their employment.

Lastly, whether Comcast is Plaintiffs’ joint-employment under the IECA is a matter of
first impression. Plaintiffs, however, do not address the issue of joint-employment. Rather,
Plaintiffs argue that they are employees because the IECA establishes a rebuttable presumption
that an individual performing services for a contractor, as defined by the IECA, is an employee.
See, e.g., World Painting Co. v. Costigan, 967 N.E.2d 485, 489 (Ill. App. Ct. 2012). The Court
agrees with Comcast that Plaintiffs must first establish that Comcast employs them before this
rebuttable presumption as to their status as employees comes into play.

An employer violates the IECA by failing to properly designate or classify individuals
performing services as employees. 820 Ill. Comp. Stat. 185 § 20. An “employer” is “any
contractor that employs individuals deemed employees under Section 10 of this Act.” Id. § 5
(emphasis added). Here, it is undisputed that W&E employs Plaintiffs. W&E is responsible for
classifying it workers; W&E, not Comcast, pays W&E technicians for their work. Comcast has
no input into how much W&E pays technicians for their services. The record shows that when
W&E technicians are classified by W&E as independent contractors, W&E pays technicians
based on the quantity and type of work that they perform, with each type of service having a
particular price. Further, when W&E technicians are classified by W&E as employees, W&E
determines what hourly rate to pay them, whether to pay them on a salary basis, and whether to
give technicians production bonuses. Moreover, W&E technicians direct any questions
regarding pay to W&E.

To the extent that Plaintiffs allege that Comcast is their joint-employer under the IECA,
Comcast urges the Court to adopt the legal framework employed in analyzing joint-employment

under the FLSA and other Illinois wage laws. Because neither the Illinois Supreme Court, nor
20



safety and security of Comcast customers, is qualitatively different from the control exercised by

anemployer. Moreau v. Air France, 356 F.3d 942, 951 (9th Cir. 2004).

Second, Plaintiffs argue that Comcast effectively supervises and controls W&E
technicians’ conditions of employment because it generates all the work performed by
technicians, provides routing software (TechNet), requires the technicians to complete work
orders within a scheduled window of time, and monitors technician work performance with
respect to estimated time of arrival and job activation. Plaintiffs’ argument, however, largely
ignores the difference between affecting work performance as opposed to exercising supervision

or control. Jean-Louis v. Metro. Cable Comme’ns, Inc., 838 F. Supp. 2d 111, 126 (S.D.N.Y.

2011). That Comcast routes work orders—which include time windows for performance—to
W&E’s general pool certainly affects when W&E technicians perform those jobs, but W&E, not
Comcast, sets the work schedules for its technicians and administers disciplinary action, if any,
to the technicians. Comcast does not specify the number of technicians working at any given
time. Further, if a technician wants a day off, he has to request it from a W&E supervisor who
manages attendance and scheduling. W&E technicians are also required to report to the W&E
warehouse each morning and, at the end of the day, return work orders to the W&E facility.
WE assigns technicians their work and communicates with them via their own independent
dispatch department. Indeed, Plaintiffs testified that they received discipline from W&E for
calling Comcast dispatch rather than W&E dispatch. While there is some evidence that W&E
technicians contact Comcast dispatch or visit a Comcast facility while performing their work,
this does not support an inference of supervision and control—it is merely a function of the fact
that W&E technicians install Comcast equipment and services. See Jean-Louis, 838 F. Supp. 2d

at 128 (“It would be quite unusual if a service provider never had any contact with its client, and
14



b. That W&E would agree with the Comcast requirement to conduct an initial and
annual certification of a company’s compliance with FLSA wage and hour laws
and other state wage and hour laws and that such certification would be submitted
by an acceptable wage and hour attorney.

c. The amount of annual revenue obtained from Comcast over the past five years
ranging from $1,422,366 to $1,916,902.

d. That W&E would be willing to participate in quarterly reviews to review their
progress on Comcast metrics.

e. That W&E would agree to Comcast’s self-invoicing process where Comcast
would identify the time worked and pay preferred contractors within 15 days
of the completion of such work.

f. That Comcast was W&E’s only customer.

g. That W&E uses an authorized Comcast vendor to conduct background checks.

h. That W&E uses an authorized Comcast vendor to conduct drug screens.

Pls.’ Additional Uncontested Statements of Facts 28. In addition, the request for proposal
required W&E to fill out its current hourly rates for each service area identified in the
attachment, explained the key components of W&E’s response and pricing, and asked W&E to
bid only on the service areas that it is capable of supporting.

Comcast enters into a contract with W&E annually, titled the Preferred Vendor
Agreement for Broadband Installation / Disconnection / Construction (the “Preferred Vendor
Agreement”). The Preferred Vendor Agreement states:

It is understood and agreed that Contractor is an independent Contractor and that:

(1) no agency, employment, joint venture, co-employer or partnership is created by

the Documents or between the parties; (ii) the business to be operated by Contractor

is separate and apart from any business which may be operated by the Company;

(iii) Contractor is not an Affiliate of the Company; and (iv) no representation will be

made by either party which would create an agency, employment or partnership

relationship between the parties. Neither party shall: (A) have the power or authority

to act for the other in any manner to create obligations or debts which would be

binding upon the other; (B) be responsible for any obligation or expense whatsoever

of the other; or (C) be responsible for any act or omission of the other or any
employee of the other.
Def. Comcast Corp. & Comcast Comme’ns Mgmt. LLC’s Rule 56.1(A)(3) Statement of

Undisputed Facts in Supp. of Their Mot. for Summ. J. 8 [hereinafter Def. Statement of



intermediate appellate courts have addressed the issue of joint-employment in the context of the
IECA, it is the Court’s duty to interpret the IECA “as best [it] predict[s] the Illinois Supreme
Court would.” ADT Sec. Servs., Inc. v. Lisle- Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th
Cir. 2012). Although the IECA is silent on the issue of joint-employment, it is significant that
the Illinois Supreme Court has articulated a test for the existence of joint-employers, as discussed
above. Vill. of Winfield, 678 N.E.2d at 1044. Additionally, the Illinois Appellate Court has

applied this standard in evaluating joint-employment under the IWCPA. Andrews, 838 N.E.2d

at 904. It makes sense to use the same standard to govern the IECA. Under this test, Plaintiffs’
IECA claim also fails as a matter of law. Summary judgment is therefore appropriate.
Ill. CONCLUSION
For the foregoing reasons, Comcast’s motion is granted. Summary judgment is entered
in favor of Comcast on all of Plaintiffs’ claims.

IT IS SO ORDERED.

Lisle

CHARLES RONALD NORGLE, Judg
United States District Court

DATE: September 4, 2013

21



separate dispatch department; W&E provides its technicians with vehicles; and W&E provides
its technicians with the opportunity to purchase uniforms (collared short-sleeved polo shirts or
long-sleeved denim shirts, either undecorated or identifying them as a “Comcast Approved
Contractor”). Moreover, Gonzalez testified that he never visited a Comcast facility, and Zampos
testified that he was only directed to Comcast facilities when the W&E warehouse manager
either did not have the necessary equipment in, or he was running late for a route.

Plaintiffs next assert that W&E’s business is tied exclusively to Comcast, and that
W&E’s business could shift from one putative joint employer to another. Although Comcast is
currently W&E’s only customer (by its own choice—the contract between Comcast and W&E is
non-exclusive), there is some evidence that W&E also receives revenue from installing PBX
systems. Even viewing the evidence in the light most favorable to Plaintiffs, the absence of a
broad client base is not a proxy for joint-employment because it is “perfectly consistent with a
legitimate []contracting relationship.” Zheng v. Liberty Apparel Co., 355 F.3d 61, 72 (2d Cir.
2003). W&E’s apparent dependence on Comcast simply does not translate into functional
control by Comcast over W&E technicians. See id. at 75 n.12.

Finally, Plaintiffs argue that W&E technicians perform the same duties as in-house
Comcast technicians, and this factor weighs in favor of a joint-employment relationship. Based
on the totality of the circumstances of this case and all relevant factors, however, there is no
genuine issue for trial with respect to whether Comcast is Plaintiffs’ joint-employer. The
undisputed or uncontroverted facts show that Comcast lacks formal or functional control over the
working conditions of W&E technicians. Accordingly, the Court holds that Comcast is not
Plaintiffs’ joint-employer within the meaning of the FLSA.

Likewise, Comcast is not Plaintiffs’ joint-employer within the meaning of their state-law,
18



following personal information: contact information, social security numbers, licensing
information, vehicle information, background check information, and drug screening
information. Comcast disputes that it maintains termination forms. Comcast states first, that the
record citations regarding termination forms show that the “termination form” is a list of
technicians whose identifications numbers are to be terminated, not termination paperwork and,
second, that Plaintiffs provide no evidence as to what paperwork is actually submitted to
Comcast.

As for payment, Comcast determines the prices it pays W&E for services based, in part,
on the Comcast Scope of Work Calculator. Specifically, the Scope of Work Calculator itemizes
how long work tasks should take and associates a point value and hourly rate for each job.
Plaintiffs state that Comcast standardizes the labor rate structure for technicians and sets forth
hourly rates of pay based on standardized estimates of time it takes technicians to complete
installations and service calls. Comcast, however, controverts this fact. Comcast states that the
Scope of Work Calculator is merely a base start for services. Comcast provides evidence that the
hourly rates listed in the Scope of Work Calculator do not, in fact, indicate how much each W&E
technician is paid; rather, it aides Comcast in determining how much W&E is paid. When W&E
completes work, it sends an invoice to Comcast. In turn, Comcast reviews the invoice for any
over or under-billing, withholds any amounts debited due to quality issues or equipment loss, and
pays W&E directly. Comcast has no input into how much W&E pays technicians for their
services or whether W&E passes any debits through to the technicians. When W&E technicians
are classified as independent contractors, W&E pays technicians based on the quantity and type
of work that they performed, with each type of service having a particular price. When W&E

technicians are classified as employees, W&E determines what hourly rate to pay them, whether
10



technicians to “ride out” with other W&E technicians. Id. (internal quotation marks and citation
omitted). W&E also holds mandatory training meetings, at least once a month. Comcast
Resource Manager Wright-Castro testified that “Comcast does not ask W&E to ask their
technicians anything. They will provide W&E installation standards, and it is up to W&E on
how they communicate that information to their technicians.” Id. §29. Comcast states that it
does not require technicians to undergo specific training, nor does it provide or participate in any
training given to W&E technicians. Comcast also states that it is not aware of how W&E
technicians are trained. Plaintiffs dispute this to the extent that Comcast has provided W&E with
some training materials to be used for W&E technicians. In addition, Comcast provides
information to W&E management regarding new Comcast products and the specifications for the
installation of such products. W&E is then responsible for choosing what information it
disseminates to technicians. W&E officer Jorge Chirinos testified that “[t]he specifications
always go to W&E Communications, not to a specific independent contractor or technician.” Id.
[31 (internal quotation marks and citation omitted).

Under the Preferred Vendor Agreement, Comcast requires that W&E perform
background checks and drug tests on all technicians and confirm that they have valid drivers’
licenses before they can service Comcast customers and install Comcast products. In addition to
its obligations under the Preferred Vendor Agreement, W&E requires drug testing following any
major incident: accidents, damage, or security claims. The Preferred Vendor Agreement also
provides that all contractors that enter Comcast customers’ property must wear identification
badges. The Preferred Vendor Agreement specifies that badges will be issued after acceptable
background verification and drug screening has occurred, and thereafter requires annual renewal

and re-issuance of badges in connection with annual background checks. Comcast provides
7


Undisputed Facts]. The Preferred Vendor Agreement is non-exclusive and does not prevent
WE from contracting with other cable or satellite installation companies. Indeed, W&E has
received revenue from hooking up Private Branch Exchange (“PBX”) systems (private telephone
networks)—separate income from Comcast.

As part of the Preferred Vendor Agreement, Comcast requires W&E to provide sufficient
labor to perform all the work required by Comcast and in accordance with Comcast
specifications, minimum standards, and expectations. Specifically, W&E technicians must
perform the installation, disconnect, and repair services in the manner set forth in the Statements
of Work appended to the Preferred Vendor Agreement. Each Statement of Work details the type
of work, the location in which the work is to be performed, the specifications for the work,
completion dates, items that will be installed in customer’s premises, and the pricing for each
type of work. The Preferred Vendor Agreement requires W&E technicians to comply with its
“on time” customer guarantee and to ensure that technicians arrive at customers’ homes within
the scheduled appointment window. It also requires W&E technicians to wear uniforms at all
times: collared short-sleeved polo shirts or long-sleeved denim shirts, either undecorated or
identifying them as a “Comcast Approved Contractor.” W&E technicians can buy uniforms
through W&E, but it is their choice whether to buy them. Technicians can also purchase tools
from W&E to perform their work. Comcast does not provide tools for technicians. After April
2009, W&E provided technicians with company vehicles.

WE is responsible for ensuring that technicians are adequately trained to perform work
under the Preferred Vendor Agreement. Former W&E Manager Giovenco testified that W&E
trains “new hires and existing techs in one way form or another.” Def. Statement of Undisputed

Facts § 25 (internal quotation marks and citation omitted). This training includes sending W&E
6


wage claims. The ILMW parallels the FLSA, and the same analysis generally applies to both
statutes. Haynes v. Tru-Green Corp., 507 N.E.2d 945, 951 (Ill. App. Ct. 1987); see also Villareal

v. El Chile, Inc., 776 F. Supp. 2d 778, 784 (N.D. Ill. 2011) (citing Condo v. Sysco Corp., 1 F.3d

599, 601 n.3 (7th Cir. 1993)) (additional citations omitted). Further, contrary to Plaintiffs’
assertion, the test for determining whether a joint-employment relationship exists under the

IWPCA is not entirely different than the FLSA and IMWL. Lewis v. Giordano’s Enters., Inc.,

921 N.E.2d 740, 746 (Ill. App. Ct. 2009) (“[G]iven the similarity in the language and the
underlying purposes and public policy of the federal and state statutes. . . . [F]ederal cases
interpreting the FLSA, while not binding on this court, are persuasive authority and can provide
guidance in interpreting issues under the [IMWL] and the [[WPCA].”). Nonetheless, in Illinois,
“[t]he test for the existence of joint employers is whether two or more employers exert
significant control over the same employees-where from the evidence it can be shown that they
share or co-determine those matters governing essential terms and conditions of employment.”
Vill. of Winfield v. Ill. State Labor Relations Bd., 678 N.E.2d 1041, 1044 (Ill. 1997) (internal

quotation marks and citation omitted); see also Andrews v. Kowa Printing Corp., 838 N.E.2d

894, 904 (Ill. App. Ct. 2005) (applying Illinois joint-employment test to WPCA claim).
Relevant factors in determining whether a joint-employer relationship exists include “the
putative joint employer’s role in hiring and firing; promotions and demotions; setting wages,
work hours, and other terms and conditions of employment; discipline; and actual day-to-day
supervision and direction of employees on the job.” Vill. of Winfield, 678 N.E.2d at 1044. For
the same reasons discussed above, Plaintiffs’ [WPCA claim fails as a matter of law. Comcast
does not exert significant control over W&E technicians—Plaintiffs fail to show that W&E and

Comcast share or co-determine those matters governing the essential terms and conditions of
19



testified that they received discipline from W&E for calling Comcast dispatch rather than W&E
dispatch.

Under the Preferred Vendor Agreement, Comcast requires W&E to perform quality
control checks on a minimum of 10% of the work performed by its workforce and any
discrepancies noted during such quality control checks must be corrected within three working
days. The Preferred Vendor Agreement also provides that Comcast will randomly select a
percentage of W&E’s work to review for quality and to ensure that contractors are doing the job
in accordance with Comcast standards. If Comcast discovers any quality errors, it reports the
errors to W&E. Comcast charges W&E a fee for failed quality control. Comcast also forwards
customer complaints of W&E technicians to W&E, and W&E determines what corrective or
disciplinary action to issue to the technicians. Similarly, Comcast informs W&E management,
not the individual technicians, when it receives reports of good performance for W&E
technicians.

In addition, Comcast conducts audits to ensure that W&E is performing its obligations
under their contract. Specifically, the Comcast auditors visit the W&E facility and the W&E
leadership team prepares a report, including, inter alia, whether there is proper signage on W&E
vehicles, and whether W&E technicians are properly uniformed and have the tools necessary to
perform the work. W&E then provides the report to the Comcast auditors. Comcast conducts
meetings with W&E’s leadership team to review W&E’s metrics, including their rework
numbers, upstream transmit numbers, missed appointments, and escalations.

With respect to record retention, Comcast maintains W&E technician badge
identification request forms and quality check forms. Comcast also maintains the Comcast

Contractor Checklist, signed by W&E management, and submitted to Comcast, that includes the
9


Go

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LOUIS ZAMPOS, et al., )
Plaintiffs, } Civil Action No. 12 CV 1268
v. } Hon. Charles R. Norgle
W&E COMMUNICATIONS, INC., et al., }
Defendants. }

OPINION AND ORDER

CHARLES R. NORGLE, District Judge

This is a putative collective action under the Fair Labor Standards Act (“FLSA”), 29
USS.C. § 201 et seg., and a putative class action under the Illinois Wage Payment and Collection
Act (“IWPCA”), 820 Ill. Comp. Stat. 115 et seq., the Illinois Minimum Wage Law (“IMWL”),
820 Ill. Comp. Stat. 105 et seq., and the Illinois Employee Classification Act (“IECA”), 820 Ill.
Comp. Stat. 185 ef seq. Plaintiffs Louis Zampos (“Zampos”) and Juan G. Gonzalez (“Gonzalez”)
(collectively, “Plaintiffs”) seek to hold Defendants Comcast Corporation and Comcast Cable
Communications Management, LLC (collectively, “Comcast”) jointly and severally liable for
alleged unpaid wages and other relief sought in this lawsuit against Defendants W&E
Communications, Inc. (“W&E”), Jorge Chirinos, and William Perez (collectively,
“Defendants”), alleging that Comcast is Plaintiffs’ joint-employer. Before the Court is

Comcast’s motion for summary judgment. For the following reasons, the motion is granted.



II. DISCUSSION

A. Standard of Decision

Summary judgment is appropriate 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); see also Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 336 (7th Cir. 2012).
“A genuine issue of material fact exists when ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Wells v. Coker, 707 F.3d 756, 760 (7th Cir. 2013)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court draws all
reasonable factual inferences in favor of the nonmoving party. Id. (citing Spivey v. Adaptive
Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010)). But before the nonmoving party “can benefit
from a favorable view of evidence, he must first actually place evidence before the courts.”
Montgomery v. Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). Simply showing that
there is “some metaphysical doubt as to the material facts” will not defeat a motion for summary

judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(citations omitted); see also Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008).

B. Joint-Employer Liability

Comcast moves for summary judgment on whether it is a joint-employer. Because the
material facts in this case are undisputed or uncontroverted, this issue is appropriate for
adjudication on summary judgment. See Moldenhauer v. Tazewell-Pekin Consol. Comme’ns
Ctr, 536 F.3d 640, 643 (7th Cir. 2008) (applying FLSA standard for joint-employer to a claim
under Family and Medical Leave Act). “[F]or a joint-employer relationship to exist, each
alleged employer must exercise control over the working conditions of the employee, although

the ultimate determination will vary depending on the specific facts of each case.” Id, at 644
12



to pay them on a salary basis, and whether to give technicians production bonuses. W&E
technicians direct questions regarding pay to W&E.

Finally, Plaintiffs testified that they are required to report to the W&E warehouse each
morning, and at the end of the day, return work orders to the W&E facility. Gonzalez testified
that he never visited a Comcast facility. Zampos, however, visited the Comcast warehouse “10,
20 times in a year.” Def. Statement of Undisputed Facts 53. Zampos testified that if there was
no equipment at the W&E warehouse he would wait for equipment to be transported from the
W&E warehouse manager, but if the warehouse manager either did not have the equipment in or
he was running late for a route, he was directed to pick up equipment at a Comcast warehouse.
C. Procedural History

On February 22, 2012, Plaintiffs initiated this putative collective action under the FLSA
and a putative class action under the IWPCA, IMWL, and IECA. Plaintiffs allege that between
January 1, 2008 to March 31, 2009 Defendants improperly classified Plaintiffs as independent
contractors; and, that after April 1, 2009, Plaintiffs were reclassified as employees and
Defendants did not pay taxes and contributions for Plaintiffs that were required for employees
and not required for independent contractors, that Defendants improperly deducted monies from
Plaintiffs’ wages, including but not limited to charges for insurance, meter rental, uniforms,
tools, and other equipment and work errors/charge backs, that Defendants knew and permitted
Plaintiffs’ to regularly work more than forty hours per week without proper overtime
compensation, that Defendants failed to pay Plaintiffs for all overtime hours actually worked at a
rate of one and one half times the employee’s regular hourly rate, and that Defendants failed to
keep proper records of all the time Plaintiffs worked. Comcast now moves for summary

judgment on whether it is a joint-employer. The motion is fully briefed and before the Court.
11



identification numbers and issues the identification badges. The purpose of the identification
badges is to protect the safety and security of Comcast’s customers. Although Comcast does not
have the authority to terminate the employment of a W&E technician, it can de-badge a
technician for security related reasons. The parties dispute the effect of de-badging a technician.
According to Comcast, the determination means only that the technician cannot perform services
for Comcast customers—WE&E is free to engage the technician to work in another capacity or
even for other cable companies as the Preferred Vendor Agreement is non-exclusive. Plaintiffs,
however, argue that by de-badging a technician, Comcast is effectively terminating his
employment.

As required by the Preferred Vendor Agreement, W&E maintains its own dispatch
department, which is capable of monitoring all activity performed by its field staff and making
required updates into Comcast’s system databases on a real time basis. Plaintiff Gonzalez
testified that he interacted with Comcast dispatch “just to activate the equipment and to access
jobs.” Def. Statement of Undisputed Facts { 45 (internal quotation marks and citation omitted).
Zampos testified that “[i]f you were working for the commercial department . . . you had to
check in with our department first, dispatch, tell them the customer is not there. They call and
verify that the customer’s not there. Then you get approval to call Comcast dispatch and get a no
access.” Id. {| 46 (internal quotation marks and citation omitted) (alteration in original). Zampos
further testified that “[i]f you were working for the residential department, you could call
dispatch directly to Comcast . . . for provisioning, rescheduling . . . order[ing] different
equipment because only Comcast has access [for] provisioning equipment through their tech
department, customer rescheduling, and changing the account or account information[.]” Id.

47 (internal quotation marks and citation omitted) (alterations in original). Plaintiffs also
8


contracting companies, including W&E. W&E technicians service Comcast customers and
install Comcast products. Zampos began working for W&E in 2006 or 2007. Zampos
transitioned to Matrix Communications for approximately two months in 2008 or 2009, and then
returned to W&E until the end of November 2010. Gonzalez worked for W&E for
approximately eight months in 2010, and for approximately six months in 2011.

Comcast defines the work by technicians as “the labor necessary to accomplish, and all
materials, supplies and equipment to be used in connection with and/or necessary for, the
construction, installations, Audits, Disconnects . . . including all labor, materials, supplies, and
equipment.” Pls.’ Additional Uncontested Statements of Facts | 12. W&E technicians use
Comcast equipment, including cable boxes and modems, to perform installations. Comcast
routes work orders to W&E’s general pool and, in turn, W&E routes and assigns work orders to
W&E technicians. W&E technicians receive work orders via TechNet, a software program
provided by a third-party to Comcast. TechNet contains job details, such as Comcast customer
information, the job location, the technician identification number, and the start and stop time for
each job performed. Comcast can track the jobs of technicians through a database, On-Track,
that will report the completed jobs performed by technicians. Additionally, although Comcast
has the capability to observe a technician’s estimated time of arrival, or when a technician begins
a job or activates a service, Comcast does not observe W&E technicians throughout the day.

Comcast issues “request for proposals” to manage the contracting companies, including
WEE, that perform installation work. The purpose of the initiatives is to provide better and
consistent customer experiences, by way of certified technicians, to reduce Comcast expenses
and increase revenue. Comcast issued a request for proposal to W&E. In response, W&E stated:

a. That W&E provided Installation services for Comcast in the city of Chicago.
4



the existence of such contact does not support an inference of supervision and control.”).
Although Comcast has the capability to observe a W&E technician’s estimated time of
arrival, or when the technician begins a job or activates a service, Comcast does not observe
W&E technicians’ activities throughout the day. To the extent that Comcast engages in general
monitoring related to quality and delivery of services, this type of activity is perfectly consistent
with a typical, legitimate contracting arrangement. “Quality control and compliance-monitoring
that stem from the nature of the business—that is, from the nature of the goods or services being
delivered—are qualitatively different from control that stems from the nature of the relationship
between the employees and the putative employer.” Grenawalt v. AT&T Mobility, LLC, No. 11 |
Civ. 2664 (ALC), 2013 WL 1311165, at *11 (S.D.N.Y. Apr. 2, 2013) (internal quotation marks |
and citation omitted). Here, Comcast conducts meetings with W&E’s leadership team to review
W&E’s metrics, including their rework numbers, upstream transmit numbers, missed
appointments, and escalations. It also randomly selects a percentage of W&E’s work to review
for quality and to ensure that its standards are met and that W&E’s overall performance adheres
to its obligations under the Preferred Vendor Agreement. If Comcast discovers any quality
errors, it reports the errors to W&E. Comcast also informs W&E management, not the
individual technicians, when it receives reports of good performance for W&E technicians.
Moreover, Comcast forwards customer complaints of W&E technicians to W&E, and W&E
determines what corrective or disciplinary action, if any, to issue to W&E technicians. Indeed,
“[a]ny company concerned about its customers’ safety would be careless to blindly delegate in-
home installation responsibilities without verifying that jobs are satisfactorily completed.
Comcast’s quality control procedures ultimately stem from the nature of their business and the

need to provide reliable service to their customers, not the nature of the relationship between the
15



technicians. However, Comcast’s retention of records—W&E technician badge identification
request forms; quality check forms; the Comcast Contractor Checklist, signed by W&E
management, and submitted to Comcast, that includes personal information: contact
information, social security numbers, licensing information, vehicle information, background
check information, and drug screening information; and a list of technicians whose
identifications numbers are to be terminated—‘is only an extension of Comcast’s [quality]
control procedures.” Jacobson, 740 F. Supp. 2d at 692; see also Lawrence v. Adderley Indus.,

Inc., No. CV-09-2309 (SJF)(ETB), 2011 WL 666304, at *9 (E.D.N.Y. Feb. 11, 2011). Without

the retention of these personnel and performance based records, Comcast could not ensure that
W&E technicians are fit to enter customer’s homes, that Comcast receives the services for which
it is entitled, and that the W&E technicians fulfilling installation services are authorized to do so.
Jacobson, 740 F. Supp. 2d at 692. Plaintiffs fail to present any evidence that the maintenance of
this type of information is used to exercise control over the work or working conditions of W&E
technicians, or that Comcast retains these records for any purpose beyond quality control. Id.

In addition to the non-exclusive factors set forth in Moldenhauer, Plaintiffs list other
factors they deem relevant in determining whether an employer-employee relationship exists.
Plaintiffs argue that W&E technicians use Comcast equipment. Specifically, Plaintiffs point out
that Comcast provides the cable boxes and modems necessary for W&E technicians to perform
installations, and permits technicians to visit Comcast warehouses to pick up Comcast
equipment, and directs technicians to clean aging Comcast equipment. While Comcast provides
proprietary equipment to install and service Comcast customer’s work orders, it is undisputed
that W&E technicians use their own tools (largely purchased through W&E) to do so. It is also

undisputed that: W&E has its own warehouse out of which their technicians work; W&E has a
17



Cir. 2000) (internal quotation marks and citation omitted). In addition, many of Plaintiffs’
responses are improper to the extent they are conclusory, argumentative, or otherwise include
additional facts. See Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir. 2005)
(“Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary
judgment file a response that contains a separate ‘statement . . . of any additional facts that
require the denial of summary judgment.” (quoting N.D. Ill. LR 56.1(b)(3)(C) (additional
citations omitted)); Menasha Corp. v. News Am. Mktg. In-Store, Inc., 238 F.Supp.2d 1024, 1029
(N.D. Ill. 2003) (“{T]he Court will disregard all argumentative, conclusory, unsupported or
otherwise non-conforming portions of Menasha’s ‘Statement of Material Facts under L.R.

56.1.’”). The Court also notes that Plaintiffs’ responses “[s]aying that a document ‘speaks for

itself’ is not a denial under Local Rule 56.1(b)(3)(B).” Henderson v. Bovis Lend Lease, Inc.
848 F. Supp. 2d 847, 849 (N.D. Ill. 2012) (citations omitted). All material facts submitted by
Comcast and not properly contested or controverted by Plaintiffs are deemed admitted. Finally,
Plaintiffs statements of additional facts are deficient to the extent that the record citations do not
support the facts asserted. See N.D. Ill. LR 56.1(b)(3)(C). It is not the Court’s responsibility to
“ferret through the record” in search of factual support for Plaintiffs’ assertions. Peters v.
Renaissance Hotel Operating Co., 307 F.3d 535, 547 n.10 (7th Cir. 2002) (citing Colburn v. Trs.
of Ind. Univ., 973 F.2d 581, 593 (7th Cir. 1992)).
B. Facts!

Comcast provides cable, entertainment, and communications products and services in the

state of Illinois. To supplement its in-house workforce, Comcast engages the services of outside

' The Court takes the undisputed facts from the parties’ Local Rule 56.1 statements, and notes properly
disputed facts within the text.


I. BACKGROUND
The facts are largely undisputed, in part, because Plaintiffs failed to comply with the
requirements of United States District Court for the Northern District of Illinois Local Rule 56.1.
A. Local Rule 56.1
“District courts have broad discretion to enforce and require strict compliance with their
local rules.” Benuzzi v. Bd. of Educ. of City of Chi., 647 F.3d 652, 655 (7th Cir. 2011) (citing
Elustra v. Mineo, 595 F.3d 699, 710 (7th Cir. 2010)). Local Rule 56.1 is designed to conserve

judicial time and resources. See Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527

(7th Cir. 2000) (“These rules assist the court by organizing the evidence, identifying undisputed
facts, and demonstrating precisely how each side proposed to prove a disputed fact with
admissible evidence.” (internal quotation marks and citation omitted)). Pursuant to Local Rule
56.1, a litigant opposing a motion for summary judgment must file “a response to each numbered
paragraph in the moving party’s statement, including, in the case of any disagreement, specific
references to the affidavits, parts of the record, and other supporting materials relied upon.”
N.D. Ill. LR 56.1(b)(3)(B). “Local Rule 56.1’s enforcement provision provides that when a
responding party’s statement fails to controvert the facts as set forth in the moving party’s
statement in the manner dictated by the rule, those facts shall be deemed admitted for purposes
of the motion. Smith v. Lamz, 321 F.3d 680 (7th Cir. 2003) (citing N.D. Ill. LR 56.1.(b)(3)(C)).
Here, many of Plaintiffs’ submissions do not comply with the requirements of the local
tule. On point, Plaintiffs deny, or deny in part, a substantial number of Comcast’s statement of
material facts without evidentiary support in the record. “An answer that does not deny the
allegations in the numbered paragraph with citations to supporting evidence in the record

constitutes an admission.” Jupiter Aluminum Corp. v. Home Ins. Co., 225 F.3d 868, 871 (7th
2



(citations omitted). In applying this standard, the Seventh Circuit, in Moldenhaurer, affirmed the
district court’s grant of summary judgment, finding no joint-employment liability where the
alleged joint-employers merely contracted for services with the primary employer and exercised
no control over the work or working conditions of the employee. Id. at 645. Factors relevant in
determining whether a joint-employer relationship exists include but are not limited to whether
the alleged employer “(1) had the power to hire and fire employees, (2) supervised and
controlled employee work schedules or conditions of payments, (3) determined the rate and
method of payment, and (4) maintained employment records.” Id. at 644 (internal quotation
marks and citation omitted). The Moldenhaurer court made clear that “[a]lthough these factors
are certainly relevant in deciding whether an employer-employee relationship exists, it would be
foolhardy to suggest that these are the only relevant factors, or even the most important.” Id.

Here, as in Moldenhauer, Comcast contracts for services provided by W&E, the primary

employer. Plaintiffs argue that Comcast nonetheless performs the formal and functional control
of an employer. Plaintiffs first argue that Comcast plays a role in hiring W&E technicians to the
extent it requires W&E to perform background and drug testing on all technicians. Plaintiffs
further argue that Comcast has the authority to terminate technicians; and, exercises that
authority by making recommendations to de-badge W&E technicians. To the extent Comcast
plays a role in the hiring and firing process, it is only in the context of quality control, safety, and
security of Comcast’s customers, whereas W&E hires the applicant of its choice without input
from Comcast (provided that the W&E applicant passes the background and drug tests); and,
fires technicians for, inter alia, insubordination, refusal to work, habitual tardiness, and
absenteeism. Additionally, there is no evidence to suggest that W&E first contacts Comcast for

permission before terminating W&E technicians. Thus, this purported control, relating to the
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technicians and Comcast.” Jacobson, 740 F. Supp. 2d at 691. Thus, the minimal control
Comcast exercises has little probative value here.

Third, Plaintiffs argue that Comcast determines W&E’s pay structure. However, it is
undisputed that Comcast has no input into how much W&E pays technicians for their services.
When W&E technicians are classified by W&E as independent contractors, W&E pays
technicians based on the quantity and type of work that they perform, with each type of service
having a particular price. When W&E technicians are classified by W&E as employees, W&E
determines what hourly rate to pay them, whether to pay them on a salary basis, and whether to
give technicians production bonuses. W&E technicians direct questions regarding pay to W&E,
not Comcast. Plaintiffs provide no evidence to the contrary. Instead, Plaintiffs argue that
Comcast effectively determines W&E technicians’ pay because, since April 1, 2009, Comcast
has only used contractors that are employee-based; and therefore technicians are entitled to
minimum wage and overtime pay. Specifically, Plaintiffs argue that Comcast plays a significant
role in determining how much W&E technicians are paid simply because it pays W&E on a per
service basis, itemizes how long work tasks should take, and associates point value and hourly
rates for each job. The Court rejects this argument. “An employee’s income, received from its
direct employer, will always be determined and influenced by what a contractor decides to pay
the direct employer for services rendered by the employee.” Jacobson, 740 F. Supp. 2d at 691
(internal quotation marks and citation omitted). Indeed, “[t]o find that this arrangement places
Comcast in control of Plaintiffs’ wages would dramatically expand the FLSA to subsume
traditional independent contractor relationships.” Id, (citing Herman v. Mid-Atlantic Installation

Servs. Inc., 164 F. Supp. 2d 667, 675 (D. Md. 2000)).

Fourth, Plaintiffs assert that Comcast maintains employment records for W&E
16