UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ FRANKLIN MERRILL; ANTHONY GLOVER; KEITH HERRING; ANTHONY DENNIS; LARRY JURCAK; SAMI NASR; RONALD DENNIS; RODNEY LACY; JAMES NEWBERRY; TAMI POTIRALA; CRAIG WILLIAMS; ZIGMUND GUTOWSKI; JOSEPH HORION; ERIC ARD; TIM HOLLINGSWORTH, Plaintiff Counter Defendants - Appellants,

v. MATTHEW HARRIS, Defendants - Appellee, and PATHWAY LEASING LLC, a Colorado limited liability company, Defendant Counterclaimant - Appellee, and
XPO LOGISTICS TRUC KLOAD, INC., a Missouri corporation registered to conduct business in Colorado; TRANSFORCE, INC., a Canadian corporation; CON-WAY TRUCKLOAD, INC., a Missouri corporation registered to conduct business in Colorado, Defendants. No. 21-1295 (D.C. No. 1:16- CV-02242-KLM) (D. Colo.) FILED United States Court of Appeals Tenth Circuit 

### August 26, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 12 ________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, CARSON , and ROSSMAN , Circuit Judges.

________________ _________________ This appeal involves the Fair Labor Standards Act (“FLSA”), which requires employers to pay their employees a minimum wage. See 29 U.S.C. §§ 215(a)(2), 216(b). Plaintiffs are long-haul commercial truck drivers. They leased trucks from Defendants Pathway Leasing LLC and its President, Matth ew Harris, (collectively “Pathway” or “Defendants”) and then used those trucks to haul freight for carrier companies, including XPO Logistics Truc kload, Inc.; CFI, Inc.; and Con-Way Truckload, Inc. (collectively “XPO”). 1 Plaintiffs sued Pathway and XPO under the FLSA in federal district court in Colorado, alleging the two entities were joint employers who intentionally misclassified them as independe nt contractors and unlawfully denied them the statutorily requi red minimum wage. Plaintiffs voluntarily dismissed XPO from this action before trial, but their FLSA claims proceeded against Pathway.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32.1.

1 XPO Logistics Truckload, Inc.; CFI, In c.; and Con-Way Truc kload, Inc. refer to the same entity. See, e.g. , R. vol. 2 at 1232 n.4. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 23 After a multi-day bench trial, the distri ct court entered judgment for Pathway on Plaintiffs’ FLSA claims. 2 The district court conclude d Plaintiffs were correctly classified as independent contractors—regardless of whether Pathway alone was considered Plaintiffs’ employer or XPO and Pathway were joint employers. Plaintiffs timely appealed, challenging the district court’s classificati on decision and the manner in which it was determined. Exerci sing jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
I. The pretrial proceedings Plaintiffs’ operative complain t, filed in February 2017, alleged five claims for relief against Pathway and XPO, but only Plaintiffs’ FLSA mi nimum wage claims against Pathway are at issue in this appeal. 3 Plaintiffs claimed th ey leased trucks from Pathway “believing they coul d operate those trucks as independent contractors and improve their lives through the exercise of en trepreneurial spirit.” R. vol. 1 at 63. But in reality, Pathway allegedly “contro lled every aspect” of their work, id. , structured a

2 All parties consented to the jurisdiction of a United States Magistrate Judge under 28 U.S.C. § 636(c). We wi ll refer to the magistrate j udge as the “district court” in our analysis.

3 The claims alleged were: “Failure to Pay [the] Minimum Wage in Violation of the FLSA” against Pathway and XP O; “Recission or Voiding of Lease Agreements, Warranties or Promissory No tes, and Restitution” against Pathway; “Unjust Enrichment and Restitution” agai nst Pathway; “Quantum Meruit” against Pathway; and “Unlawful Retaliation” in vi olation of the FLSA against Pathway and XPO. R. vol. 1 at 81-85. The district c ourt entered judgment in Pathway’s favor on these claims at trial. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 34 joint employment relationship with XPO “to avoid the expense of retaining employees,” and willfully misclassified them as independent contractors, id. at 75. The district court conditionally certified Pl aintiffs’ FLSA collective action in June
2017. 4 A few months later, Plaintiffs vol untarily dismissed XPO from the case. Plaintiffs then moved fo r partial summary judgment , contending Pathway and XPO were joint employers under th e Fourth Circuit’s test in Hall v. DIRECTV, LLC , 846 F.3d 757 (4th Cir. 2017), and Salinas v. Commercial Interiors, Inc ., 848 F.3d 125 (4th Cir. 2017) (“ Hall-Salinas ”). The Hall-Salinas framework articulates six factors “[t]o assist lower courts in dete rmining whether the relationship between two entities gives rise to joint employment.” Hall , 846 F.3d at 769. 5 Pathway opposed

4 A collective action is a suit brought under the FLSA by “any one or more employees for and in behalf of himself or themselves and othe r employees similarly situated.” 29 U.S.C. § 216(b); see also Castaneda v. JBS USA, LLC , 819 F.3d 1237, 1245 (10th Cir. 2016), as amended on denial of reh’g and reh’g en banc (May 3, 2016) (“In an FLSA collective action an aggrieved employee can bring a claim against an employer on behalf of himself ‘and other employees similarly situated.’”) (quoting § 216(b)).

5 These six non-exhaus tive factors include: (1) “Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the ability to direct, control, or supervise the worker, whether by direct or indirect means;” (2) “Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to—directly or indirectly—hire or fire the worker or modify the terms or c onditions of the worker’s employment;” (3) “The degree of permanency and dur ation of the relationship between the putative joint employers;” (4) “Whether through shared management or a direct or i ndirect ownership interest, one putative joint employer cont rols, is controlled by, or is under common control with the other putative joint employer;” Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 45 summary judgment, agreeing that whether two entities are joint employers for FLSA liability is a legal ques tion but disagreeing that Hall-Salinas should answer it. Pathway advocated for application of the “economic rea lities” test in Baker v. Flint Engineering & Construction Co ., 137 F.3d 1436 (10th Cir. 1998), which examines “whether the individual is economically dependent on the business to which he renders service . . . or is, as a matter of economic fact, in business for himself.” 137 F.3d at 1440 (alteration in original) (quot ation omitted). Regardless of the test applied, Pathway argued, there was no jo int employment relationship between it and XPO. Pathway also filed a cross-motion fo r summary judgment contending Plaintiffs were correctly classified as inde pendent contractors under the FLSA. The district court denied the cross-mo tions for summary judgment. The court agreed with the parties that joint employment was a “thres hold question in this case.” R. vol. 2 at 753 (quotations omitted). If a “fact-finder [determined] that [Pathway] and XPO were joint employers,” the district court explained, th en evidence “bearing on the relationship between [those two entitie s] on the one hand a nd Plaintiffs on the other may be examined to determine whethe r Plaintiffs were i ndependent contractors or employees.” Id. at 768 (emphasis omitted).

(5) “Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another;” and (6) “Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll; providing workers’ compensation insurance; paying payroll taxe s; or providing the facilitie s, equipment, tools, or materials necessary to complete the work.” Hall , 846 F.3d at 769-70. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 56 The district court observe d “the Tenth Circuit Cour t of Appeals has not yet articulated the appropriate test to use in making [the joint employment] determination in the FLSA context.” Id. at 753. In the “absence of binding precedent in this Circuit,” id. , the district court “agree[d] with Plai ntiffs . . . that th e test enunciated by the Fourth Circuit in Hall and Salinas is appropriate and s hould be used here,” id. at 758. The court ultimately found disputed issu es of material fact precluded resolving the joint employment issue on summary judgment. Id. at 765. In considering Pathway’s cross motion, th e district court analyzed Plaintiffs’ employment classification under Baker “as though a joint empl oyer relationship ha[d] been established” between Pathway and XPO. Id. at 768. Assuming a joint employment relationship between Pathway a nd XPO, the district court reasoned, “[was] most favorable to Plaint iffs as the nonmoving party.” Id. The court examined “all of the evidence bearing on the rela tionship between [Pathway] and XPO,” id. , in analyzing Plaintiffs’ employment classi fication but, given conflicting evidence, determined the classification issue also could not be determined on summary judgment, id. at 772.
II. The bench trial The case proceeded to a six-day bench trial in June 2018. 6 Plaintiffs called eighteen witnesses, including all named Plai ntiffs. Mr. Harris, Pa thway’s president,

6 Although Plaintiffs’ othe r claims proceeded to trial, our summary of the proceedings focuses only on th e record relevant to Plaintiffs’ FLSA minimum wage claims. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 67 testified for Pathway. To prevail on their FLSA claims, Plaintiffs needed to prove they were employees of Pathway and misc lassified as indepe ndent contractors. Plaintiffs proceeded on a theory of jo int employment, offering testimony that Pathway and XPO collectivel y exercised control over th eir work. Pathway defended against the notion that it wa s a joint employer with XP O. For example, Mr. Harris testified XPO was not involved in Pathwa y’s formation and that XPO and Pathway did not share office space, bank acc ounts, or any joint policies. See R. vol. 3 at 864, 883. According to Mr. Harris, Pathway was not involved in telling Plaintiffs what type of freight they could haul, what routes to drive when hauli ng freight, or when to take rest breaks or time off. See id. at 917-19. Though Pathway and XPO had executed a carrier agr eement, Mr. Harris testified Pa thway had also entered into agreements with other carriers. See id. at 982. The district court acknowledged the parties submitted a “lot of evidence” about the relationship be tween Pathway and XPO, id. at 1107, and described the joint-employment questi on as a “close call,” id. at 1099. At the conclusion of the bench trial, the district court had yet to decide whether Pathway and XPO were joint employers. After trial, the district court determined “Plaintiffs were independent contractors, regardless of whether Defendant Pathway [was] considered independently as an employer or whet her XPO and Defendant Pathway [were] considered collectively as join t employers.” R. vol. 2 at 1253. 7

7 Pathway filed a post-trial motion to d ecertify Plaintiffs’ collective action. The district court granted Pathway’s motion, dismissing the thirty opt-in Plaintiffs’ Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 78 III. The district court’s pos t-trial findings of fact and conclusions of law The district court first described th e trial evidence presented about the commercial trucking industry. In general, commercial long- haul truckers could work as company drivers for a commercial frei ght company or become owner-operators. Owner-operators lease or own their own truc ks and sell their hau ling services to the companies with whom they c ontract “as [they] desire[].” R. vol. 2 at 1231. Company drivers work for a specific company and are bound by its polices about when and how to haul freight. The district court found Plaintiffs were owner-operators who leased trucks from Pathway. To lease a truck, each Pl aintiff signed Pathway’s “Equipment Lease Agreement.” Plaintiffs could execute single- person or team leases. The terms of these fixed lease agreements stated Plaintiffs were responsible for “truck payments, maintenance and repairs, fuel costs, busin ess liability insurance,” and paying their own “business-related taxes.” Id. at 1245. The district court acknowledged Pathway and XPO had entered into a “Carrier Agreement.” The Carrier Agreement genera lly provided that Pathway would make a lease financing program available to XPO’ s owner-operators, XPO would “[a]ssist in closing the lease financ ing arrangement between Pathway and the [owneroperators],” and Pathway would lease trucks to XPO’s owner-operators. See Supp.

FLSA minimum wage claims. The remaining Plaintiffs decided not to move for a new trial. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 89 App. at 73-74. Either entity could term inate the Carrier Agreement with 120 days’ notice. XPO offered Plaintiffs a two-year freight-hauling contract, called a “Contractor Hauling Agreement.” XPO required Plaintiffs to secure a lease or own a truck before they could execute a Contract or Hauling Agreement. The contract terms permitted either party to term inate the Contractor Hauli ng Agreement with ten days’ notice. Plaintiffs could drive th eir trucks individually or hire other drivers to assist in hauling freight for XPO. Several Plaintiffs drove in teams. Th e Contractor Hauling Agreement required Plaintiffs to supervise anyone they hired. The district court further found Plaintiffs , as owner-operators , were not subject to the many restrictions XPO imposed on its company drivers. For example, Plaintiffs did not have to comply with “forced disp atch.” “Forced dispatch” required company drivers to haul loads at XPO’s direction, except in limited ci rcumstances, such as when they were ill. R. vol. 2 at 1240. As owner-opera tors, Plaintiffs could decline loads for reasons besides illn ess—including if it would not be profitable for them to haul a particular load. When Plaintiffs a ccepted a load, they we re exposed personally to the risk of monetary lo ss if the fuel cost exceeded what XPO paid them to transport the load. Plaintiffs did not need to request or receive permission from XPO—or Pathway—to choose where to drive or which r outes to take to their destination. XPO did not require Plaintiffs, unlike its co mpany drivers, to adhere to fueling requirements or abide by XPO’s “driver ha ndbook.” As owner-ope rators, Plaintiffs Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 910 set their own schedules. And XPO paid its owner-operators an incentive bonus to drive more miles each month. The distri ct court concluded that, despite these differences, “[m]any of the work duties perfo rmed by owner-operators were the same as those performed by company dr ivers.” R. vol. 2 at 1235. At times, Plaintiffs needed to maintain or repair the trucks they leased from Pathway. To cover repair costs Plaintiffs could not otherwise afford, Pathway offered Plaintiffs loans, documented by promissory notes. Some Plaintif fs received little “take-home pay” from XPO after making pa yments on their notes to Pathway. Id. at 1251. Seven Plaintiffs ultimately completed th eir leases and purchased trucks from Pathway. Some Plaintiffs also estab lished their own trucking companies. Once drivers completed their leases with Pathwa y, they had no further interaction with Pathway unless they leased another truck. Plaintiffs who comp leted their Pathway leases often continued to drive for XPO. After making these factual findings, the district court addressed the ultimate question—whether Plaintiffs were misclassif ied as independent c ontractors under the FLSA. The district court c onsidered each of the six Baker factors and found five favored independent contract or status while one was ne utral. The district court concluded Plaintiffs were independent contractors, not employees, regardless of whether XPO and Pathway were considered collectively as joint employers. After “[c]onsidering the totality of the circumst ances,” the district court determined, “Plaintiffs were ‘in business for [themselves]’” and ther efore “preclude[d] . . . from Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1011 coverage under the FLSA.” R. vol. 2 at 1259-60 (second alternation in original) (quotation omitted). The district court entered judgment in Pathway’s favor on Plaintiffs’ FLSA minimum wage claims. This timely appeal followed.
DISCUSSION Plaintiffs seek reversal on two grounds. First, Plaint iffs contend the district court erred by failing to decide after tr ial whether Pathway and XPO were joint employers under the Four th Circuit’s test in Hall-Salinas —the framework the court applied at summary judgme nt—before deciding, under Baker , whether Plaintiffs were misclassified as inde pendent contractors

. This post-trial legal mistake, Plaintiffs argue, caused the district court to give insufficient attention to the relationship between Pathway and XPO in the classi fication analysis and yielded clearly erroneous factual findings on some of the Baker factors. Second, Plaintiffs challenge the district court’s conclusi on that they are independen t contractors under the FLSA. We reject both arguments. We discern no error in the district court’s post-trial decision to forego a joint employment analys is because the court explicitly assumed, as Plaintiffs contended, that Pathway and XPO we re joint employers. Having reviewed the trial record de novo, we af firm the district c ourt’s ultimate legal determination that Plaintif fs are independent contract ors, not employees, under the
FLSA. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1112 I. Applicable law a nd standard of review An employer-employee relationship is a prerequisite to an FLSA claim. See 29 U.S.C. §§ 201-19. The FLSA defines an em ployee as “any individual employed by an employer,” id. § 203(e)(1), and “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” id. § 203(d). When determining whether an individual is an employee under the FLSA or an independent contractor exempt from its coverage, “our i nquiry is not limited by any contractual terminology or by traditional common law concepts of ‘employee’ or ‘independent contractor.’” Henderson v. Inter-Chem Coal Co ., 41 F.3d 567, 570 (10th Cir. 1994) (q uotation omitted), as modified on denial of reh’g (Dec. 5, 1994). Our circuit uses the “econom ic realities” test in Baker , 137 F.3d at 1440, to determine whether a worker should be classified as an employee under the FLSA. Baker articulated six factors to gui de the classification inquiry: (1) the degree of control exerted by the alleged employer over the worker; (2) the worker’s opportunity for profit or loss; (3) the worker’s investment in the business; (4) the permanence of the working relationship; (5) the degree of skill required to perform the wo rk; and (6) the extent to which the work is an integral part of the alleged employer’s business. Id. (citation omitted); see also Acosta v. Paragon Contractors Corp ., 884 F.3d 1225, 1235 (10th Cir. 2018). No factor “in isolation is dispositive; rather, the test is based upon a totality of the circumstances.” Dole v. Snell , 875 F.2d 802, 805 (10th Cir. 1989) (citing Rutherford Food Corp. v. McComb , 331 U.S. 722, 730 (1947)). Ultimately, the “economic realities of the re lationship govern, and ‘the focal point is whether the individual is economically depe ndent on the business to which he renders Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1213 service . . . or is, as a matter of ec onomic fact, in business for himself.’” Baker , 137 F.3d at 1440 (alteration in or iginal) (quotation omitted). In applying Baker ’s “economic realities” test, a district court must “make findings of historical facts su rrounding the individual’s work.” Id. Then, “drawing inferences from the findings of historical facts, the cour t must make factual findings with respect to” the six Baker factors. Id. Finally, “employing the findings [of fact] with respect to the six factors, the court mu st decide, as a matter of law, whether the individual is an ‘employee’ under the FLSA.” Id. (citation omitted). Baker also explains the standards gove rning appellate review of a classification decision. “In reviewing the district court’s decision on appeal, we review the two types of factual findings (findi ngs of historical fact, and findings with respect to the six fact ors) for clear error.” Id. at 1441. Clear-error review requires us to “view the evidence in the light most favorable to the district court’s ruling” and to “uphold any district court finding that is permissible in light of the evidence.” Sw. Stainless, LP v. Sappington , 582 F.3d 1176, 1183 (10t h Cir. 2009) (quotation omitted); see also Anderson v. City of Bessemer City , 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the evidence, th e factfinder’s choice between them cannot be clearly erroneous .” (citations omitted)). “The burden on appellants to prove clear e rror . . . is a heavy one.” Stephens Indus., Inc. v. Haskins & Sells , 438 F.2d 357, 360 ( 10th Cir. 1971). “We will reve rse under the clear error standard only if the district court’s finding ‘is without factua l support in th e record or if, after reviewing all the ev idence, we are left with a definite and firm conviction Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1314 that a mistake has been made.’” Acosta v. Foreclosure Connection, Inc ., 903 F.3d 1132, 1134 (10th Cir. 2018) (quotation omitted). We review de novo the “ultimate determination of whether an individual is an employee or an independent contractor” under the FLSA. Baker , 137 F.3d at 1441 (citation omitted).
II. The district court did not err in foregoing a post-trial joint employment analysis because it a ssumed, as Plaintiffs contended, Pathway and XPO were joint employers. Plaintiffs have consistently maintain ed XPO and Pathway are joint employers for purposes of liability under the FLSA. In their complaint, Plaintiffs claimed Pathway and XPO, working together, exer cised “complete control over the working relationship.” R. vol. 1 at 75. Plaintiffs alleged, “Despite [Pathway and XPO] having tried to structure their rela tionship with Plaintiffs fo r the purpose of avoiding an employer-employee relationship, the economic realities of the relationship dictate that Plaintiffs are in f act Defendants’ employees.” Id. At the summary judgment stage, the district court ag reed joint employment was a “threshold question in this case,” R. vol. 2 at 753 (quotations omitted), and then, as Plaintiffs had advocated, analyzed the issue under the Fourth Circuit’s test in Hall-Salinas

. Under the Hall-Salinas framework, a court considers the relationship between a worker’s putative joint employers, and then separately cons iders the worker’s relationship to all the putative jo int employers in the aggregate. See Hall , 846 F.3d at 768. The district court acknowle dged our circuit has not adopted Hall-Salinas —or any test unique to determining joint em ployment under the FLSA—but found its application appropriate under the circumstan ces, particularly absent any contrary Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1415 circuit precedent. Ultimately, the district court concluded genuine issues of material fact precluded summary judgment on the joint employment issue. Af ter trial, rather than resolving the issue under Hall-Salinas , the district court assumed joint employment for purposes of the classificati on analysis, concluding “Plaintiffs were independent contractors, regardless of wh ether Defendant Pathway [was] considered independently as an employer or whet her XPO and Defendant Pathway [were] considered collectively as joint employers.” R. vol. 2 at 1253. On appeal, Plaintiffs argue the district court erred by failing to engage in a post-trial analysis of joint employment using the Hall-Salinas framework and ask us to “remand for the lower court to conduct the Hall-Salinas test in the first instance.”
See Aplts.’ Br. at 15-16, 34. Plaintiffs adva nce two supporting contentions, which we consider and reject. First, Plaintiffs contend “had the lower court conducted the Hall-Salinas inquiry first, it would have found that Pathway and XPO were joint employers.” Id. at 16. Plaintiffs proceed from a faul ty premise. The district court did find that Pathway and XPO were joint employers; it made that assumption before resolving classification under Baker . As Pathway correctly observe s, “the court addressed the issues in the right sequence. It addressed joint employment first. It simply assumed, rather than decided, that Pathway and XP O were joint employers before addressing whether they had misc lassified plaintiffs

. ” Aplees.’ Br. at 24. Plaintiffs thus spend considerable time on appeal seeking to win a point they already proved in the district

court. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1516 Our precedent does not command a district court to address joint employment under Hall-Salinas . In our circuit, district courts must apply the “totality-of-thecircumstances” approach in Baker , 137 F.3d at 1440 (citation omitted), to determine whether a worker is an independent contra ctor or an employee under the FLSA. Thus, even if Hall-Salinas offers an appropriate test for analyzing whether two entities are joint employers, there was no need, under the ci rcumstances, for the district court to analyze an issue already d ecided in Plaintiffs’ favor. 8 Second, Plaintiffs insist the thre shold legal mistake—assuming a joint employment relationship instead of conduc ting a joint employment analysis under Hall-Salinas —caused the district court to gi ve insufficient attention to the relationship between Pathway and XPO under the Baker factors. “[T]he inputs to the six-factor FLSA empl oyee analysis would have changed had the [ Hall-Salinas ] test been conducted first,” Plaint iffs contend, so “skipping ” the test “was harmful.” Aplts.’ Br. at 23, 33. We unde rstand this argument to cha llenge as clearly erroneous the district court’s fact ual findings under the six Baker factors. We ar e not persuaded. The district court appropriately focuse d on the relationship between Pathway and XPO—and not just on Plaintiffs’ relations hip to each entity separately—in deciding Plaintiffs were correctly classified as indepe ndent contractors.

8 Plaintiffs ask us to adopt the Hall-Salinas test, but we decline the invitation in this case. See Griffin v. Davies , 929 F.2d 550, 554 (10th Ci r. 1991) (“We will not undertake to decide issues that do not a ffect the outcome of a dispute.” (citation omitted)). Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1617 As the record squarely confirms, the di strict court underst ood the classification analysis in this case required inquiry into the combin ed influence of Pathway and XPO. At the summary judgment stage, the district court explained that here, where joint employment was a threshold questi on, evidence “bearing on the relationship between [Pathway] and XPO . . . may be ex amined to determine whether Plaintiffs were independent contractors or employees.” R. vol. 2 at 768. After trial, the district court acknowledged the parties submitted a “lot of evidence” about Pathway and XPO’s relationship, R. vol. 3 at 1107, and recognized its obligation “to consider” and “sort through” that evidence and “make a conclusion about [it],” id. The district court also remarked “the issue of whether ther e was joint employment here [was] a close call.” Id. at 1099. Ultimately, the district court determined Plaintiffs were independent contractors “regardless” of whether XPO and Pathway “are considered collectively as joint employe rs.” R. vol. 2 at 1253. As we will explain, we agree with Plaintif fs that the district court’s analysis of the sixth Baker factor—the extent to which the wo rk performed is “integral to the business”—does not fully conform to its assumption that Pathway and XPO were joint employers. But we discer n no reversible error because the district court properly ruled, under the totality of th e circumstances, Plaintiffs we re independent contractors.
III. The district court did not err in concluding Plaintiffs were independent contractors, rather than employees, under the FLSA. Our six-factor test in Baker applies to Plaintiffs’ misclassification claim

. No one factor is dispositive because Baker contemplates a “totalit y-of-the-circumstances Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1718 approach.” 137 F.3d at 1441 (citation omitted). Recall, we review the district court’s factual findings under Baker for clear error and its ultima te classification decision de

novo. Id. “The existence and degree of each f actor is a question of fact while the legal conclusion to be drawn from those facts—whether worker s are employees or independent contractors— is a question of law.” Dole , 875 F.2d at 805 (quotation omitted). Plaintiffs contend the distri ct court erred in finding th ey were not employees of Pathway. 9 According to Plaintiffs, every Baker factor supports employee status under the FLSA. Pathway responds that th e district court’s findings under Baker are not clearly erroneous and that, under the totality of the circumstances, the district court correctly concluded Plaintiffs were properly classified as independe nt contractors. As we will explain, Plaintiffs successfully challenge some components of the district
court’s Baker analysis, but a proper application of the standard of review compels affirmance. The district cour t’s factual findings are firm ly supported by the record,

9 On appeal, Plaintiffs argue they “s hould be considered employees under the FLSA when looking to either Pathway alone or to Pathway and XPO as joint employers.” Aplts.’ Br. at 35 n.10. The dist rict court said it assessed Pathway’s liability under the FLSA, not ju st collectively with XPO, but also “independently as an employer.” R. vol. 2 at 1253. But, as Pathway correctly obser ves, “the district court never analyzed [P]laintif fs’ relationship with Pathway as a separate employer .” Aplees.’ Br. at 26 (emphasis added). Ind eed, we struggle to see how Pathway alone— that is, outside of a joint employment re lationship with XPO—could be considered Plaintiffs’ sole employer under the FLSA. Cf. 29 U.S.C. § 203(d), (g) (defining “employee” as “any individual employed by an employer” and “[e]mploy” as “to suffer or permit to work”). With XPO out of the case and only Pathway remaining as a defendant, it seems there w ould have been no basis to e ngage with the classification analysis under Baker had the district court not assume d—as it did here, in Plaintiffs’ favor—that Pathway and XP O were joint employers. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1819 and we discern no error in its legal conclu sion that Plaintiffs were “in business for [themselves].” R. vol. 2 at 1260 (a lteration in original) (quoting Baker , 137 F.3d at 1443).
1. Degree of control The first Baker factor is the degree of contro l the putative employer exercises over the worker, and whether the “work si tuation makes it possi ble to view [the workers] as persons conduc ting their own businesses.” Baker , 137 F.3d at 1440 (citation omitted). The district court found th is factor favored i ndependent contractor status because the trial ev idence “demonstrate[d] a rela tively low degree of control exerted by [Pathway] and/or XPO over Plain tiffs.” R. vol. 2 at 1254. Plaintiffs advance several challenges to this fa ctual finding, but none is availing. First, notwithstanding Plaint iffs’ contrary assertion, the district court, having assumed a joint employment relationship, di d consider the combined influence of Pathway “and/or XPO” in its analysis of the “degree of control” factor—indeed, it expressly stated as much. Id. Second, Plaintiffs marshal trial evidence to show Pa thway exerted significant control over critical elemen ts of their daily jobs. Plai ntiffs contend, “Pathway controlled who [Plaintiffs] worked for, wh at loads were assigned to them, and how they maintained their trucks. Under these ci rcumstances, the contro l factor weighs in favor of finding that [Plainti ffs] were employees.” Aplts.’ Br. at 41. Plaintiffs seem to challenge the district court’s factual finding by urging us to reweigh the evidence. This we cannot do. In applying the clear-err or standard, our limited role requires we Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 1920 review the district court’ s work, not undertake it. See Anderson , 470 U.S. at 573 (“In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mi nd that their function is not to decide factual issues de novo.” (quotation omitted)). Third, we reject Plaintiffs’ contention that the district court “misread[]” our decision in Acosta v. Paragon Contractors Corp. , 884 F.3d at 1235, and thus “applied the wrong legal test fo r control.” Aplts.’ Br. at 41. “[W]hen a lower court’s factual findings are premised on impr oper legal standards or on proper ones improperly applied, they are not entitled to the protection of the clearly erroneous standard, but are subject to de novo review.” In re Kretzinger , 103 F.3d 943, 946 (10th Cir. 1996) (quot ation omitted). In Acosta , we held the degree-of-control factor supported classification of the worker “as an independent contract or rather than an employee.” 884 F.3d at 1236 (citation omitted) . In so concluding, we affirmed the district court’s decision to take “various considerations” into account, “such as [the worker’s] independence in setting his own work hour s and other conditions and details of his work, the extent of the [putative employer’s ] supervision of [him], and the degree of [his] ability to work for other employers.” Id. at 1235 (citations omitted). Plaintiffs contend the di strict court misconstrued Acosta as defining the control factor only in terms of whether a worker “could set his own hours and determine how best to perform his job within broad pa rameters.” Aplts.’ Br . at 41 (quotation omitted). According to Plaintiffs, this in terpretation was too narrow, when “the Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2021 proper control inquiry in [the Tenth] Circuit is broader, and includes (as Acosta did) whether the Lease Drivers we re ‘free to offer their serv ices to third parties.’” Id. at 42 (quoting Dole , 875 F.2d at 808). We disagree.
Acosta stands for the proposition that, when analyzing degree of control under Baker , district courts may cons ider whether putative empl oyees can work for third parties. 884 F.3d at 1235-36. Whether work ers may offer their services to third parties is not a dispositive consideration to be addressed in ev ery misclassification case but is generally relevant to the Baker analysis, which demands inquiry into the totality of the circumstances. As Pathway correctly observes , the district court did not misunderstand Acosta but applied it correctly to the facts here. Finally, Plaintiffs argue th e district court “made clea r factual errors” in finding they used their own “busin ess judgment to determine wh ether to decline loads.” Aplts.’ Br. at 42 (quotation omitted); see also Reply Br. at 17. Plai ntiffs also contend the district court “ignor[ed] that [they] in effect could not work for other carriers.” Aplts.’ Br. at 42. For instan ce, Plaintiffs point to Plai ntiff Zigmund Gutowski who testified if he was offered an XPO load but “didn’t like it” and declined the load, “there [were] consequences,” such as later “get[ting] lo wer miles.” R. vol. 3 at 679. Mr. Harris testified that Plaintiffs had to secure Pathway’s permission before they could drive for another carrie r, and that, with one owne r-operator, Pathway required the payment of outstanding debts before appr oving his switch. And if they wanted to drive for a carrier that did not have a “p ayment direction letter” with Pathway, Plaintiffs had to pay a down payment before driving for that carrier. R. vol. 3 at 909. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2122 According to Plaintiffs, th is evidence shows they “had limited discretion” in performing their work, and the district c ourt clearly erred in finding otherwise. Aplts.’ Br. at 39. Even if Plaintiffs have correctly rec ited the trial evidence, they have not identified reversible error. “P laintiffs must show more th an the viability of their own theory to warrant remand unde r the clear error standard. They must demonstrate the district court’s findings were impermissible.” Obeslo v. Great-W. Life & Annuity Ins.
Co. , 6 F.4th 1135, 1148 (10th Ci r. 2021) (citation omitted). Plai ntiffs have not carried that heavy burden here. For example, the record confirms neither Pathway nor XPO decided for Plaintiffs whether they drove alone, as a te am, or hired their own employees to help haul freight. Plaintiffs coul d sign single-person or team le ases with Pathway. Under XPO’s Contractor Hauling Agreement, Plain tiffs could hire othe r drivers to help them haul freight. And unlike XPO’s company drivers, Plaintiffs were not subject to “forced dispatch.” The record also shows Plaintiffs decide d what loads to accept or decline, when and where they would drive, and how much time to take off—all without having to secure the permission of Path way and/or XPO. For example, Plaintiff Frank Merrill testified that Pathway did not establish a work schedule for hi m or require him to drive specific routes. See R. vol. 3 at 134. Plaintiff Crai g Williams testified he could take time off when he wanted and determin e if a load would be profitable enough to take or turn down. See R. vol. 2 at 1238, vo l. 3 at 517-18. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2223 Finally, we reject Plainti ffs’ contention that the term s of the Equipment Lease Agreement render the district court’s degr ee-of-control findings clearly erroneous. According to Plaintiffs, the Equipment L ease Agreement “vested in Pathway” the power to prevent Plaintiffs from driving for any carrier be sides XPO. Aplts.’ Br. at 42. “Had the lower court considered the Equipment Lease Agreement,” Plaintiffs maintain, “it could not have found that [P laintiffs’] decision to reject assigned loads came down to business judgment—rather th an fear of negative repercussions.” Id. We are not persuaded. Recall, on clear-error review, “[w]e vi ew the evidence in the light most favorable to the district court’s ruling and must uphold any district court finding that is permissible in light of the evidence.” Weyerhaeuser Co. v. Brantley , 510 F.3d 1256, 1262 (10th Cir. 2007) (quotation omitted). As Plaintiffs acknowledge, the Lease Agreements permitted dr ivers to switch carriers. See Aplts.’ Br. at 42; see also Supp. App. at 52; R. vol. 3 at 933. To be sure, the lease terms re quired Plaintiffs to secure Pathway’s permission before making a switch. Plaintiffs ar gue that having to secure permission tilts the “degree of control” factor in favor of employee status. We disagree. “That the record s upports a view of the eviden ce that is permissible but contrary to the trial court’s findings is not sufficient to warrant upsetting the lower court’s findings.” Holdeman v. Devine , 572 F.3d 1190, 1192 (10th Cir. 2009) (citation omitted). In any event, the record shows Pathway never told any driver they could not change carriers. Several Plaintif fs switched carriers wh ile leasing trucks from Pathway. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2324 The trial evidence thus supports the dist rict court’s finding that Pathway and XPO exerted “a relatively low degree of contro l” over critical elements of Plaintiffs’ work. Plaintiffs have advanced no availing argument otherwise.
2. Opportunity for profit and loss The second Baker factor focuses on the worke r’s opportunity for profit and loss, including the worker’s “control over th e essential determinants of profits in a business” and whether they have a “direc t share in the succes s of the business.” Baker , 137 F.3d at 1440 (quotation omitted). The district court found this factor favored independent contract or status because “Plainti ffs’ opportunities for profit or loss were largely within their own control. ” R. vol. 2 at 1256. We discern no error. Plaintiffs first contend the district court “applied an in correct legal test for the [opportunity for] profit or loss” factor . Aplts.’ Br. at 46 (emphasis omitted). According to Plaintiffs, the sole consideration in a cour t’s legal analysis of the second Baker factor is whether opportunities fo r profit or loss depended on the worker’s own “ managerial skill —an analysis the lower court did not perform.” Id. at 47. Plaintiffs understand “manag erial skill” to mean the use of their own initiative to realize profits from their work. Id. at 45-46. They appear to contend their jobs required no “managerial skill” because prof it and loss “was primarily determined by their ability to drive more miles—but not too many more miles—more efficiently.” Id. at 46. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2425 Pathway argues this legal argument has been forfeited becau se Pathway failed to raise it before the district cour t. Aplees.’ Br. at 37. We agree. 10 Even if preserved, the argument is unavailing. As Pathway co rrectly observes, our precedent “does not demand a singular focus on managerial sk ills to the exclusion of all other considerations in assessing the opportunity for profit and loss.” Id. (citations omitted). For instance, in an alyzing the “opportunity fo r profit and loss” factor, a district court may consider—a s the district court properly did here—whether workers “have [an] opportunity to e xperience a loss on the job.” Baker , 137 F.3d at 1441; see also id. (concluding district cour t’s factual finding that wo rkers were employees was not clearly erroneous in part because “there is absolutely no risk of loss on plaintiffs’ part”); Johnson v. Unified Gov’t of Wyandotte Cnty. , 371 F.3d 723, 730 (10th Cir. 2004) (“Did the plaintiffs have the opportunity for profit or loss? The plaintiffs could

10 According to Pathway, Plaintiffs did not argue below that the “sole relevant consideration” under this Baker factor is “whether the worker needed managerial skill.” Aplees.’ Br. at 37. In contesting forfeiture, Plainti ffs point to their post-trial Revised Proposed Findings of F act and Conclusions of Law, see Reply Br. at 22, where they asserted: “Plaintif fs’ opportunity for profit and loss was not dictated by their own initiative and work ethic, but rath er, [by XPO’s] dispat ch schedule . . . and how much Pathway [was] deducting from Plain tiffs’ pay,” R. vol. 2 at 931. We agree with Pathway that Plaintiffs have not pr eserved their appellate argument that, as a legal matter, our precedent requires a distri ct court to consider “whether realizing profit [for purposes of the Baker analysis] involved manage rial skill.” Aplts.’ Br. at 47 (emphasis removed); see also Richison v. Ernest Grp., Inc ., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f the [l egal] theory simply wasn’t raised before the district court, we usually hold it forfe ited.”) (citations omitted)). And we will not entertain Plaintiffs’ forfeited argument because, as Pathway also observes, Plaintiffs have not attempted to show plain error on appeal. See id. (“[W]e will reverse on the basis of a legal theory not previously presented to the district court . . . . [but] requir[e] a litigant to show the four el ements of plain error.” (citations omitted)). Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2526 not have lost money from their efforts fo r the Housing Authority. Certainly, then, their circumstances differed from those of some independent contractors.”). To the extent Plaintiffs contend the district court’s fa ctual findings on the “opportunity for profit and lo ss” factor are clearly errone ous, we are not persuaded. Plaintiffs maintain they did not depend on their “managerial skills” to realize profits, and their success depended on what loads XPO offered them. Aplts.’ Br. at 44-45. However, as Pathway observes, the distri ct court found Plaintiffs, unlike XPO’s company drivers, were exposed to a risk of monetary loss based on the fuel efficiency of their loads. Rates of pay differed be tween company drivers and owner-operators, and Plaintiffs were responsib le for their own trucks’ ma intenance to turn profits. Their decisions whether to drive in teams, a nd what routes to take when driving, also factored into whether they profited as ow ner-operators. And Plaintiffs who completed their leases “could earn substa ntially more” than their p eers. R. vol. 2 at 1255. At bottom, ample record evidence supports the district court’s finding that the “opportunity for profit a nd loss” factor favored inde pendent contractor status. Plaintiffs have not es tablished clear error.
3. Investment in the business The third Baker factor considers the worker’s investment in the business. Baker , 137 F.3d at 1440. The district court f ound this “investment in the business” factor supported inde pendent contractor status becau se Plaintiffs “substantially invested in their chosen business” of long-haul trucking. R. vol. 2 at 1256. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2627 Plaintiffs urge reversal , contending the district court erred by looking at Plaintiffs’ “investments in a vacuum, not in comparison to Pathway’s own investments.” Aplts.’ Br. at 48 (citation omitte d). Pathway argues Pl aintiffs also have forfeited this legal argument by failing to ra ise it below. Aplees.’ Br. at 40. Again, we agree with Pathway. On appeal, Plaintiffs corr ectly explain that, in eval uating the “investment in the business” factor, courts compare an employer’s investments with the worker’s investments. Aplts.’ Br. at 48; see also Acosta , 884 F.3d at 1236 (“To analyze this factor, we compare the investments of the worker and the alleged employer.” (citing Baker , 137 F.3d at 1442)). In making this eval uation, a trial court must consider a worker’s “large capital expenditures.” Acosta , 884 F.3d at 1236 (quotation omitted). 11 But in the district court, Pl aintiffs did not argue, as they do now, that the district court had to compare Plaintif fs’ investments in the busines s to Pathway’s investments in its business. Aplts.’ Br. at 48-50. But see R. vol. 2 at 932. Plaintiffs have therefore failed to preserve th eir appellate argument. See Richison , 634 F.3d at 1128. Even if preserved, the argument is unavailing. According to Plaintiffs, Pathway’s investments in its fleet of truc ks, employees’ salaries , and leased office space—Pathway’s overall business—were co mparatively greater than Plaintiffs’ investments in their trucks. See Aplts.’ Br. at 49-50. Even if we assume Pathway incurred expenses beyond thos e related to leasing truc ks, a comparison of these

11 Plaintiffs do not argue the district court erred in finding their leases and work-related expenses were relevant investments under this factor. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2728 investments to Plaintiffs’ investments does not tip the scale in favor of employee

status. The district court found Plaintiffs not only incurred lease and truck maintenance expenses but also paid bus iness-related taxes. Some Plaintiffs established their own companies. Indeed, Pl aintiff Merrill’s leas e term extended for 40 months with a monthly rental rate of $2,250.00, a total of $90,000, and included an advance rental payment along with secu rity deposit fees. Supp. App. at 51. Other Plaintiffs paid over $90,000 to Pathway dur ing their lease terms. R. vol. 3 at 774, 840. The record supports th e district court’s finding that Plaintiffs made significant personal investments in their trucks and truck repair and maintenance. See Sanchez v. State of Colorado , 97 F.3d 1303, 1309 (10th Cir. 199 6) (“[W]e shall not disturb [a factual] finding unless there is no evidence in the r ecord to support it .”). And, as the district court found, Plainti ffs’ non-negligible investme nts in their businesses and payment of related expenses indicate they were “in business for themselves.” Baker , 137 F.3d at 1443 (citations omitted).
4. Permanency of working relationship The fourth Baker factor considers the permanence of the working relationship. Baker , 137 F.3d at 1440. This factor favors empl oyee status where “characteristics of [workers’] employment are clearly due to the intrinsic nature of [their] work rather than any choice or decision on the part of [the workers].” Id. at 1442 (emphasis added). The district court found that the “permanence of the working relationship” Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2829 factor “weighs slightly in fa vor of a finding of independent contractor status.” R. vol.
2 at 1257. Plaintiffs do not seem to challenge the district court’s perm anency findings as clearly erroneous. Rather, th ey argue the permanency factor favors employee status because some Plaintiffs were indebted to Pathway after taking out loans documented by Pathway’s promissory notes. The indebte dness created by these loans, Plaintiffs insist, demonstrates permanency in their working relationship with Pathway. Aplts.’ Br. at 52-53. Even if we found Plaintiffs’ contention persuasive, that would not be a legitimate basis for reversal. See Anderson , 470 U.S. at 573-74 (“If the district court’s account of the evidence is plausibl e in light of the r ecord viewed in its entirety, the court of appeals may not reve rse it even though co nvinced that had it been sitting as the trier of fact, it would have weighed the evidence diffe rently.”). In any event, Plaintiffs’ position is not supported by the re cord. The district court found Pathway offe red Plaintiffs loans to cover re pair costs for which Plaintiffs “had responsibility under [their] leases.” R. vol. 2 at 1251. Pathway issued promissory notes to Plaintif fs for any necessary truck re pairs. Many drivers received little take-home pay after s ecuring loans from Pathway a nd making payments on their promissory notes. Even so, the record makes clear Plai ntiffs’ indebtedness resulted from their contractual lease obl igations to maintain their trucks, and was not “due to the intrinsic nature” of long-haul truck driving. Baker , 137 F.3d at 1442. We thus discern no clear error in the district court’s findings that , given the impermanence of the working relationship, this fact or did not support employee status. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 2930 5. Degree of skill required to perform the work The fifth Baker factor considers the degree of skill required to perform the work. See Baker , 137 F.3d at 1440. The district c ourt found this “degree of skill” factor “weigh[ed] slightly in favor of a finding of independent contractor status” because “certain additional skills were re quired to perform Pl aintiffs’ work, as compared to the skills required for co mpany drivers.” R. vol. 2 at 1258-59. According to the district court, “Ma ny of the work duties performed by owneroperators were the same as thos e performed by company drivers.” Id. at 1258. Pathway concedes as much. See Aplees.’ Br. at 44. However, the district court found, “in addition to the required skills bot h company drivers and owner-operators possessed [for] driving commercial trucks,” Plaintiffs also needed skills like “business acumen and financia l proficiency to be profita ble” as owner-operators. R. vol. 2 at 1258. On appeal, Plaintiffs contend the di strict court committed legal error by focusing on “the degree of skill required to profit from the job” as owner-operators when the proper focus should have been on “the degree of skill required to perform the job” of long-haul truck driving. Aplts.’ Br. at 53. We agree. Baker teaches that district courts must ex amine what, if any, specialized skills are required to perform the wo rk for the employer—and not, as the district court did here, the skills needed fo r the worker to independe ntly profit from the work. See Baker , 137 F.3d at 1443 (determining district court’s finding that the “degree of skill” factor favored employee status was not clearly erroneous because “plaintiffs Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 3031 are highly skilled but they did not exercise those skills in any independent fashion in their employment with [defendant-appellant].” (emphasis added)); see also Acosta , 884 F.3d at 1237 (finding fifth Baker factor favored employee status where worker provided testimony about his job duties an d his employer “d[id] not identify any specialized skills needed for the[] tasks”); Doty v. Elias , 733 F.2d 720, 723 (10th Cir. 1984) (affirming district c ourt’s conclusion that waite rs and waitresses were employees when the job of waiting tables “did not require any specialized skills”); Johnson , 371 F.3d at 730 (“As to the degree of skill in volved in the actual labors , the officers who served as securi ty guards had been trained by the police department and did not need further training.” (emphasis added)). Here, the fifth Baker factor looks to what specialized skills Plaintiffs needed to perform the work of long-h aul commercial truck driving for Pathway and/or XPO. See Baker , 137 F.3d at 1443; see also Acosta , 884 F.3d at 1237. The district court found Plaintiffs, as owner-ope rators, required the same skill s to haul freight as XPO’s company drivers. The district court’s finding that Plaintiffs needed “additional skills . . . to perform [their] work,” R. vol. 2 at 1529, was based on a mistaken impression of applicable legal principles and therefore is “not entitle d to the protection of the clearly erroneous standard,” In re Kretzinger , 103 F.3d at 946 (quotation omitted); see also Sanchez , 97 F.3d at 1309 (“However formidable a standard, [clear error] is not insurmountable . . . for it ‘does not inhibit an appella te court’s power to correct errors of law, including those that may in fect a so-called mixed finding of law and Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 3132 fact, or a finding of fact that is pred icated on a misundersta nding of the governing rule of law.’” (quotation a nd internal citation omitted)). However, “[n]one of the [ Baker ] factors alone is di spositive” because the district court must employ “a totality-of-the-circum stances approach” in resolving the ultimate classification issue. Baker , 137 F.3d at 1441 (cita tion omitted). We thus proceed in our review of the dist rict court’s findings under the final Baker factor.
6. Integral part of the business The sixth Baker factor considers the extent to which an individual’s work is integral to the putativ e employer’s business. See Baker , 137 F.3d at 1440. This “integral to the business” factor “turns ‘ on whether workers’ serv ices are a necessary component of the [putativ e employer’s] business.’” Acosta , 884 F.3d at 1237 (quoting Baker , 137 F.3d at 1443). The district c ourt found the factor was “neutral” because “[n]either party presented adequate evidence regarding this factor.” R. vol. 2 at 1259. The district court reasoned, “O n the one hand, it [was] obvious that Defendant Pathway could not remain in bu siness without Plaintiffs performing the hauling work for which trucks are required.” Id. The district court continued: “On the other hand, the actual freight hauling done by Plaintiffs was performed for XPO, and no work was performed directly for Path way beyond the require ments necessary [for Plaintiffs] to fulfill [t heir] lease obligations.” Id. Recall, Plaintiffs contend that by ski pping the joint employment analysis under Hall-Salinas , the district court gave insufficient attention to the relationship between Pathway and XPO in analyzing this Baker factor. Had the district court “conducted Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 3233 the joint employer test first,” Plaintiffs contend, then th e court “would have recognized that Pathway and XPO’s combined business, truck leasing and freight hauling, could not exist without [Plaintiffs].” Id. (emphasis added). Plaintiffs’ point is well taken. That the district court found the “integ ral to the business” factor neutral suggests it may have c onsidered Pathway indivi dually, and not Pathway and XPO collectively, as the putativ e employer when assessing wh ether Plaintiffs’ services were a “necessary component” of the busin ess. As to Pathway alone, we discern no clear error in th e district court’ s factual finding. See Hayes v. SkyWest Airlines, Inc ., 12 F.4th 1186, 1194 (10th Cir. 2021) (“A fact finding is clearly erroneous only where it wholly lacks support in the record.” (citing Foreclosure Connection , 903 F.3d at 1134)). But because the district c ourt assumed a joint employ ment relationship at the outset, it had to consider, for purposes of the classi fication analysis, whether Plaintiffs’ work was integr al to the business of the combined entity. The trial evidence showed XPO is a freight hauling bus iness. As Plaintiffs properly assert, and Pathway does not seriously dispute, when XPO is added to the mix as a joint employer, Plaintiffs’ work—long-haul truck driving—was integral to the business of Pathway and XPO. 12 Therefore, the district court’s finding that, as to the combined

12 Notably, in the district court, Pa thway conceded this factor favored employee status, and on appeal, Pathwa y acknowledges that “[f]actoring in [P]laintiffs’ relationship with XPO improves [Plaintiffs’] position slightly.” Aplees.’ Br. at 46. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 3334 entity, the “integral to the busin ess” factor is merely “neu tral” is not “permissible in light of the evidence.” Weyerhaeuser Co. , 510 F.3d at 1262 (quotation omitted). Even assuming the “integral to the business” factor is not neutral, but favors employee status when joint em ployment is assumed, we w ill not reverse the district court’s ultimate classification decision unle ss it fails to withsta nd scrutiny under de novo review. Here, we discer n no reversible error.
* * * Baker requires the district court to assess classification under the FLSA by considering the six-factor “economic r ealities” test under the totality of the circumstances. Baker , 137 F.3d at 1440-41. We review this ultimate classification decision de novo. Id. at 1441 (citation omitted). The district court entered the classification inquiry assuming Pathway a nd XPO were Plaintiffs’ joint employers. “Considering the totality of the circumstan ces,” the district court found Plaintiffs “acted with a ‘degree of independence’ whic h ‘set them apart from what one would consider normal employee status.’” R. vol . 2 at 1259-60 (alteration omitted) (quoting Baker , 137 F.3d at 1441). The district court c oncluded “Plaintiffs were ‘in business for [themselves],’” and therefore they were independent contractors, not employees, which “preclude[d] them from coverage under the FLSA.” Id. at 1260 (alteration in original) (quoting Baker , 137 F.3d at 1443). Pathway urges affirmance, contending the district court’s ultimate legal conclusion that Plaintiffs were independ ent contractors “flowed naturally” from its factual findings. Aplees.’ Br. at 47 (c iting R. vol. 2 at 1260). We agree. Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 3435 Notwithstanding the district court’s legal error in anal yzing the “degree of skill” factor and its failure to c onsider Pathway and XPO colle ctively when analyzing the “integral to the business” factor, we concl ude the district court properly determined, based on the totality of th e circumstances, that Plai ntiffs were independent contractors “in busine ss for themselves.” Baker , 137 F.3d at 1443 (cit ations omitted).
CONCLUSION The district court’s judgment is AFFIRMED.

Entered for the Court

Veronica S. Rossman Circuit Judge Appellate Case: 21-1295 Document: 010110730376 Date Filed: 08/26/2022 Page: 35