”). Defendants’ motion seeks judgment in their 

favor on Plaintiff’s claims for retaliatory termination (Counts VII-IX). [D.E. 32]. 

Plaintiff’s motion seeks judgment on the following issues: 1) FLSA coverage; 2) 

Defendants were “employers” under the Fair Labor Standards Act (“FLSA”); 3) 

Plaintiff was an “employee” under the FLSA; 4) Defendants violated the FLSA’s 

minimum wage provisions; 5) Plaintiff was not exempt from overtime wages for part 

of her employment; and 6) Defendants are not entitled to any set offs to reduce 

damages sought by Plaintiff as a matter of law. [D.E. 32]. 

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Defendants filed their response to Plaintiff’s motion on April 23, 2021 [D.E. 34] 

to which she replied on April 30, 2021 [D.E. 38]. Plaintiff filed her response to 

Defendants’ motion on April 23, 2021 [D.E. 36] to which they replied on April 30, 2021 

[D.E. 39]. Therefore, the motions are now ripe for disposition.1 After careful 

consideration of the motions, responses, replies, relevant authority, and for the 

reasons discussed below, Defendants’ partial motion for summary judgment should 

be GRANTED, and Plaintiff’s partial motion for summary judgment should be

GRANTED in part and DENIED in part. 

I. FACTUAL BACKGROUND

This FLSA action involves alleged minimum wage and overtime violations and 

unlawful retaliation after a live-in nanny requested more pay and less hours shortly 

before the Covid-19 pandemic started. Florez moved to the United States in August 

2018, and even though she was unauthorized to work, she posted an advertisement 

in classifieds in Miami, Florida for work as a nanny. Ms. De La Cruz responded to 

the ad and hired Florez to be a live-in nanny starting in September 2018. Ms. De La 

Cruz wanted help to watch her child because she frequently joined her husband at 

his work, which was at a night life venue. Florez claims that she was also hired to 

assist with “the daily housework” [D.E. 31-1, pg. 18:20-22], but Defendants assert 

that any cooking and cleaning she did was in the ordinary course of being a roommate 

with Defendants. 

1 The Honorable Kathleen M. Williams referred the motions to the Undersigned 

for disposition on May 3, 2021. [D.E. 40]. 

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Florez was paid $450 per week for the work and slept at Defendants’ residence

in her own room at least six nights a week for the first year. Her schedule fluctuated 

week to week, but she was paid the same salary regardless of the amount of time she 

worked that that week. While Defendants did not keep records of the hours she 

worked, Ms. De La Cruz and Florez communicated frequently through WhatsApp 

chat to discuss Florez’s daily tasks. Florez contends that she worked up to 72 hours 

a week and Defendants claim that she averaged around 20 hours per week. 

In September 2019, Florez communicated to Ms. De La Cruz that her pay was 

too low for all the work she did. Ms. De La Cruz thus increased her pay to $500 per 

week and hired a housekeeper to help clean their home at least once a week. 

According to Florez, the hiring of the cleaning person “represented a little less work”

for her. Also in September 2019, Florez took off two weeks from work to take care of

her soon to be husband after he was hospitalized with an injury. Florez continued to 

take 1-2 hours off on certain days to care for her husband, but her weekly salary of 

$500 was never reduced. 

Shortly thereafter, Florez started staying with her new husband a few nights 

a week in an apartment close to Defendants’ residence. In February 2020, Florez 

received permission from Ms. De La Cruz to completely move out of the Defendants’ 

residence. Florez also requested a formal schedule and to work less hours around 

this time. In response, Ms. De La Cruz allowed Florez to start working reduced hours

and allegedly prepared a formal schedule for her. However, in mid-March, at the

same time the government recommended quarantining due to Covid-19, Florez’s 

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employment was suspended and she moved-in full-time with her husband. During 

her quarantine, Florez’s building was trying to evict her and her husband, so she did 

not want to leave as she was concerned that she could not get back in. Florez was 

also worried about her car being towed, so Ms. De La Cruz allowed her to park it at 

Defendants’ building. In April 2020, Florez’s employment was officially terminated. 

Ms. De La Cruz did so by texting Florez that she was let go “due to the pandemic and 

family circumstances,” that she lost her own job at a theatre, and that Defendants

were moving. [D.E. 31-2, pg. 32]. 

On June 3, 2020, Florez filed her complaint in state court and Defendants 

removed it to this Court on July 6, 2020. [D.E. 1]. Florez brought nine causes of 

action against Defendants, including six counts for alleged violations of the minimum 

wage and overtime provision of the FLSA (Counts I-VI), as well three counts for 

retaliatory termination. 

II. LEGAL STANDARD

A court shall grant summary judgment if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). 

A party asserting that a fact cannot be or is genuinely disputed must 

support the assertion by: (A) citing to particular parts of materials in 

the record, including depositions, documents, electronically stored 

information, affidavits or declarations, stipulations (including those 

made for purposes of the motion only), admissions, interrogatory 

answers, or other materials; or (B) showing that materials cited do not 

establish the absence or presence of a genuine dispute, or that an 

adverse party cannot produce admissible evidence to support the fact.

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Fed. R. Civ. P. 56(c)(1). On summary judgment the inferences to be drawn from the 

underlying facts must be viewed in the light most favorable to the party opposing the 

motion. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 

(1986) (quoting another source). 

In opposing a motion for summary judgment, the nonmoving party may not 

rely solely on the pleadings, but must show by affidavits, depositions, answers to 

interrogatories, and admissions that specific facts exist demonstrating a genuine 

issue for trial. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-

24 (1986). The existence of a mere “scintilla” of evidence in support of the 

nonmovant’s position is insufficient; there must be evidence on which the jury could 

reasonably find for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

252 (1986). “A court need not permit a case to go to a jury . . . when the inferences 

that are drawn from the evidence, or upon which the non-movant relies, are 

‘implausible.”’ See Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 743 (11th Cir. 

1996) (citing Matsushita, 475 U.S. at 592-94). 

At the summary judgment stage, a court’s function is not to “weigh the 

evidence and determine the truth of the matter but to determine whether there is a 

genuine issue for trial.” Anderson, 477 U.S. at 249. In making this determination, 

the court must decide which issues are material. A material fact is one that might 

affect the outcome of the case. See id. at 248 (“Only disputes over facts that might 

affect the outcome of the suit under the governing law will properly preclude the entry 

of summary judgment. Factual disputes that are irrelevant or unnecessary will not 

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be counted.”). “Summary judgment will not lie if the dispute about a material fact is 

genuine, that is, if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Id.

III. ANALYSIS

A. Retaliatory Termination (Counts VII-IX)

Defendants seek judgment in their favor on Counts VII-IX, each involving 

unlawful retaliatory termination of Florez’s employment. In short, Defendants argue 

that Florez has failed to show that her employment was terminated because she 

requested a pay raise, help with cleaning, and a reduction in the number of hours she 

worked. In the alternative, Defendants contend Florez is not entitled to economic 

damages because she is an undocumented alien not authorized to work in the United 

States. 

The FLSA prohibits an employer from discharging “any employee because such 

employee has filed any complaint or instituted or caused to be instituted any 

proceeding under or related to this chapter.” 29 U.S.C. § 215(a)(3). Informal 

complaints made to an employer may serve as a “complaint” for purposes of the FLSA. 

See E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir. 1989) 

(“[U]nofficial complaints expressed by [employees] to their employer about unequal 

pay constitute an assertion of rights protected under the statute.”); Perez v. Anastasia 

M. Garcia, P.A., 701 F. App’x 938, 941 (11th Cir. 2017) (email requesting overtime 

pay was sufficient to put defendant on notice that defendant “should reasonably 

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understand the matter as part of its business concerns.”) (quoting Kasten v. SaintGobain Performance Plastics Corp., 563 U.S. 1, 14 (2011)).

Courts use “the familiar McDonnell Douglas framework” to analyze FLSA 

retaliation claims. See Suchite v. Kleppin, 819 F. Supp. 2d 1284, 1293 (S.D. Fla. 2011) 

(quoting Burnette v. Northside Hosp., 342 F. Supp. 2d 1128, 1133 (N.D. Ga. 2004)). 

Under this framework, a plaintiff must show that: (1) she engaged in a protected 

activity under the FLSA; (2) she suffered an adverse action by her employer; and (3) 

a causal connection exists between her protected activity and the adverse action. See 

Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000). To establish a causal 

connection, “a plaintiff need only show ‘that the protected activity and the adverse 

action were not wholly unrelated.’” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 

791, 799 (11th Cir. 2000) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 

1354 (11th Cir. 1999)). A “close temporal proximity between the statutorily protected 

activity and the adverse employment action” can meet the burden of showing 

causation. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)

(citing See Brungart, 231 F.3d at 798-99). “But mere temporal proximity, without 

more, must be “’very close.’” Id. (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 

268, 273 (2001)). 

If a plaintiff establishes a prima facie case of retaliation, the burden shifts to 

the defendant to come forward with a legitimate non-retaliatory reason for the

adverse employment action. Id. If this burden is met, the burden shifts back to the 

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plaintiff to demonstrate that the proffered non-retaliatory reason is a pretext for the 

termination. See Suchite, 819 F. Supp. 2d at 1293.

We begin with Plaintiff’s initial burden; to show that she engaged in a 

protected activity and that there is a casual connection between it and Ms. De La 

Cruz terminating her employment. Florez asserts that she engaged in protected 

activity when she “complained” about her low pay and cleaning duties in September 

2019. While this may constitute protected activity, Florez has failed to show a causal

connection between it and the termination of her employment. To begin with, Ms. De 

La Cruz acquiesced to the requests by increasing Florez’s weekly compensation and 

hired a cleaning service to lighten Florez’s workload. Because of this, Florez is only 

relying on the temporal proximity between her requests and her termination to show 

a casual connection. Thus, the date she made her requests and the date of her 

termination must be “very close.” See Thomas, 506 F.3d at 1364. However, it was at 

least six months after her requests that Florez’s employment was first suspended in 

March 2020. This six-month gap clearly fails to meet the standard of “very close.” 

See Clark County Sch. Dist., 532 U.S. at 273 (three-month period insufficient); 

Thomas, 506 F.3d at 1364 (three to four-month period insufficient). 

Florez’s request to move-out completely and for reduced hours in February 

2020 is a different story. If we considered this request protected activity, the 

temporal proximately to her work being suspended in March 2020 is relatively close. 

Nonetheless, even if Florez established a prima facie case of retaliation based on the 

close temporal proximity between her protected activity and her termination, 

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Defendants have offered a legitimate, non-retaliatory reason for her termination—

that Florez lost her job due to the Covid-19 pandemic and that Defendants moved to 

Washington, DC a few months later. It is now common knowledge that millions of 

people across the world lost their jobs when the Federal government recommended a 

two-week quarantine starting in March 2020, with most of them not regaining 

employment for several months. This was especially true for professions that 

required close contact with other people, like nannies. 

Florez has not come close to offering any evidence to rebut that the Covid-19 

pandemic was not the reason she lost her job instead of her asking for reduced hours

and wanting to move out. Indeed, just a few days after Florez’s request to work less 

hours in February 2020, Ms. De La Cruz took Florez out to celebrate her birthday as 

their relationship remained strong. This friendly relationship was also evidenced by 

Ms. De La Cruz allowing Florez to park her car at her house even though her 

employment was suspended at the time. And lastly, when asked if the February 2020 

conversation regarding a reduction in hours had anything to do with her termination, 

Florez said “I don’t think so.” [D.E. 31-2, pg. 53]. 

As a result, the retaliation claims fail as a matter of law.2 Therefore, 

Defendants’ motion should be GRANTED.

2 We also address Defendants’ alternative argument that someone not 

authorized to work in the United States cannot recover backpay. This argument is 

unavailing. “[U]ndocumented workers are ‘employees’ within the meaning of the 

FLSA and that such workers can bring an action under the act for unpaid wages and 

liquidated damages.” Patel v. Quality Inn, 846 F.2d 700, 706 (11th Cir. 1988). And 

this holding is still applicable in the Eleventh Circuit today. See Lamonica v. Safe 

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B. Undisputed Issues (FLSA Coverage, Ms. De La Cruz is an 

“Employer” under the FLSA, and Florez is an “Employee” under 

the FLSA) 

Plaintiff seeks judgment in her favor on FLSA coverage, that Ms. De La Cruz 

is an “employer” under the FLSA, and that Florez is an “employee” and not an 

independent contractor under the FLSA. Defendants do not challenge any of these 

positions. However, Defendants assert that none of them were ever under dispute, 

so Plaintiff’s counsel only seeks judgment on them to increase their billable hours. 

Defendants thus contend these issues should be denied as moot. In reply, Plaintiff’s 

counsel argues they had legitimate reasons to adjudicate the issues. 

We find no reason why the Court should settle this argument regarding 

attorneys’ fees at this stage of the action. For now, we thus recommend that the Court 

grant Plaintiff’s motion for summary judgment on these issues to avoid any doubt 

that they are settled issues. But, Defendants have preserved their arguments if 

Plaintiff is ultimately the prevailing party and owed certain fees under the FLSA. 

And if Plaintiff’s counsel lacked a valid reason to seek judgment on these issues, the 

amount of attorneys’ fee owed to Plaintiff may be reduced accordingly. 

C. If Mr. De La Cruz is an “Employer” under the FLSA 

Plaintiff argues that in addition to Ms. De La Cruz, Mr. De La Cruz was an 

“employer” under the FLSA. Pursuant to the FLSA, “employers must pay employees 

minimum and overtime wages. Olivas v. A Little Havana Check Cash, Inc., 324 F. 

Hurricane Shutters, Inc., 711 F.3d 1299, 1306 (11th Cir. 2013) (“For the reasons that 

follow, Hoffman is not clearly on point and therefore did not overrule Quality Inn.”). 

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App’x 839, 844 (11th Cir. 2009) (citing 29 U.S.C. §§ 206, 207). An individual cannot 

be held “liable for violating the overtime provision of the FLSA unless he is an 

‘employer’ within the meaning of the Act.” Alvarez Perez v. Sanford-Orlando Kennel

Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (citing 29 U.S.C. § 207(a)(1); Donovan

v. Grim Hotel Co., 747 F.2d 966, 971 (5th Cir. 1984)). 

The FLSA broadly 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. 

§ 203(d); see also Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1309 

(11th Cir. 2013). Whether an individual comes under the scope of this definition “does 

not depend on technical or ‘isolated factors but rather on the circumstances of the 

whole activity.’” Alvarez Perez v. Sanford–Orlando Kennel Club, Inc., 515 F.3d 1150, 

1160 (11th Cir. 2008). 

To support that Mr. De La Cruz was Florez’s employer, Plaintiff presents the 

following evidence: (1) Ms. De La Cruz requested that Florez make some peas via 

Whatsapp for Mr. De La Cruz to go with Ms. De La Cruz’s shrimp and rice; (2) Mr. 

De La Cruz reprimanded Florez for not properly cleaning his shoes; (3) Mr. De La 

Cruz would ask Florez for something if he needed it; (4) Mr. De La Cruz was the lessor 

of the residence; and (5) Ms. De La Cruz had to speak to her husband to see if he 

agreed to hiring a cleaning service. This evidence falls well short of showing that it 

is undisputed that Mr. De La Cruz was Florez’s employer under the FLSA. 

To begin with, if Florez cooked as part of her work or just in the ordinary course 

of living with Defendants is in dispute. Ms. De La Cruz requesting that Florez cook 

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her husband peas as a side dish to her dinner may have nothing to do with Florez’s 

employment duties. This could be simply roommates coordinating dinner plans. Mr. 

De La Cruz also denies asking his wife to make this request of Florez. Mr. De La 

Cruz also denies ever reprimanding Florez regarding his shoes. And the text 

messages between Ms. De La Cruz and Florez discussing the alleged incident is vague 

and ambiguous. The rest of the evidence presented by Florez is generic and or 

possibly irrelevant. Because the specific evidence concerning Mr. De La Cruz being 

an “employer” under the FLSA is sparse, and viewing all evidence and factual 

inferences in the light most favorable to Defendants, Plaintiff’s motion for summary 

judgment seeking to establish Mr. De La Cruz as an “employer” under the FLSA 

should be DENIED. 

D. FLSA’s Minimum Wage Provisions 

Plaintiff next seeks to establish that Defendants violated the FLSA’s minimum 

wage provisions. Congress enacted the FLSA to protect all covered workers from 

substandard wages and oppressive working hours. See Barrenttine v. Arkensas-Best

Freight Sys., 450 U.S. 728, 739 (1981); 29 U.S.C. § 202(a); see also Pellon v. Bus.

Representation Int’l, Inc., 528 F. Supp. 2d 1306, 1309 (S.D. Fla. 2007) (“One of the 

primary purposes of the FLSA is to protect employees from substandard wages,” with 

the general requirement that employers compensate employees with a statutory 

minimum rate for work performed). The law was designed to ensure that any 

employee covered under the law would receive “[a] fair day’s pay for a fair day’s 

work[.]” Barrenttine, 450 U.S. at 739. In other words, “[b]y establishing a floor for 

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wages and a ceiling for hours worked without overtime compensation, lawmakers 

attempted ‘to compensate those who labored in excess of the statutory maximum 

number of hours for the wear and tear of extra work and to spread employment 

through inducing employers to shorten hours because of the pressure of extra cost.”’ 

Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1311 (11th Cir. 2007) (quoting 

Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460 (1948)). To that end, “the statute 

requires payment of minimum wages and overtime pay, 29 U.S.C § 206, § 207, and 

gives employees deprived of these payments the right to receive them. 29 U.S.C §

216(b); Maluvik v. Ameripark, LLC, 694 F. App’x 705, 705 (11th Cir. 2017).; see

also Lyon v. Whisman, 45 F.3d 758,764 (3rd Cir. 1995) (“The substantive sections of 

the FLSA, narrowly focusing on the minimum wage rates and maximum working 

hours, bear out its limited purpose.”). 

To prevail on her minimum wage claim, Plaintiff must demonstrate that she

worked overtime without compensation and Defendants knew or should have known 

of the overtime work. See Allen, 495 F.3d at 1314-15. Plaintiff concedes in her motion 

that the number of hours she worked per week is in dispute. She does so because the 

parties disagree on whether Florez was working during the time she was not 

watching the child and if the cleaning and cooking she did was part of her job duties 

or just part of her normal daily living. 

Plaintiff, however, argues she is entitled to summary judgment because 

Defendants did not keep records of when she worked. This argument relies on the 

burden shifting framework used when there is an absence of written time records or 

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a written agreement that establishes the hours worked for a live-in employee. Under 

these circumstances, the employee has the burden “to prove that he/she has in fact 

performed the work for which she claims that she was improperly compensated.” See 

Turcios Montoya v. Herington, 2014 WL 12536979, at *3 (S.D. Fla. Aug. 29, 2014)

(citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). Then, “the 

burden shifts to the employer to come forward with evidence of the precise amount of 

work performed.” Id.

While this burden shifting framework applies to this case, this does not 

automatically establish that Florez was not paid minimum wage. In fact, the one 

case cited by Florez states the opposite. See id. (“In Barraza, this Court found that 

in the absence of records or a written agreement, the facts relevant to determining 

the compensable hours are highly disputed and, therefore, create a genuine issue of 

material fact which precludes the entry of summary judgment.”) (citing Barraza v. 

Pardo, 985 F. Supp. 2d 1369, 1373 (S.D. Fla. Dec. 4, 2013)). Like Turcios and 

Barraza, there is no record of hours worked and number of compensable hours Florez 

worked are highly disputed, so entry of summary judgment must be precluded. It is 

up to the trier of fact to determine if Florez had any “down-time” while living with 

Defendants. Accordingly, Plaintiff’s motion for summary judgment on the issue of 

minimum wage should be DENIED. 

E. Overtime Exemption 

Plaintiff also seeks summary judgment in her favor that her work for 

Defendants was not exempt from overtime. The FLSA requires an employer to pay 

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an employee “an overtime wage of one and one-half times his regular rate for all hours 

he works in excess of forty hours per week.” See Josendis v. Wall to Wall Residence 

Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011); see also 29 U.S.C. § 207(a). A

plaintiff who has worked overtime without pay may bring a private FLSA action for 

damages. See 29 U.S.C. § 216(b). An unpaid-overtime claim has two elements: (1) an 

employee worked unpaid overtime, and (2) the employer knew or should have known 

of the overtime work. See Allen, 495 F.3d at 1314-15. 

In general, the FLSA’s overtime wage provisions do not apply to “any employee 

who is employed in domestic service in a household and who resides in such 

household[.]” 29 U.S.C. § 213(b)(21). However, “[e]mployees who work only 

temporarily, for example, for only a short period of time such as two weeks, for the 

given household are not considered live-in domestic service workers, because residing 

on the premises of such household implies more than temporary activity.” 29 C.F.R. 

785.23. 

Here, Plaintiff argues she was a temporary live-in domestic employee from 

September 2019 until her employment ended in March 2020 because she ceased living 

with Defendants full-time during this period. The record, however, is rife with 

contrary evidence that shows Florez may have lived at Defendants’ residence fulltime up until March 2020. For example, the complaint and Florez’s answers to 

interrogatories state that she lived with Defendants until March 2020. There is also

no question that Florez’s personal belongings were still in Defendants’ residence as 

late as April 2020. In addition, Florez stated in her deposition that she stayed at 

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Defendants’ residence after September 2019 whenever Defendants needed her to, 

which was at least 4-5 days a week. [D.E. 31-1, pg. 36:4-6]. And that she did not live 

with her husband full-time until she started quarantining due to the pandemic. [D.E. 

31-2, pgs. 35-36]. Therefore, a jury must decide if Florez lived with Defendants fulltime after September 2019, and Plaintiff’s motion for summary judgment on this 

issue should be DENIED. 

F. Setoff Compensation

Last, Plaintiff contends Defendants are not entitled to setoffs for monies paid 

to her for vacation pay, pay received for time when Defendants were away, meals and 

lodging, or loans made to Florez that she did not repay. Defendants assert they only 

seek to offset a single $450 loan Ms. De La Cruz gave Florez that was not repaid. 

Setoffs may be appropriate in FLSA actions if they do not cause a plaintiff’s wages to 

fall below the statutory minimum. See Morrison v. Exec. Aircraft Refinishing, Inc., 

434 F. Supp. 2d 1314, 1321 (S.D. Fla. 2005) (citing Singer v. City of Waco, Tex., 324 

F.3d 813, 828 n. 9 (5th Cir. 2003)). 

According to Defendants, Florez only worked 20 hours the week the loan was 

made, so the potential $450 setoff would not cause Florez’s wages to fall below the 

statutory minimum as she was already compensated $500 that week. Thus, because

the number of hours Florez worked is in dispute, the setoff question is not appropriate

for summary judgment. This is correct. 

In other words, even if Florez paid back the $450 loan, she would still be

compensated $500 that week (instead of $950), which is well above the statutory 

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minimum for 20 hours worked in a single week. Now, if Florez can show she worked 

more than 52 hours that week (the number of hours where $500 for the week would 

be below the statutory minimum), then Defendants cannot offset the entire $450 loan.

Or it could be offset on a sliding scale. In any event, we cannot determine if an offset 

is appropriate until the jury determines the number of hours Florez worked the week 

the $450 loan was due. Accordingly, Plaintiff’s motion for summary judgment on the 

issue of setoff compensation should be DENIED. 

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Defendants’

motion for partial summary judgment [D.E. 30] should be GRANTED and Plaintiff’s 

motion for partial summary judgment [D.E. 32] should be GRANTED in part and 

DENIED in part: 

A. Plaintiff’s motion for judgment in her favor on FLSA coverage, that Ms. De 

La Cruz is an “employer” under the FLSA, and that Florez is an “employee” 

and not an independent contractor under the FLSA should be GRANTED. 

B. Plaintiff’s motion on the remaining issues should be DENIED.3

Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the parties have 

fourteen (14) days from service of this Report and Recommendation within which to 

file written objections, if any, with the District Judge. Failure to timely file objections 

shall bar the parties from de novo determination by the District Judge of any factual 

2 To be clear, Plaintiff failed on every issue that Defendants’ challenged and

only succeeded on the issues in which Defendants were in agreement. 

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or legal issue covered in the Report and shall bar the parties from challenging on 

appeal the District Judge’s Order based on any unobjected-to factual or legal 

conclusions included in the Report. 28 U.S.C. § 636(b)(1); 11th Cir. Rule 3-1; see, e.g., 

Patton v. Rowell, 2017 WL 443634 (11th Cir. Feb. 2, 2017); Cooley v. Comm’r of Soc. 

Sec., 2016 WL 7321208 (11th Cir. Dec. 16, 2016).

DONE AND SUBMITTED in Chambers at Miami, Florida, this 26th day of 

July, 2021.

/s/ Edwin G. Torres 

EDWIN G. TORRES

United States Magistrate Judge

Case 1:20-cv-22766-KMW Document 46 Entered on FLSD Docket 07/26/2021 Page 18 of 18