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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 0:22-CV-61553-DIMITROULEAS/HUNT

CRUZ VALDIVIESO FIGUERA,

Plaintiff,

vs.

ALL VIP CARE INC. AND LIZ 

VELAZQUEZ MCKINNON,

Defendants.

______________________________/

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff, Cruz Valdivieso Figuera, through undersigned counsel and pursuant to Fed. R. 

Civ. P. 56, requests that the Court enter partial summary judgment in her favor and against All 

VIP Care Inc., and Liz Velazquez McKinnon (collectively “All VIP” or “Defendants”). The facts 

cited in this motion are contained in Plaintiff’s Statement of Material Facts, cited as “[SMF ¶ ___]”, 

which has been filed separately.

I. INTRODUCTION

All VIP Care, Inc. (“All VIP”) identifies itself as a nurse registry. [SMF ¶ 1]. Cruz 

Valdivieso Figuera worked as a home health aide for All VIP. [SMF ¶ 2]. The Defendants 

considered Ms. Valdivieso an independent contractor and did not pay her overtime wages. [SMF 

¶ 3]. However, based on the undisputed facts presented below, All VIP treated Ms. Valdivieso as 

an “employee” under the Fair Labor Standards Act (FLSA). Therefore, Ms. Valdivieso moves this 

Court for partial summary judgment on the issue of her status as an employee of the Defendants. 

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The argument portion of this Motion for Partial Summary Judgment is divided into four 

sections. Section A explains that All VIP’s state law affirmative defense is preempted by federal 

law, and this Court must analyze Ms. Valdivieso’s employment status under the FLSA. Section B 

explains that Ms. Valdivieso is entitled to individual coverage under the FLSA because she 

participated in interstate commerce while working for All VIP. Section C comprises the heart of 

this motion by thoroughly examining the six-factor “economic reality” test used in the Eleventh 

Circuit, which conclusively establishes that Ms. Valdivieso was an employee. And Section D 

explains that the individual Defendant, Liz McKinnon, is individually liable as an “employer”

under the FLSA. [SMF ¶ 4].

II. ARGUMENTS

A. The Supremacy Clause Precludes Any Defense That All VIP Care, Inc. 

Could Not Employ Ms. Valdivieso Because it is a Nurse Registry Under 

Florida Law.

The Defendants’ First Affirmative Defense is that they properly classified Ms. Valdivieso as 

an independent contractor and they could not have employed her because All VIP Care Inc. is a 

nurse registry under Florida law. [ECF No. 37 at 5-7]. This “nurse registry” affirmative defense is 

preempted by federal law and cannot absolve All VIP from liability under the FLSA. 

When state and federal laws conflict, “federal law trumps state law; that was always clear.” 

Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008). The FLSA is 

a federal law. 29 U.S.C. §201, et. seq. Therefore, “in determining who are ‘employees’ under the 

Act, common law employee categories or employer-employee classifications under other statutes 

are not of controlling significance.” Walling v. Portland Terminal Co., 330 U.S. 148, 150 (1947). As 

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binding precedent, Walling precludes this Court (or even a jury) from considering whether All VIP

was in compliance with Florida law in classifying Ms. Valdivieso as an independent contractor. 

All VIP’s purported defense of following state law has been raised by at least one other 

nurse registry in Florida, and the argument was repudiated in federal court on the basis of 

preemption. The defendant in Solis v. A+ Nursetemps, Inc., 2013 WL 1395863, (M.D. Fla. Apr. 5, 

2013) was a licensed nurse registry under Florida law. Id. at *2. The District Court considered the 

same Florida statutes advanced by All VIP (in particular Fla. Stat. §400.506), and explained that 

“legal designations in other statutes do not affect the determination of a worker’s status under the 

FLSA. Thus, a worker may be an independent contractor under other laws or for purposes of 

contractual relationships, yet still meet the definition of an employee under the FLSA.” Id. at *4. 

The District Court relied on the “economic realities test” to determine whether a worker is an 

employee covered by the FLSA, and ultimately concluded that the plaintiff nurses were employees 

of the nurse registry. Id. at *5-7. This Court must similarly find All VIP’s first affirmative defense 

to be preempted by the FLSA, and analyze Ms. Valdivieso’s employment status under the 

“economic realities” standard discussed in Scantland v. Jeffrey Knight, Inc., 721 F.3d 1308 (11th Cir. 

2013).

B. Ms. Valdivieso is Entitled to Individual FLSA Coverage Under 29 

C.F.R. §552.99.

The text of the FLSA specifically states, “That Congress further finds that the employment 

of persons in domestic service in households affects commerce.” 29 U.S.C. §202. Thus, the plain 

language of the FLSA – and its interpretive guidance – confirm that home health aides like Ms. 

Valdivieso are entitled to individual FLSA coverage:

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The term domestic service employment means services of a household nature performed 

by an employee in or about a private home (permanent or temporary). The term includes 

services performed by employees such as companions, babysitters, cooks, waiters, butlers, 

valets, maids, housekeepers, nannies, nurses, janitors, laundresses, caretakers, handymen, 

gardeners, home health aides, personal care aides, and chauffeurs of automobiles for 

family use. [Emphasis added.]

29 C.F.R. §552.3; also see Torres v. Nature Coast Home Care LLC, 2016 WL 5870217, at *1 n.1 (M.D. 

Fla. Oct. 7, 2016) (“After January 1, 2015, the labor regulations were amended to the extent that 

all home health aides became eligible for overtime regardless of the amount of time they spent 

performing domestic services.”).

As a home health aide, Ms. Valdivieso was a domestic service employee per se because of 

the services she provided to Defendants’ clients. See 29 C.F.R. §552.3 and Torres, supra. All VIP 

provides medical and non-medical services to its clients, who are mainly 80 to 90 years old. [SMF 

¶¶ 5&6]. As a home health aide (HHA), Ms. Valdivieso’s work fell under the non-medical category, 

which includes personal care services such as bathing, dressing, transportation, meal preparation, 

homemaking, household duties, and companionship. [SMF ¶ 7].

The evidence establishes that Ms. Valdivieso performed the majority of the activities that 

qualify her as a HHA entitled to individual coverage under the FLSA. All VIP required its HHAs

to complete timesheets with a checklist of the activities they performed each shift. [SMF ¶¶ 9,10]. 

Ms. Valdivieso’s timesheets show that she engaged in activities such as assisting clients with 

dressing, shampooing hair, brushing teeth and dentures, assisting with toileting, meal preparation, 

changing bed linens, doctor’s appointments, going shopping, doing laundry, vacuuming and 

dusting, assisting with walking and transferring, assisting with self-administration of medications, 

and assistance with mail. [SMF ¶ 10]. Furthermore, a “patient calendar” shows Ms. Valdivieso

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provided personal care, homemaking, and companionship services to one of All VIP’s clients. 

[SMF ¶ 11].

Under similar facts, Courts regularly find that HHAs are entitled to individual coverage as 

domestic service employees. For example, in Romero v. Diaz-Fox, this Court determined that the 

plaintiff was a “domestic service employee engaged in commerce” and reasoned as follows:

Under the Department of Labor regulations governing domestic service, domestic service 

employees in households affect commerce because they (1) handle goods such as soaps, 

mops, detergents, and vacuum cleaners that have moved in or were produced for interstate 

commerce and (2) because they free members of the household to themselves engage in 

activities in interstate commerce.

Romero v. Diaz-Fox, 2021 WL 3619677, at *3 (S.D. Fla. Aug. 16, 2021); accord Mason v. Pathfinders for 

Indep., Inc., 2022 WL 1092238, at *6 (M.D. Fla. Apr. 12, 2022) (“Plaintiff's work as a caretaker 

required her to help consumers with activities such as housekeeping, grocery shopping, and money 

management. In carrying out such tasks, Plaintiff certainly used at least some goods ‘moved in or 

produced for’ interstate commerce and helped to ‘free members of the household’ to engage in 

activities in interstate commerce.”); Guevara v. Lafise Corp., 2022 WL 3975097, at *2 (S.D. Fla. Sept. 

1, 2022) (finding individual coverage applied to plaintiff under 29 C.F.R. §552.99 because he 

washed house windows, cleaned vehicles, and cleaned and shined boats, among other domestic 

service job responsibilities); accord Carmack v. Park Cities Healthcare, LLC, 321 F. Supp. 3d 689, 699 

(N.D. Tex. 2018) (plaintiff entitled to individual coverage when job duties included “dressing, 

grooming, feeding, bathing, toileting, and transfer to and from bed.”); see also Dixon v. Open Hands 

Nurseing Agency, LLC, , 2018 WL 5995127, at *6 (D.S.C. 2018) (plaintiff raised genuine issue of 

material fact in alleging that he qualified for individual coverage by opening interstate mail, 

handling and administering medications and medical supplies, manufactured in other states, and 

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making calls to insurance companies and vendors located out of state). As such, this Court properly 

determines that Ms. Valdivieso was entitled to individual FLSA coverage while working as a 

domestic service employee for Defendants based on the above facts and case law. 

C. Ms. Valdivieso was an Employee of All VIP.

Determination of employment status is a question of law for the court. Anterior v. D & S 

Farms, 88 F.3d 925, 929 (11th Cir. 1996); Brouwer v. Metro. Dade Cnty., 139 F.3d 817, 818 (11th Cir. 

1998) (citing Villarreal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997)). This Court properly 

determines that All VIP employed Ms. Valdivieso because the material facts are not in dispute.

The FLSA defines an “employee” as “any person acting directly or indirectly in the interest 

of an employer in relation to an employee” and “any individual employed by an employer.” 29 

U.S.C. §§203(d), 203(e)(1). The FLSA further defines “employ” as to “suffer or permit to work”. 

Id. at §293(g). Courts traditionally adopt a broad definition of “employee” to effectuate the FLSA’s 

remedial purpose. Robles v. RFJD Holding Co., Inc., 2013 WL 2422625, at *3 (S.D. Fla. 

2013)(Rosenbaum, J.)(citing Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 1976).) 

According to the Eleventh Circuit Court of Appeals, “[w]hether an individual falls within 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) (quoting Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir. 1973)). 

In Scantland, the Eleventh Circuit Court of Appeals articulated the following six factors to 

be considered under the “economic realities test” in analyzing whether a worker is an employee or 

an independent contractor:

(1) the nature and degree of the alleged employer’s control as to the manner in which 

the work is to be performed;

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(2) the alleged employee’s opportunity for profit or loss depending upon his 

managerial skill; 

(3) the alleged employee’s investment in equipment or materials required for his task, 

or his employment of workers;

(4) whether the service rendered requires a special skill;

(5) the degree of permanency and duration of the working relationship;

(6) the extent to which the service rendered is an integral part of the alleged 

employer’s business.

721 F.3d. at 1311-12. The Eleventh Circuit concluded this discussion by pointing out that “the 

overarching focus of the inquiry is economic dependence.” Id. “Ultimately, in considering 

economic dependence, the court focuses on whether an individual is ‘in business for himself’ or is 

‘dependent upon finding employment in the business of others.’ Id. (quoting Mednick v. Albert Enters., 

Inc., 508 F.2d 297, 301–02 (5th Cir.1975)). 

It is dependence that indicates employee status. Each test must be applied with that ultimate 

notion in mind. More importantly, the final and determinative question must be whether 

the total of the testing establishes the personnel are so dependent upon the business with 

which they are connected that they come within the protection of FLSA or are sufficiently 

independent to lie outside its ambit.

Usery, 527 F.2d at 1311-12. The evidence establishes that All VIP misclassified Ms. Valdivieso as 

an independent contractor under this framework. Ms. Valdivieso relied exclusively on All VIP for 

her livelihood, it controlled significant aspects of her work, and, therefore, Ms. Valdivieso was not 

in business for herself. Federal courts routinely determine that caregivers in similar roles as Ms. 

Valdivieso are employees due to the restrictive nature of the work they perform for agencies in the 

same line of work as All VIP. See Mason v. Pathfinders for Indep., Inc., 2022 WL 1092238 (M.D. Fla. 

Apr. 12, 2022) (finding live-in companion to be employee of home care agency under Scantland’s 

economic realities test); Hughes v. Fam. Life Care, Inc., 117 F. Supp. 3d 1365 (N.D. Fla. 2015) (finding 

certified nursing assistant to be an employee of nurse registry under Scantland); Chapman v. A.S.U.I. 

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Healthcare & Dev. Ctr., 562 F. App'x 182 (5th Cir. 2014) (caregivers in group home found to be 

employees under economic reality test used in Fifth Circuit). 

(1) All VIP controlled Ms. Valdivieso in her work.

In Scantland, supra, the Eleventh Circuit Court of Appeals determined that a group of cable 

technicians were misclassified as independent contractors. When analyzing this first factor in the 

economic realities test, the court found the employer “controlled what jobs plaintiffs did, how much 

they were paid, how many hours they worked, how many days they worked, their daily work 

schedule, whether they could work for others, whether they could earn additional income from 

customers, and closely monitored the quality of their work.” Id. at 1315. Specifically, the 

technicians would receive a “route” that detailed their work assignments for the day, they could 

not sell their own services, they could be disciplined for not adhering to company policies, and they 

had to inform their supervisors in advance of taking time off. Id. at 1314-15. Additionally, the 

technicians could not subcontract their work to any technicians that did not work for the employer. 

Id. at 1314. 

All VIP controlled the nature and degree of Ms. Valdivieso’s work in the same manner as 

the employer in Scantland. Just like the “route” detailing the cable technicians’ work assignments, 

All VIP told Ms. Valdivieso which days and hours she had to work by assigning her shifts on a 

“patient calendar.” [SMF ¶ 11]. All VIP administrator Diana Ramirez coordinated a schedule 

according to clients’ preferences, and then assigned caregivers to work that schedule on a rolling 

basis. [SMF ¶ 12]. Furthermore, All VIP’s contract states, “I acknowledge that I will provide 

services to clients exactly as they are assigned.” [SMF ¶ 13]. As mentioned in Section B above, All 

VIP required Ms. Valdivieso to submit a weekly timesheet reflecting the hours she worked. [SMF

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¶ 9]. The timesheet identified the tasks that Ms. Valdivieso was to perform and All VIP required 

that Ms. Valdivieso identify the tasks she performed each shift with their clients. [SMF ¶ 10]. The 

timesheets were also used to determine how much money All VIP would pay Ms. Valdivieso, which 

indicates her status as an hourly employee.1 [SMF ¶ 14].

Aside from controlling when and where Ms. Valdivieso would service its clients, All VIP 

also controlled how Ms. Valdivieso serviced its clients. All VIP receives a “care plan” from insurance 

companies that defines the scope of services provided to each client. [SMF ¶ 19]. While caregivers 

can theoretically modify the care plan, All VIP does not allow its caregivers to do so per its contract.

[SMF ¶ 19]. As a result, Ms. Valdivieso’s ability to provide health care services was limited to the 

scope of services provided by All VIP. 

All VIP totally constrained the manner in which Ms. Valdvieso performed services for its 

clients and levied consequences if its policies were not followed. The independent contractor 

agreement contains a “Statement of Commitment”, which is a list of dos, don’ts, and punishments 

the caregivers must abide by. [SMF ¶ 17]. Among other things, Ms. Valdivieso was required to

wear identification during assignment; was required to notify the nurse registry if she could not 

make an assignment and the failure to do so was grounds for termination; she was required to 

complete and submit all documentation per All VIP policy or her pay could be withheld; she could 

not make or accept personal phone calls at a client’s home, nor could she accept money or gifts 

from the clients. [SMF ¶ 17]. Ms. Ramirez emphasized that caregivers have to be “well-dressed

1 Solis v. A+ Nursetemps, Inc., supra, decided a few months before Scantland, found health care workers of a nurse registry 

were employees entitled to overtime after analyzing various economic reality factors established in Eleventh Circuit 

decisions. One of the factors was whether time records were maintained, which the Solis court weighed in favor of 

employee status because “[w]hile the nurses keep their own time records, they are paid by the hour, and such records 

are turned in to and maintained by Nursetemps ... for the purpose of calculating the nurses' pay. Stated another way, 

the nurses are not paid a flat rate or piece rate per shift. They are hourly employees.” Id. at *6.

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with closed-toe shoes and be there on time”, and that communicating emergency absences was 

“very, very important with All VIP Care.” [SMF ¶ 22]. Ms. Valdivieso also could not sub-contract 

her services for All VIP’s clients to another home health aide of her choice, even if the substitute 

worker was an All VIP caregiver. [SMF ¶ 18].

In analyzing this “control” factor, the Scantland court found in favor of employee status 

because the technicians had to inform their supervisors when they would be taking time off and 

they could be fired for violating company policies. Scantland at 1314-15. The Scantland court also 

found that the cable technicians were employees under the control factor because although they 

could use other technicians to help them do work, they could only rely on helpers already engaged 

by the company. Id. In this case, Ms. Valdivieso could not even unilaterally solicit help from other 

All VIP home health aides, or enlist the help of aides who were not pre-approved by All VIP, which 

is a more rigid requirement than the employer’s policies in Scantland. 

The above analysis demonstrates that All VIP controlled Ms. Valdivieso’s work to such an 

extent that she did not operate as a separate economic entity. It does not matter that Ms. Valdivieso 

had the ability to reject a client offered by All VIP [SMF ¶ 20] because All VIP still controlled her 

work once she agreed to service a client. See Hughes v. Fam. Life Care, Inc. at 1370-71 (certified nursing 

assistant found to be controlled by nurse registry under first Scantland factor although plaintiff could 

refuse the work offered without consequence). 

(2) Ms. Valdivieso had no opportunity for loss and could not increase her income by managing herself

or her schedule.

The second factor considers the alleged employee's opportunity for profit or loss depending 

upon her managerial skill. Scantland, 721 F.3d at 1316. The relevant inquiry is whether Ms. 

Valdiveiso’s opportunity for profit or loss depended more on All VIP’s work orders and her 

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technical skill rather than her own managerial skill. Hughes v. Fam. Life Care, Inc., 117 F. Supp. 3d 

at 1371. 

All VIP paid Ms. Valdivieso $13 an hour for her shift work. [SMF ¶ 21]. Ms. Valdivieso 

could not schedule herself to be more proficient since she could only assist one patient at a time 

and could only be in one location at a time per the patient calendar All VIP disseminated. [SMF 

¶12]. These facts indicate that Ms. Valdivieso was All VIP’s employee since she had “no 

opportunity for additional income or profit through the exercise of managerial skill or increased 

efficiency in the manner or means of accomplishing the work.” Solis, 2013 WL 1395863 at *7

(nurses paid by the hour had no opportunity for profit or loss through the exercise of their 

managerial skill); see also Hughes, 117 F. Supp. 3d at 1371 (finding a certified nursing assistant had 

no opportunity for profit or loss because she was paid hourly). 

Ms. Valdiveiso also could not utilize her labor to earn additional income from All VIP’s 

clients like the cable technicians. Scantland at 1314 (“Plaintiffs could not sell non-BHN services to 

customers and could not work for other companies, either because they were told they could not 

do so or because the schedule Knight imposed prevented them from doing so.”). All VIP’s contract 

contains a non-compete clause that prohibits caregivers from attempting to arrange direct services 

with the employers’ clients. [SMF ¶ 15]. Ms. McKinnon and Ms. Ramirez explicitly stated that 

caregivers could not work “private” hours; meaning they could not service clients at any time that 

was not scheduled by All VIP. [SMF ¶ 16]. The above facts demonstrate that Ms. Valdivieso could 

not use any managerial skills to earn more money, and therefore she was not operating her own 

business. 

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(3) Ms. Valdivieso made no appreciable investment to work for All VIP.

The third factor considers the alleged employee's investment in equipment or materials 

required for her task, or her employment of workers. Scantland at 1317. “This factor contemplates 

whether the alleged employee's work-related expenditures detracted from her economic 

dependence on the alleged employer.” Mason, 2022 WL 1092238, at *4. 

All VIP did not provide Ms. Valdivieso with any equipment to service their clients. [SMF 

¶ 23]. Instead, Ms. Valdivieso had to buy her own scrubs and personal protective equipment, such 

as gloves and masks. Id. On the other hand, All VIP contracts with Medicaid or directly with its 

clients to provide services, and All VIP maintains several local offices with personnel staff 

throughout Florida. [SMF ¶¶ 24, 25]. Also, as mentioned above under the “control” factor, All 

VIP prevented Ms. Valdivieso from subcontracting her services to other workers. [SMF ¶ 18].

This factor weighs in favor of employee status because Ms. Valdivieso’s work-related 

expenditures did not detract from her economic dependence on All VIP. The equipment she 

purchased (gloves, masks, and scrubs) are not expensive and can generally be re-used or purchased 

in bulk such that they are not continuing expenses. In comparison, Ms. Valdivieso had to rely on 

All VIP’s office infrastructure to provide her with clients, schedules to work, and submit timesheets 

in order to be paid. See Chapman, 562 F. App'x at 185 (finding caregivers to be employees of 

healthcare provider under Fifth Circuit economic reality test because, inter alia, the “plaintiffs' only 

investment in the business was the purchase of their uniforms. ASUI, on the other hand, contracted 

with the state to provide the services; operated a dayhab facility for the clients' day time use; and 

maintained a central office headquarters.”).

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(4) Working as a Home Health Aide is not a “special skill.”

The fourth factor considers whether the service rendered requires a special skill. Scantland

at 1318. “A lack of specialization indicates that an individual is an employee, not an independent 

contractor.... Finally, even if an individual has specialized skills, that is not indicative of 

independent contractor status where the individual does not use those skills in an independent 

fashion.” Molina v. S. Fla. Exp. Bankserv, Inc., 420 F. Supp. 2d 1276, 1286 (M.D. Fla. 2006) (internal 

citations and quotations omitted). 

Although Ms. Valdivieso is a licensed HHA [SMF ¶ 26], she only provided domestic

services to All VIP’s clients such as personal care, homemaking, and companionship. [SMF ¶¶ 7-

11]. These are not specialized skills as anybody could perform them, and Ms. Valdivieso did not 

use those skills in an independent fashion because her work was proscribed by the myriad of policies 

articulated in All VIP’s “Statement of Commitment”. [SMF ¶ 17]. In fact, All VIP implicitly 

acknowledged that the work done by HHAs falls under the unskilled category of non-medical 

services. [SMF ¶ 6]. Therefore, this factor favors employment status. 

(5) Ms. Valdivieso worked for All VIP for over a year, indicating permanence. 

The fifth factor considers the degree of permanency and duration of the working 

relationship. Scantland at 1318. Courts generally find in favor of employee status when the 

employment contract is for automatically renewing periods of time. See Scantland at 1318 (cable 

technicians’ contracts were for year terms, automatically renewed, and were terminable only with 

thirty days’ notice); also see Solis, 2013 WL 1395863, at *7 (majority of nurses accepted work 

assignments on a regular basis for a year or more); Hughes, 117 F. Supp. 3d at 1373 (employment 

contract renews automatically on a monthly basis and certified nursing assistant regularly accepted 

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assignments). 

Ms. Valdivieso worked for All VIP from May 3, 2021 until July of 2022. [SMF ¶ 27].

During that time, she regularly accepted assignments from All VIP to provide care to their clients. 

[SMF ¶ 28]. All VIP’s independent contractor agreement explicitly stated that her work was to be 

provided in successive one (1) year terms. [SMF ¶ 29]. Indeed, her employment automatically 

renewed on May 3, 2022. Ms. Valdivieso’s employment ended because All VIP failed to properly 

pay her and she was forced to stop working for them. [SMF ¶ 27]. Therefore, the working 

relationship with All VIP indicates permanence under this factor, and the duration was only limited 

to a little more than one year because she was not timely paid for her services, which is the subject 

of the breach of contract claim at Count III of her Complaint. [ECF No. 2 at 7]. This factor also 

favors employment status. 

(6) Ms. Valdivieso was an integral and indispensable part of All VIP’s business.

This factor considers the extent to which the service rendered is an integral part of the 

alleged employer's business. Scantland at 1319. In Scantland, the Eleventh Circuit Court of Appeals 

found the work performed by the cable technicians comprised the majority of the defendant’s 

business, and the company treated them as employees to maintain quality control. Id. Therefore, 

the technicians’ integral role in the company was considered the “usual path of an employee.” Id.

In the home health care context, courts routinely find this factor strongly favors employee status 

because caregivers comprise the entirety of the employer’s business. Solis, 2013 WL 1395863, at *7

(“The work performed by the nurses is more than an integral part of Nursetemps' business, it is the 

whole of Nursetemps' business.”); Hughes, 117 F. Supp. 3d at 1373 (defendant in the business of 

home health care and certified nursing assistants were the whole of the business); Mason, 2022 WL 

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1092238, at *5 (“As a home healthcare company, Defendants cannot reasonably dispute that 

Plaintiff's services as a support living coach and personal support staff member were integral parts 

of Defendants’ business. Ms. Brown acknowledged that workers in those positions provide the 

primary service offered by Pathfinders.”).

All VIP styles itself as an elderly home health care service. [SMF ¶30]. The entirety of All 

VIP’s business is to provide medical and non-medical services to elderly clients. [SMF ¶¶ 5, 6]. 

Those services are provided by nurses, certified nursing assistants, and home health aides. [SMF ¶ 

6]. As a home health aide, Ms. Valdivieso participated in performing the work that comprises the

most integral part of All VIP’s business - in the same manner as the caregivers in Solis, Hughes, and 

Mason. As such, this factor also demonstrates that Ms. Valdivieso was an employee of All VIP. 

D. Defendant, Liz Velazquez McKinnon, Is Liable to Ms. Valdivieso as an 

“Employer” Under the FLSA.

The FLSA creates a private right of action against any employer who violates its minimumwage or overtime provisions. 29 U.S.C. § 216(b); Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 

1299, 1309 (11th Cir. 2013). Therefore, a plaintiff may sue an individual employer or multiple 

employers because the FLSA contemplates that several simultaneous employers may be

responsible for compliance with its provisions. Kendrick v. Eagle Int'l Grp., LLC, 2009 WL 3855227, 

at *3 (S.D. Fla. Nov. 17, 2009). “The overwhelming weight of authority is that a corporate officer 

with operational control of a corporation’s covered enterprise is an employer along with the 

corporation, jointly and severally liable under the FLSA for unpaid wages.” Patel v. Wargo, 803 F.2d 

632, 637–38 (11th Cir. 1986) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983)).

“Federal courts look to the economic reality of the relationship between the parties in order 

to determine whether an individual FLSA defendant is an ‘employer’ subject to FLSA liability.” 

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Mendoza v. Disc. C.V. Joint Rack & Pinion Rebuilding, Inc., 101 F. Supp. 3d 1282, 1290 (S.D. Fla. 2015)

(finding sole owner and president individually liable). In the Eleventh Circuit, a separate four-factor 

economic reality test is used to determine liability by evaluating whether the individual: (1) had the 

power to hire and fire employees; (2) supervised and controlled employee work schedules or 

conditions of employment; (3) determined the rate and method of payment; and (4) maintained 

employment records.

2 Id. This test looks at the totality of the circumstances, so no single factor is 

dispositive and any relevant evidence may be examined on the issue of individual liability. Id.

As a matter of economic reality, the individual defendant in Mendoza was found liable for 

FLSA violations because he was the sole owner and president of the corporation, signed checks on 

its behalf, had authority over day-to-day operations, maintained financial control over the 

corporation, hired and fired employees, controlled hours of operation, and negotiated employee 

pay. Id.

Ms. McKinnon is individually liable under the economic realities test for conducting the 

same activities as the Mendoza defendant and more. For starters, Ms. McKinnon has been the only

owner of All VIP since its inception in 2016. [SMF ¶4]. She is the corporation’s CEO, and is 

responsible for oversight and administration of all payroll obligations. [SMF ¶37]. She is also 

responsible for filing taxes on behalf of the corporation. [SMF ¶38]. All VIP has several offices 

throughout Florida, and each office is required to have a licensed administrator. [SMF ¶25]. Ms. 

2 There is some authority that an alternate “disjunctive rule” to determine individual liability exists in the Eleventh 

Circuit. The disjunctive rule refers to the test articulated in Patel that requires an examination of whether an individual 

was “involved in the day-to-day operation of the company” or had “some direct responsibility for the supervision of 

the employee” to be found personally liable. 803 F.2d at 638. See Santos v. Cuba Tropical, Inc., 829 F. Supp. 2d 1304, 

1311 (S.D. Fla. 2011) for a thorough explanation of the disjunctive rule and the “alternative test”. While Mendoza, 

supra, states the four-factor economic-reality test is the Eleventh Circuit standard, Moreira v. Americlean Bldg. Maint., Inc., 

2016 WL 739657 (S.D. Fla. Feb. 25, 2016) recognizes the disjunctive rule as the test in the Eleventh Circuit. However, 

Liz McKinnon is individually liable under either test as the undisputed facts in this section demonstrate. 

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McKinnon has been the licensed administrator of All VIP’s Palm Beach County office since 2016. 

[SMF ¶31]. As the administrator, she is responsible for making sure the office meets state and 

federal guidelines. [SMF ¶31]. An administrator is also responsible for visiting clients, monitoring 

services provided by caregivers, and handling problems that occur in the office. [SMF ¶32]. Ms. 

McKinnon considers herself an employee of All VIP because she runs the office. [SMF ¶31]. She

is also one of the care coordinators at the Palm Beach office; care coordinators are responsible for 

assigning caregivers to All VIP’s clients. [SMF ¶33]. Therefore, Ms. McKinnon serves in two of 

the Palm Beach office’s five positions with her dual roles as administrator and care coordinator. 

[SMF ¶34]. Ms. McKinnon participates in the process of hiring caregivers. In her deposition, Ms. 

McKinnon explained that she fills out parts of the employment contract related to the rate of pay 

that caregivers will receive when they are hired. [SMF ¶39]. Aside from her management of the 

Palm Beach office, Ms. McKinnon is also the direct supervisor of Diana Ramirez, the Broward 

County office administrator. [SMF ¶35]. While she does not micromanage Ms. Ramirez’s hiring 

decisions, Ms. McKinnon does conduct audits of other offices to make sure All VIP is hiring 

caregivers with proper credentials. [SMF ¶35]. In fact, McKinnon is so involved in the day-to-day 

operations of the corporation that she monitors its Google reviews and periodically responds to 

posts by All VIP’s clients. [SMF ¶36]. Ms. McKinnon stated that she monitors the Google reviews 

to make sure that her staff is “doing their jobs”. [SMF ¶36].

Ms. McKinnon also had personal interaction with Ms. Valdivieso. At one point during her 

employment, Ms. Valdivieso visited the Palm Beach office to complain about not being paid 

properly and Ms. McKinnon wrote her a check to address the situation. [SMF ¶40]. Finally, Ms. 

McKinnon and Ms. Ramirez made the joint decision to terminate Ms. Valdivieso’s employment. 

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135 San Lorenzo Avenue, Suite 770, Coral Gables, FL 33146

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[SMF ¶41].

The undisputed facts demonstrate that Ms. McKinnon is a corporate officer with 

operational control over All VIP. Viewed within the context of the economic reality of her 

relationship with the corporation, Ms. McKinnon is no different from the individual defendant in 

Mendoza, supra. Ms. McKinnon is similarly liable under Patel’s disjunctive test as she is clearly 

involved in the day-to-day operations of All VIP. Therefore, she must be held personally liable 

along with All VIP as an employer who violated the FLSA in regards to Ms. Valdivieso. 

III. CONCLUSION

This Court must grant Ms. Valdivieso’s motion for partial summary judgment and find 

that she was an employee of All VIP, the corporate Defendant, and Liz McKinnon, the individual 

Defendant. All VIP’s claim that it had to classify Ms. Valdivieso as an independent contractor 

under Florida law is preempted by the FLSA. An analysis of the undisputed facts - the majority of 

which evidence was provided by the Defendants through exhibits and depositions - shows that Ms. 

Valdivieso is entitled to individual coverage under the FLSA, that ALL VIP employed her under 

the Eleventh Circuit’s six-factor economic realities test, and that Liz McKinnon is individually

liable under any test used in this Circuit. 

[Certificate of Service on following page]

Case 0:22-cv-61553-WPD Document 61 Entered on FLSD Docket 07/18/2023 Page 18 of 19
135 San Lorenzo Avenue, Suite 770, Coral Gables, FL 33146

TEL 305.230.4884 FAX 305.230.4844

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served 

electronically on July 18, 2023 with the Clerk of Court using the CM/ECF filing system.

s/Toussaint Cummings, Esq.

Toussaint Cummings, Esq. (119877)

toussaint@fairlawattorney.com

Brian H. Pollock, Esq. (174742)

brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: 305.230.4884

Counsel for Plaintiff

Case 0:22-cv-61553-WPD Document 61 Entered on FLSD Docket 07/18/2023 Page 19 of 19