UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PATRICIA H. MCKINNEY et al ., : : Plaintiffs, : Civ il Action No.: 08-0333 (RMU) : v. : Re Document Nos.: 39, 46 : UNITED STOR-ALL CENTERS LLC : et al ., : : Defendants. :

MEMORANDUM OPINION

D ENYING THE D EFENDANTS ’ M OTION FOR S UMMARY J UDGMENT ; G RANTING P LAINTIFF M C K INNEY ’ S C ROSS -M OTION FOR P ARTIAL S UMMARY J UDGMENT I. INTRODUCTION

This matter is before the court on the de fendants’ motion for su mmary judgment and plaintiff Patricia McKinney’s cross-motion for partial summary judgment. The plaintiffs, Patricia McKinney and Darryl Robinson, were em ployed as the Primary Managers of selfstorage facilities owned and operate d by the defendants. They allege that the defendants failed to pay them overtime wages to which they were ent itled, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq . The defendants move for summary judgment, arguing that as “administrative” and “executive” employees , the plaintiffs were statutorily exempted from the FLSA’s overtime requirements. De fendant United Stor-All Centers LLC (“USAC”) also moves for summary judgment on the grounds th at the plaintiffs were employed solely by United Stor-All Management LLC (“USAM”) and not by USAC, and that USAC is therefore not a proper party to this action. Plaintiff McKinney has filed a cr oss-motion for partial summary judgment, contending that no re asonable jury could conclude that she was an “executive” employee for purposes of the FLSA.2 The court concludes that there exist genuine issues of material fact regarding the defendants’ assertion that the plaintiffs fall with in the “administrative” exemption to the FLSA’s overtime requirements. Accordingly, the cour t denies summary judgment to the defendants on

this issue. The court further concludes that the defendants have failed to demonstrate the absence of a genuine issue of material fact c oncerning whether the plaintiffs were “executive” employees. In fact, the evidence adduced plainl y demonstrates that pl aintiff McKinney did not fall within the “executive” exemp tion. Thus, the court denies summary judgment to the defendants on this issue and grants plainti ff McKinney’s cross-motion for partial summary judgment. Lastly, the court concludes that a genu ine issue of fact remains as to whether USAC had an employment relationship with the plaintif fs. Accordingly, the court declines to dismiss USAC from the litigatio n at this juncture.

II. FACTUAL & PROCEDURAL BACKGROUND

A. The Plaintiffs’ Job Responsibilities In March 2003, plaintiff McKinney was hired as the Primary Manager of Uptown SelfStorage, a self-storage facility operated by USAM . Defs.’ Statement of Material Facts Not in Dispute (“Defs.’ Statement”) ¶ 12. Uptown Se lf-Storage’s principal business involved the leasing of storage units and rental trucks to cust omers. Pls.’ Opp’n to Defs.’ Mot. for Summ. J. and Cross-Mot. for Partial Summ. J. (“Pls.’ Opp’ n”) at 11. From late February 2005 to January 2008, McKinney allegedly worked an av erage of sixty hours per week. Id . at 4. During this period, McKinney’s annual salary ranged from approximately $34,500 to $42,600. Defs.’ Statement ¶¶ 9-12. In addition, McKinney was provided with a rent-free apartment on the3 premises of Uptown Self-Storage with an estima ted rental value of $900 per month. Defs.’ Mot., Ex. 3 (Decl. of Cathy Avery-P ugh) (“Avery-Pugh Decl.”) ¶ 13. In 2005, plaintiff Robinson became the Prim ary Manager of Fullerton Self-Storage, another self-storage facility operated by USAM . Defs.’ Statement ¶¶ 54-55. Robinson alleges that from September 2005 to September 2008, he worked approximately forty-five hours per week. Pls.’ Opp’n at 4. During this peri od, Robinson earned between approximately $34,000 and $36,000 per year. Defs.’ Statement ¶ 70. As set forth in the “Position Description” created by the plaintiffs’ employer, a Primary Manager’s duties fell into roughly four categories: (1) Sales, Marketing and Customer Service; (2) Administration; (3) Custodial and Maintenance; and (4) Lead ership/Supervision. Defs.’ Mot., Ex. 5 (“Position Description”) at 1-2. Th e first category of res ponsibilities required Primary Managers to “[a]chieve[] lease-up obj ectives by utilizing e ffective advertising, telephone techniques, and direct interactions with potential customers,” “[p]romote[] and maintain[] excellent customer relations by pr oviding information and resolving problems effectively and in a timely fashion,” “[c]reat e[] and implement[] [an] annual marking plan, spending at least 1⁄2 day per week on approve d marketing activities” and “[r]ecommend[] marketing strategies based on competitive informa tion, maintaining market studies, and analysis of local business opportunities.” Id . at 1. The Primary Manager’s “Administrative” res ponsibilities included “[m]anaging cash and balancing receipts,” “[m]aking co llections, posting payments, and . . . daily bank deposits” and “[f]ollow[ing] up on delinquent accounts.” Id . Primary Managers were also required to prepare “such management, marketing, operational or othe r reports as required in [the Operations4 Manual] or as required from time to time by th e District Manager” and to accurately utilize computer systems and accounting records. Id

. The Primary Manager’s “Custodial and Maintenance” duties included “[v]isually inspect[ing] the store daily” and “respond[ing] to potential breach of security problems,” “[m]onitor[ing] security systems, ” “[e]nsur[ing] the cleanliness a nd orderliness standards are met in the office, restrooms and grounds and that va cant units are cleaned on a timely basis . . . [which] means doing the work him/herself when ever necessary” [and] “[p]erform[ing] minor repairs needed at the facility.” Id . Primary Managers were require d to “[k]eep the premises in a neat and clean condition, the grounds free of debr is, and the landscaped areas free of weeds.” Id

. at 1-2. As for “Leadership/Supervision,” the Prim ary Managers were responsible for the “effective training and supervisi on of Assistant Manager(s) [to ensure] that the facility [was] properly managed in his/her absence.” Id . at 2. In addition, the Primary Manager was responsible for the “recruiting, hiring, tr aining and motivation of subordinates.” Id

. The Primary Manager was the highest level empl oyee at each facility and reported to an off-site District Manager. Defs.’ Mot. at 4-5. The Primary Manager was required to have “[f]requent and regular contacts with [his or her] supervisor [and] Home Office Personnel.” Position Description at 2. In addition, each Primary Manager was provided with an extensive Operations Manual. See Pls.’ Opp’n at 2 & Ex. 7 (“Operations Manual”). As discussed in more detail below, the Operations Manual provide d detailed instructions on how each Primary Manager was to fulfill his or her responsibilities. See generally id

. McKinney states that she spent approximately forty percent of her time on customer sales and service, forty-five percent of her time on maintenance, five percent of her time on marketing5 activities and ten percent of her time on staff ma nagement. Pls.’ Opp’n at 1 & Ex. 5 (Affidavit of Patricia McKinney) (“McKinne y Aff.”) ¶ 3. Robinson testified that he spent approximately fifty percent of his time on customer sales and serv ice, thirty percent of his time on maintenance, five percent of his time on marketing and fi fteen percent of his time on “administrative management/facility management.” Id . at 1-2, Ex. 2 (Dep. of Darryl Robinson) (“Robinson Dep.”) at 142-43. McKinney asserts that for the bulk of her te nure, she supervised one full-time Assistant Manager, though she supervised a s econd full-time employee on occasion. Id . at 4; see also Defs.’ Mot., Ex. 1 (Aff. of Carol Shipley) (“ Shipley Aff.”) ¶ 31. Robinson supervised two Assistant Managers for all but a fi ve month period, during which time he supervised three to four Assistant Managers. See also Shipley Aff. ¶ 32. The day-to-day responsibilities of the Assistant Managers largely mirrored those of the Primary Managers. Id

. In 2006, Robinson was appointed as the Senior Primary Mana ger for his district, which encompassed the State of Maryland. Defs.’ St atement ¶¶ 57-60. As Senior Primary Manager, Robinson had additional responsibilities, such as tr aining other Primary Manage rs in his district.

Id . ¶¶ 61. He received an additional $100 pe r month as Senior Primary Manager. Id . ¶ 59. B. Relationship Between USAC and USAM USAM is owned sixty-five percent by USAC and thirty-five percent by Carol Shipley, who also serves as USAM’s president. Pls.’ Opp’n at 26; Shipley Aff. ¶ 3. USAM provides property management services to storage facilitie s owned by USAC. Shipley Aff. ¶ 6. The two entities share payroll systems, human resour ces systems, accounting employees and a common

website. Id . at 26-27. Yet the two entities have separate main offices. Id . at 26. Furthermore, the defendants assert – and the plaintiffs do not dispute – that USAC did not own the Uptown6 and Fullerton facilities, did not perform any services at the USAM facilities, di d not supervise the plaintiffs’ work and did not ha ve the authority to hire or fire the plaintiffs. Shipley Aff. ¶¶ 12-13; see Pls.’ Opp’n at 25-27. C. Procedural History Plaintiff McKinney commenced th is action individually and on behalf of others similarly situated on February 25, 2008, see generally Compl., and filed an amended complaint on June 13, 2008, alleging that the defendants failed to pa y her overtime wages as required by the FLSA and failed to pay her for her accrued but unused vacation time as required by D.C. Code § 32- 1001, 1 see generally Am. Compl. On September 26, 2008, pl aintiff Robinson filed a Consent to Participate in this collective action. See Consent to Participate. On November 10, 2008, the court granted the plaintiff McKinney’s motion to f acilitate the identification and notification of additional potential plaintiffs and ordered th e defendants to produce a list of all Primary Managers at facilities identified by the plaintiffs. Order (Nov. 10, 2008). The defendants filed

the instant motion for summar y judgment on January 2, 2009. The plaintiffs opposed the defendants’ motion on February 20, 2009, and plaintiff McKinney cross-moved for partial summary judgment on the defendants’ claim that she falls within the “executive” exemption to FLSA’s overtime requirements.

1 The defendants assert – and the plaintiffs do not di spute – that plaintiffs’ counsel indicated that they would not pursue the claim for unused vacation pay. See Defs.’ Mot. at 1 n.1; see generally Pls.’ Mot.; Pls.’ Reply. Accordingly, the cour t grants summary judgment to the defendants on this claim.7 III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment Summary judgment is appropria te when “the pleadings, th e discovery and disclosure materials on file, and any affidav its show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” F ED

. R. C IV

. P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Diamond v. Atwood , 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are “m aterial,” a court must look to the substantive

law on which each claim rests. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A “genuine issue” is one whose resolution could es tablish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex , 477 U.S. at 322; Anderson , 477 U.S. at 248. In ruling on a motion for summary judgment , the court must draw all justifiable inferences in the nonmoving party’s favor and ac cept the nonmoving party’s evidence as true.

Anderson , 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evid ence” in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonm oving party, a moving party may succeed on summary judgment. Id. The nonmoving party may defeat summary j udgment through factual representations made in a sworn affidavit if he “support[s] hi s allegations . . . with facts in the record,” Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray , 9 F.3d 150, 154 (D.C. Cir. 1993)), or provides “direc t testimonial evidence,” Arrington v. United States , 473 F.3d 329, 3388 (D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene , 164 F.3d at 675. B. Legal Standard for FLSA Overtime Exemptions The FLSA requires that employers pay thei r employees one and a half times their “regular rate” for work in excess of forty hour s per week, unless they are subject to certain enumerated exemptions. 29 U.S.C. § 207(a). As relevant here, the FLSA exempts from coverage those individuals “empl oyed in a bona fide executive, ad ministrative, or professional capacity.” Id . § 213(a). These overtime exemptions ar e “affirmative defense[s] on which the employer has the burden of proof.” Corning Glass Works v. Brennan , 417 U.S. 188, 196-97 (1974); accord Am. Fed’n of Gov’t Employees, AFL-CIO v. Office of Pers. Mgmt ., 821 F.2d 761, 771 (D.C. Cir. 1987) (noting that “the burden is on the employer to demonstrate the employee is in fact exempt”). The employer’s claim that an exemption applies “must be proved by clear and affirmative evidence or the employee must be given coverage under the Act.” Roney v. United

States , 790 F. Supp. 23, 26 (D.D.C. 1992); see also Thomas v. Speedway SuperAmerica, LLC , 506 F.3d 496, 501 (6th Cir. 2007) (citing Roney , 790 F. Supp. at 26) (noting that “clear and affirmative evidence” requirement does not impos e on the employer any heightened evidentiary burden). It is well-settled that “exemptions from the Act are narrowly c onstrued against the employer in order to further Congress’s goal of a ffording broad federal government protection.” Hunter v. Sprint Corp ., 453 F. Supp. 2d 44, 50-51 (D.D.C. 2006) (citing Mitchell v. Ky. Fin. Co ., 359 U.S. 290, 295 (1959)); Thomas , 506 F.3d at 501 (noting that th e FLSA exemptions “are to be narrowly construed against the employe rs seeking to assert them”) (quoting Arnold v. Ben9 Kanowsky, Inc ., 361 U.S. 388, 392 (1960)); Nicholson v. World Bus. Network, Inc. , 105 F.3d 1361, 1364 (11th Cir. 1997). The exemptions are to be applied “only to those clearly and unmistakably within the terms a nd spirit of the exemption.” Morgan v. Family Dollar Stores,

Inc ., 551 F.3d 1233, 1239 (11th Cir. 2008); Clements v. Serco, Inc ., 550 F.3d 1224, 1227 (10th Cir. 2008) (noting that the employer “bears the burd en of proving that the [e]mployees fit plainly and unmistakably within the exemption’s terms”) (internal quotations omitted). The Department of Labor (“DOL”) has prom ulgated detailed regulations outlining the criteria for the application of the FLSA exemptions. See 29 C.F.R. §§ 541.100 et seq . “The Department of Labor regulations are entitled to judicial deference and are the primary source of guidance for determining the scope of exemptions to the FLSA.” Clements , 530 F.3d at 1227 (quoting Ackerman v. Coca-Cola Enters ., 179 F.3d 1260, 1264 (10th Cir. 1999)).

At issue here are the “administrative” a nd “executive” exemptions to the overtime requirement. See 29 U.S.C. § 213(a)(1). The DOL regulations define an “administrative” employee as an individual: (1) Compensated on a salary or fee basis at a rate of not less th an $455 per week . . . ; (2) Whose primary duty is the performance of office or non-manual work directly related to the management or general bus iness operations of the employer; and (3) Whose primary duty includes the exerci se of discretion and independent judgment with respect to ma tters of significance. 29 C.F.R. § 541.200. The regulations provide that an “executive” employee is one: (1) Compensated on a salary basis at a rate of not less than $455 per week . . . ; (2) Whose primary duty is management of th e enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;10 (3) Who customarily and regularly directs the wo rk of two or more other employees; and (4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to th e hiring, firing, advancement, promotion or any other change of status of other employ ees are given particular weight.

Id . § 541.100. C. The Court Denies Summary J udgment to the Defendants on their Assertion of the Administrative Exemption The defendants contend that both plaintiffs fa ll within the “administrative” exemption to the statutory overtime requirement. See Defs.’ Mot. at 11-26. The defendants assert that the plaintiffs were the highest-rank ing managers at their respectiv e locations, were free from daily supervision by superiors and were responsible for the overall ope ration and management of their respective facilities. Id . at 16. The defendants maintain that although the plaintiffs spent a small portion of their time performing manual work, th eir primary duties involved the management of each facility, which entailed meeting leasing goals, developing and implementing marketing strategies and supe rvising staff. Id . at 17-20. In discharging these responsibilities, the plaintiffs allegedly exercised significant discretion, as evidenced by their ability to choose how to deal with delinquent accounts and how to present and maintain th eir properties to attract new

customers. Id . at 23-24. The plaintiffs sharply dispute the defendant s’ characterization of their primary job responsibilities. See Pls.’ Opp’n at 6-20; 23-25. The plai ntiffs assert that they devoted approximately eighty to ninety percent of th eir time to “non-management” tasks such as customer sales and service, data entry and custodial tasks. Id . at 7. The plaintiffs point out that they had few subordinates working under them, and that these employees had virtually the same responsibilities and salari es as the plaintiffs. Id . at 2-4. Moreover, the plaintiffs assert that nearly every aspect of their job was governed by the detailed proce dures set forth in the11 Operations Manual, which greatly limited the plai ntiffs’ discretion in discharging their daily responsibilities. See id . at 12-18. As previously noted, the plaintiffs must sa tisfy three criteria for the administrative exemption to apply. See 29 C.F.R. § 541.200. With respect to the first criterion, there is no dispute that the plaintiffs were paid well above the $455 pe r week salary threshold. See Defs.’ Mot. at 3; see generally Pls.’ Opp’n; Pls.’ Reply. The re maining two criteria are addressed in

turn below. 1. There Exists a Question of Fact as to Whether the Plaintiffs’ Primary Duty Was the Performance of Work Directly Related to the Management or General Business Operations of the Employer The DOL regulations provide that duties “direct ly related to the management or general business operations of the employer” are those “directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.” 29 C.F.R. § 541.201. Examples of such duties include “work in functio nal areas such as: tax; finance; accounting; budgeting; auditing; insurance; quality contro lling; purchasing; procurement; advertising; marketing . . . ; personnel management . . . ; [and] legal and regulatory compliance.” Id

. Whether a particular duty is administrative pres ents a legal question, whereas the amount of time devoted to administrative duties, and the signific ance of those duties, ar e questions of fact. Reich v. Avoca Motel Corp ., 82 F.3d 238, 240 (8th Cir. 1996) (citing Icicle Seafoods, Inc. v. Worthington , 475 U.S. 709, 714 (1986)). In the instant case, the plaint iffs’ duties encompassed a divers e range of responsibilities.

See Defs.’ Mot. at 4; Pls.’ Opp’n at 2-4. Many of these responsibilit ies, such as processing rental applications and payments, entering data into a computer program to generate daily reports,12 cleaning bathrooms and hallways and perf orming other routine maintenance, see Pls.’ Opp’n at 2-3, were plainly not directly related to management or general business operations, see 29 C.F.R. § 541.201. Other responsibilities, such as supervising staff, formulating marketing strategies, recommending capital improvements a nd, in the case of Robinson, training other Primary Managers, see Pls.’ Opp’n at 4, fall squarely with in the type of duties listed in the applicable regulation, see 29 C.F.R. § 541.201; see also id . § 541.203. Thus, the analysis of this cr iterion turns on which category of responsibilities constituted the plaintiffs’ “primary” duty. See id . § 541.200. The DOL regulations define the term “primary duty” as “the principal, main, major or most important duty that the employee performs.” Id . § 541.700. The “major emphasis” of the inquiry is “on the character of the employee’s job as a

whole.” Id . The regulation lists the following factors as relevant to the “primary duty” analysis: the relative importance of the exempt du ties as compared w ith other types of duties; the amount of time spent perform ing exempt work; the employee’s relative freedom from direct supe rvision; and the relations hip between the employee’s salary and the wages paid to other em ployees for the kind of nonexempt work performed by the employee.

Id . Although “[t]he amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primar y duty of an employee,” time spent “is not the sole test, and nothing in this se ction requires that exempt employ ees spend more than 50 percent of their time performing exempt work.” Id

. a. The Relative Importance of the Exempt Duties The first factor listed in the applicable re gulation – the relative importance of the exempt duties – requires the court to “compare the importa nce of the plaintiff’s [exempt] duties with the importance of her [non-exempt] duties, keeping in mind the end goal of achieving the overall13 success of the company.” See Thomas , 506 F.3d at 505. 2 Numerous courts have held that onsite managers responsible for the day-to-day oper ations of a branch location within a multi-store business have management-related ac tivities as their primary duty. See id . at 504 (holding that a gas station manager’s primary duty was management , despite the fact that the bulk of his time was devoted to custodial tasks, because the gas station would cease to function unless he discharged his managerial responsibilities); Baldwin v. Trailer Inns, Inc ., 266 F.3d 1104, 1114- 15 (9th Cir. 2001) (holding that th e managers of a recreational vehi cle park had as their primary duty management because their “principal value to [the employer] was directing the day-to-day operations of the park even though they perf ormed a substantial amount of manual labor”); Moncrief v. Daro Realty, Inc ., 2005 WL 1119794, at *6-7 (D.D.C. Apr. 28, 2005) (holding that the on-site managers of an apartment complex were “administrative” employees because they managed employees, hired staff and made the day- to-day decisions regarding the management of their facilities). Thus, the fact that the plainti ffs were the highest ranking employees at each of their facilities and were responsible for the day-to-day operations of their facilities, Defs.’ Mot. at 17-18, suggests that their prim ary duty involved the performance of exempt responsibilities directly related to the management of the business.

Yet as the court in Thomas observed, the mere fact that an employee was “in charge” does not necessarily mean that her primary dut y involved the exercise of management-related responsibilities. Thomas , 506 F.3d at 503; cf. Rodriguez v. Farm Stores Grocery, Inc ., 518 F.3d 1259, 1263 (11th Cir. 2008) (rejecting the employer’s argument that store managers assigned to separate locations categorically fall within th e executive exemption because the regulation calls for a fact-intensive primary duty inquiry). Rather, in Thomas , the court weighed the relative

2 Although Thomas concerned the application of the “executive” exemption rather than the “administrative” exemption, both exemptions shar e the same definition of “primary duty” set forth in 29 C.F.R. § 541.700. See 29 C.F.R. §§ 541.100(b), 541.200(b).14 importance of the plaintiff’s exempt and non-exem pt duties to the functio ning of the gas station and concluded that the plainti ff’s exempt duties predominated: If [the plaintiff] failed to perform her nonmanagerial duties, her Speedway station would still function, albeit much less effectiv ely. After all, most of us – even if unwillingly – have visited and spent our mone y at filthy gas stations with sparsely stocked shelves. If, however, [the pl aintiff] failed to perform her managerial duties, her Speedway station would not f unction at all because no one else would perform these essential tasks. Surely, a gas station cannot operate if it has not hired any employees, has not scheduled any employees to work, or has not trained its employees on rudimentary procedures such as operating the register. We therefore conclude that [t he plaintiff’s] managerial duties were much more important to Speedway’s success th an her non-managerial duties.

Id . at 505. In the instant case, it is far le ss clear that the plaintiffs’ ma nagerial responsibilities were more important to the success of their employer’s business operations th an their non-managerial responsibilities. The defendants have not demons trated that the Uptown and Fullerton facilities would have ceased to function had the plaintiffs neglected to hire and train their minimal staff (whose duties were allegedly identi cal to their own), present a “w ish list” of capital improvement to their District Managers or formulate mark eting strategies (which allegedly comprised a negligible percentage of their daily responsibilities). See generally Defs.’ Mot.; Defs.’ Reply. Indeed, given the few employees who staffed each f acility as well as the nature of the employer’s business, see Defs.’ Mot. at 17-18, it seems at least as li kely that the storage facilities would have ceased to function had the plaintiffs shirked th eir non-exempt duties to answer phone calls from potential customers, log payments into the so ftware reporting program, assess late fees and perform their custodial and maintenance tasks, see Defs.’ Mot. at 18. Thus, on the facts presented in the parties’ briefs, the first f actor does not weigh in favor of granting the

defendants’ motion.15 b. The Amount of Time Spent on Non-Exempt Tasks Turning to the second factor – the amount of time spent on non-exempt tasks – the plaintiffs have asserted that they devoted eighty to ninety percen t of their work time to custodial, maintenance, sales and customer service tasks unrelated to management or general business operations. Pls.’ Opp’n at 1-2. These assertions, supported by the plaintiffs’ sworn testimony,

see McKinney Aff. ¶ 3; Robinson Dep. at 142-43, 3 must be accepted on summary judgment, see Baldwin , 266 F.3d at 1114 (noting that the court “must accept on summary judgment the [plaintiffs’] assertion, supported by the record, that they spent more than fifty percent of the time on manual tasks that are plainly nonexempt”). The DOL regulations, however, expressly state that an employee need not spend more than half his or her time on exempt tasks for those to constitute his or her primary duty. See 29 C.F.R. § 541.700; cf

. Baldwin , 266 F.3d at 1114 (noting that the executive exemption does not fail “merely because the proportion of time spent on exempt managerial tasks is less than fifty percent, where, as here, managerial duties ar e packaged in employment with non-managerial tasks, and the management function cannot read ily and economically be separated from the nonexempt tasks”) (citing Donovan v. Burger King Corp ., 672 F.2d 221, 226 (2d Cir. 1982) (observing that “one can still be ‘managing’ if one is in ch arge, even while physically doing something else”)). Accordingly, th ere remain significant issues of fact with respect to the second factor of the “primary duty” analysis. c. Freedom From Direct Supervision The third factor – the plaintiffs’ freedom fr om direct supervision – also yields an inconclusive result on the facts presented. The de fendants assert that the plaintiffs did not have

3 Although the defendants suggest that the plaintiffs’ estimations of the time they spent on various duties lack support in the record, see Defs.’ Reply at 17, they offer no evidence refuting the plaintiffs’ estimations, see generally id

.16 daily supervision by their District Managers, who visited the property only once or twice a month. Defs.’ Mot. at 16; Defs.’ Reply at 19- 20. Yet the frequency w ith which the District Managers physically vis ited each facility is no t decisive of their leve l of supervision, as the defendants acknowledge that the pl aintiffs “could contact their supervisors by phone or email,” Defs.’ Reply at 19, and have introduced no eviden ce suggesting that the District Managers did not keep in close contact with their Primary Managers through these methods, see generally Defs.’ Mot.; Defs.’ Reply. To the contrary, the Position Description offered by the defendants plainly states that each Primary Manager was required to have “ [f]requent and regular contacts with [his or her] supervisor [and] Home Office Personnel.” Po sition Description at 2. In addition, Primary Managers were re quired to obtain prior approval from their District Managers for any discounts, specials or promotions, see Operations Manual at 45, for making petty cash purchases above $50, see id . at 69, for any action not listed in the Operations Manual to resolve a customer complaint, see id . at 16, or for the waiver of any la te fee or creation of a customer payment plan, see Pls.’ Dep. at 91, undermining the defenda nts’ assertion th at the Primary Managers had only infrequent contacts with th eir District Managers. Accordingly, the court concludes that there remain significant issues of fact with respect to the plaintiffs’ freedom from direct supervision. d. Salary Comparison to Non-Exempt Employees The final factor in the primary duty inquiry involves a comparison of the plaintiffs’

salaries to the salaries of their non-exempt employees. 29 C.F.R. § 541.700. Although the defendants argue that it is improper to perform the salary comparison on a per hour basis, Defs.’ Reply at 21, the sole authority the defendants re ly on for that propositi on supports precisely the opposite conclusion, see Thomas , 506 F.3d at 508-09. The court in Thomas began by taking the17 plaintiff’s weekly salary and dividing that amount by the numbe r of hours she allegedly worked per week to calculate the plai ntiff’s hourly pay rate of $10.44. Id . Noting that it was “surprising” that “neither pa rty . . . established the hourly wage paid to the subordinate employees,” the court accepted th e plaintiff’s allegation that he r subordinates earned $7.00 per

hour. Id . The court concluded that the plaintiff’ s hourly pay rate of $10.44 was approximately thirty percent higher than that earned by her subordinates, a nd that that disparit y was sufficient to indicate that the plaintiff’s primary duty was to perform exempt tasks. Id

. McKinney asserts that her full-time Assi stant Manager, Stephany Fludd, was paid between $31,500 and $35,000 during the relevant peri od. Pls.’ Aff. ¶¶ 4-7. Assuming a forty hour work week and fifty-two work weeks per year, Fludd’s hourly pay rate was between $15.14 and $16.83. McKinney’s annual salary ranged from approximately $34,500 to $42,600 over the same period. Defs.’ Statement ¶¶ 9-12. In a ddition, McKinney was provided with an apartment with an estimated rental value of $900 per m onth and estimated monthly utilities of $50 per month, which resulted in an additional bene fit of $11,400 per year. Avery-Pugh Decl. ¶ 13. Assuming that McKinney worked sixty hours per week, 4 her hourly pay rate was between $14.71 and $17.31. Thus, on an hourly basis, there is pr actically no discrepancy between the salaries earned by McKinney and her subordinate. Turning to plaintiff Robinson, the court notes that Robinson’s subordinates earned approximately $22,800 per year, or – assuming a forty hour work week – $10.96 per hour. See Pls.’ Opp’n at 4. Robinson’s hourly pay rate, assuming that he wo rked forty-five hours per week as he has alleged, ranged between $14.53 and $15.38. See Defs.’ Statement ¶ 70; Pls.’ Opp’n at 24 n.5. As a result, Robinson earned approximately twenty-five to twen ty-nine percent more than his Assistant Managers. This disparity pr ovides some support for the defendants’ assertion

4 McKinney asserts that she typically worked in excess of sixty hours per week. Pls.’ Opp’n at 2.18 that Robinson’s primary duty was directed to management-related responsibilities. See Thomas , 506 F.3d at 509 (holding that a thirty percent sa lary gap on a per hour basis was a significant disparity).

e. Conclusion With respect to McKinney, the court is not persuaded that any of the “primary duty” factors cuts decisively in the defendants’ favor. Accordingly, the defendants have failed to demonstrate that McKinney’s primary duty was di rectly related to the management or business operations of the employer. As for Robinson, the fact that he earned significantly more than his non-exempt subordinates provides some support for the de fendants’ invocation of the administrative exemption. Yet given the inconclusi veness of the other three factors, as well as the fact that the FLSA exemptions are to be construed narrowly a nd applied only to those unmistakably within their parameters, see Morgan , 551 F.3d at 1239, the court determines that the salary disparity alone would not preclude a reasonable jury from concluding that Robinson’s primary duty was not directly related to the management of th e employer’s business. The authorities relied on by th e defendants do not persuade th e court to reach a different

result. See Defs.’ Mot. at 11-13. The ap artment building managers in Moncrief v. Daro Realty,

Inc ., a decision cited by the defendants, supervised sixteen to twenty employees, interviewed and hired a wide variety of employees, such as de sk clerks, porters and maintenance men, had the power to terminate their subordinates if nece ssary, handled eviction proceedings and had the authority to determine what repairs were needed and to hire outside cont ractors to make those repairs. 2005 WL 1119794, at *2-3. Furthermore, there is no indi cation that the plaintiffs in Moncrief spent a significant portion of their work time on custodial or non-managerial duties.19 See generally id . Similarly, the motel managers in Reich v. Avoca Motel Corp . were responsible for interviewing, hiring, managing and training housekeepers and desk clerks and “would often make suggestions and recommendations to [the owner] concerning the method of operation of the motels.” 82 F.3d at 239. Furthermore, alt hough the motel managers spent a portion of their time on custodial and non-managerial tasks, ther e is no indication that these tasks comprised a regular or central part of their responsibilities. See id . (observing that “[t]he time spent doing laundry, taking reservations, and checking in guest s was proportional to the volume of business – more when it was good and less when it was slow”). Indeed, Moncrief and Avoca Motel are no more on point than Jarrett v. ERC Properties,

Inc ., 211 F.3d 1078 (8th Cir. 2000). The employer in Jarrett sought to overturn a jury verdict that the manager of an apartment complex was not an administrative em ployee for purposes of

FLSA. Id . at 1080. The Circuit noted that the plaintiff’s duties included: collecting applications from prospective tenants; veri fying references and other application information; contacting potential applicants regarding apartment availability; preparing ‘reports,’ which she described as filling in blanks on printed forms; writing receipts and verifying rent payments; performing minor repairs and getting help for repairs she could not do; picking up trash; maintaining the grounds; cleaning the laundry room , bathrooms, and community room; locking and unlocking common rooms accordi ng to a schedule determined by her supervisor; and forwarding invoices to [her employer] for payment.

Id . at 1082. Noting that “[t]hese tasks resemb le[d] the work of non-exempt ‘bookkeepers, secretaries, and clerks of various kinds [who] hold the run-of-the-mine positions in any ordinary business,” the court concluded that the jury’s determination that the plaintiff’s primary duty was not directly related to manageme nt or business operations to be well supported by the record. Id

. Accordingly, the court holds that a reasonabl e jury could conclude that the plaintiffs’ primary duty was not directly related to the ma nagement or general business operations of the20 employer. The court, therefore, denies summary judgment to the defendants on their assertion of the administrative exemption. 2. There Exists a Question of Fact as to Whether the Plaintiffs’ Primary Duty Included the Exercise of Discretion and Independent Judgment With Respect to Matters of Significance To fall within the executive exemption, the employee’s primary duty must also involve

the exercise of discretion and independent judgment with respect to matters of significance. 29 C.F.R. § 541.200. The DOL regulations provide a l ong list of factors rele vant to this inquiry, including: whether the employee has the authority to formulate, affect, interpret, or implement management policies or operating practices; whet her the employee has the authority to commit the employer in matters that have a significant financial impact; whether the employee has the authority to waive or deviate from established policies and procedures without prior approval; and whether the employee has authority to ne gotiate and bind the company on significant

matters. Id

. The DOL regulations provide that the “exerci se of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific

standards described in manua ls or other sources.” Id . Thus, the regula tions clarify that [t]he use of manuals, guidelines or othe r established procedures containing or relating to highly technical, sc ientific, legal, financial or other similarly complex matters that can be understood or inte rpreted only by those with advanced or specialized knowledge or skills does not preclude exemption under [29 U.S.C. § 213(a)(1)]. Such manuals and procedures provide guidance in a ddressing difficult or novel circumstances and thus use of su ch reference material would not affect an employee’s exempt status. The [§ 213( a)(1)] exemptions are not available, however, for employees who simply a pply well-established techniques or procedures described in manuals or other sources within closely prescribed limits to determine the correct response to an inquiry or set of circumstances.

Id . § 541.704.21 Like other Primary Managers, the plaintiffs were given an Operations Manual, which provided detailed instructions and procedures for the completion of the majority of the everyday tasks performed by the Primary Manager. See generally Operations Manual. For instance, with respect to sales and customer service, the Op erations Manual addres sed how to greet the

customer, 5 what questions to ask, the steps involved in making the “sales pitch,” and how to

close the sale. Id . at 5-7. The Operations Manual also laid out the actions that a Primary Manager could take in response to a customer co mplaint, such as reimbursing a customer for his or her dry cleaning expenses for clothing damaged by a leaky roof. Id . at 16. The Primary Manager’s authority to provide compen sation, however, was limited to $100. Id . at 17. If the actions set forth in the Operations Manual did not resolve the complaint, the matter was referred to a District Manager. Id . at 16. The Operations Manual also detailed the step-by-step procedures for collecting rental payments, sending out late notices 6 and processing foreclosures.

Id . at 19-27. The plaintiffs assert that the Oper ations Manual precluded a ny deviations from the procedures with respect to la te payments and foreclosure ac tivities. Pls.’ Opp’n at 13. In addition, the Operations Manual detailed the Primary Manager’s daily, weekly and monthly reporting requirements. Operations Manual at 27-30. For instance, the Operations Manual provided step-by-step in structions on the preparation of computer-generated “Daily Financial Reports” reflecting the financial transactions that occurred each day. Id . at 28. The Primary Manager was also responsible for ge nerating a weekly “Walk-Thru Report,” which

5 The Operations Manual provides that “Good morning/afternoon, thank you for calling ___________, this is __________, how may I help you?” is the “required greeting at all United Stor-all owned and operated facilities . . . . Let the phone ring twice, pick up a Customer Lead Card, smile, and let the caller hear your passion.” Operations Manual at 5.

6 The plaintiffs note that late notices were comput er-generated and automatically sent out to the client, and that late fees were automatically ap plied to accounts by the computer system. Pls.’ Opp’n at 13.22 reflected the status of the facility and was pulled automatically by the District Manager each

week. Id . at 29. The Operations Manual also detailed the Prim ary Manager’s responsibilities with respect to the finances of each facility. Id . at 68-71. The Primary Manager assisted the District Manager in developing an annual operating budget by review ing rental activity for the prior year, calling vendors for any cost increases and providing a list of potential capital improvements. Id . at 68- 69. Each facility was provided a petty cash fund of at least $300 and the Primary Manager was responsible for ensuring th at all petty cash receipts were properly itemized. Id . at 69. Purchases over $50 required prior approval fr om the District Manager. Id

. The Operations Manual set forth the proce dures for the routine maintenance of each facility. Id . at 37-41. For instance, the Operatio ns Manual provided a recommended list of cleaning items to be kept on a maintenance cart 7 and set forth a precise cleaning schedule for each area of the facility. 8 The Operations Manuals further provided that “day to day maintenance is the responsibility of both the Primary Manager and Assistant Managers” and that “USAM encourages facility personnel to complete minor repairs.” Id . at 39-40. The Operations Manual thus greatly limite d the discretion and independent judgment exercised by Primary Managers, both by prescribi ng detailed procedures for the completion of nearly all day-to-day tasks and by requiring that Primary Managers defer to District Managers on most matters of significance to the business. See generally id

.

7 “Use a four wheel cart that can be easily pushed or a golf cart. There should be brackets and supports to hold everything properly in the cart.” Id . at 37.

8 “Restrooms are to be cleaned daily,” “[h]allways and stairs should be inspected daily and thoroughly cleaned (mopped) at least once a week” and “[w]indows and doors are cleaned at least once a month.” Id . at 38.23 The defendants rightly point out that the Oper ations Manual did not dictate every aspect of the Primary Manager’s duties. See Defs.’ Reply at 25-27. For instance, the defendants note that the Operations Manual did not provide a script that the pl aintiffs were required to follow when communicating with a delinquent customer , and obviously did not address every possible question or concern that could be raised by a potential or existing customer. 9 Id . Indeed, it is

clear that the existence of an operating manual does not categorica lly eliminate the existence of meaningful employee discretion. Cf. Donovan , 675 F.2d at 521. Nonetheless, the plaintiffs have at least rais ed an issue of fact as to whether they truly exercised discretion and independent judgment w ith respect to matters of importance to the business in light of the limitations imposed by the Operations Manual. Cf. Morgan , 551 F.3d at 1249-51 (concluding that store managers did not exer cise managerial discretion in part because the store manual strictly prescr ibed the manner for completing practically all tasks assigned to them). Accordingly, the defendant s’ motion with respect to their assertion of the administrative exemption fails on this ground as well.

D. The Court Denies Summary Judgment to the Defendants and Grants Summary Judgment to Plaintiff McKinney on the Issue of the Executive Exemption The defendants also argue that the plainti ffs fall within the “executive” exemption to FLSA’s overtime requirements. See Defs.’ Mot. at 27-31. The defendants point out that the plaintiffs were the highest rank ing employees at their respective facilities, and were responsible for supervising and training employees. Id . at 27-28. The defendants also contend that in one instance, plaintiff McKinney reduced an employee from full-time to part-time status because he

9 The defendants suggest that plaintiff McKinney sp earheaded the idea to rent parking spaces at her facility to a nearby rental car business. Defs.’ Mot. at 18. The plaintiffs contend that in reality, the rental car company approached McKinney about renting some spaces, and that McKinney took the matter to the facility owners, who made th e decision to enter into the agreement. Pls.’ Opp’n at 16-17.24 was unable to manage his workload. Id . at 28-29. In addition, the defendants assert that the plaintiffs were responsible for “ensuring compliance with state and local laws” when auctioning off property in connection with a nonpaying account. Id . at 29. The plaintiffs maintain, as they did in c onnection with “administrative” exemption, that their primary duty involved customer servi ce and maintenance tasks unrelated to the management of the business. See Pls.’ Opp’n at 21. In additio n, plaintiff McKinney asserts that she is entitled to summary judgment on the defe ndants’ assertion of the executive exemption because she did not customarily and regularly di rect the work of two or more employees, as required under the DOL regulations. Id . at 21-23. Specifically, McKinney asserts that she only supervised two full-time employees for 29.5 week s of the 150 week claim period, or nineteen percent of the claim period. Id . at 22. The defendants oppose plaintiff McKinney’s partial motion for summary judgment, arguing that even if McKinney di d not regularly superv ise two or more employees, she had the authority and budget to hire a second employee but chose not to do so. Defs.’ Reply at 29-30. The defendants, however, do not dispute that McKinney only supervised a second full-time employee for nineteen percent of the claim period. See generally id

. As previously noted, to fall within the executive exemption, the plaintiff must be compensated on a salary basis at a rate of not le ss than $455 per week, have as his or her primary duty the management of the enterprise, customarily and regularly direct the work of two or more other employees and have the authority to hire or fire other employees or make suggestions as to such issues that have particular weight. 29 C.F.R. § 541.100. There is no dispute that the plaintiffs satisfy the salary threshold. See Pls.’ Opp’n at 20. Nor do the plaintiffs contest the fact25 that their hiring and firing reco mmendations received deference fr om their District Managers.

See id . at 20-25. The two remaining criter ia are addressed in turn below. 1. There Exists a Question of Fact as to Whether the Plaintiffs Had as Their Primary Duty the Management of the Business The DOL regulations provide that the term “management” includes, but is not limited to,

activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directi ng the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficien cy for the purpose of recommending promotions or other cha nges in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees . . . planning and controlling the budget; and monito ring or implementing legal compliance measures. 29 C.F.R. § 541.102. The term “primary duty” has the same definition in the executive exemption context that it does in the administrative exemption context, and refers to the “principal, main, major or most import ant duty that the employee performs.” Id . § 541.700. As in the administrative exemption context, the am ount of time spent on management tasks is not dispositive of whether an indivi dual’s “primary duty” involved management of the business. Id

. Rather, the court should consider “the relative importance of the ex empt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervisi on; and the relationship betwee n the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.” Id

. As discussed above, the plaintiffs have raised an issue of fact as to whether their primary duty involved the performance of non-exempt activi ties – such as customer service, data entry

and custodial and maintenan ce tasks – rather than ma nagement-related duties. See supra Part III.C.1. Indeed, the plaintiffs have asserted th at they spent a marginal amount of their time26 supervising or hiring subordinates , that there was little difference between their responsibilities and those of their subordinates, that they had lim ited authority and frequent contacts with their supervisors and that the vast majority of thei r time was spent on routinized tasks involving no managerial discretion. 10 Id . The defendants have presented lit tle evidence that activities such as interviewing and selecting empl oyees, setting or adjusting ra tes of pay or hours of work, appraising employees’ productivity and e fficiency or disciplining employees, see 29 C.F.R. § 541.102, predominated among the plaintiffs’ job re sponsibilities, in te rms either of time expended or importance to the employer, see generally Defs.’ Mot; Defs.’ Reply. Accordingly,

because the defendants have failed to demonstrate th e absence of a genuine i ssue of material fact as to the nature of the plaintiffs’ primary dut y, the court denies summary judgment to them on the executive exemption. 2. Plaintiff McKinney Did No t Customarily and Regularly Direct the Work of Two or More Employees During the Claim Period and is Therefore Entitled to Summary Judgment on the Executive Exemption Claim The phrase “customarily and regularly” mean s “a frequency that must be greater than occasional but which, of course, may be less than constant.” 29 C.F.R. § 541.701. Courts have declined to set bright-line rules regarding what constitutes “customarily and regularly.” See Morgan , 551 F.3d at 1276. Yet, courts have typical ly construed the regulation to require an individual to supervise tw o or more full-time employees at leas t seventy-five to eighty percent of

the time. See id . at 1275 (holding that the trial court di d not err in requiring an eighty percent threshold for the customarily and regularly” requirement); Sec’y of Labor v. Daylight Dairy Products, Inc ., 779 F.2d 784, 788 (1st Cir. 1985) (affirming the trial court’s determination that

10 Although Robinson indicates that he spent fifteen percent of his time on “administrative management/facility management” compared to ten percent for McKinney, Pls.’ Opp’n at 1-2, the court is not persuaded that this five percent di fference obviates the existence of a genuine issue of material fact as to Robinson’s primary duty.27 supervising two or more employees seventy-six pe rcent of the time falls short of the customarily and regularly requirement); Perez v. Radioshack Corp ., 552 F. Supp. 2d 731, 741-42 (N.D. Ill. 2005) (holding that an eighty perc ent standard “comports with th e regulatory direction that ‘customary and regular’ signifies a frequency gr eater than occasional but less than constant”); cf. Murray v. Stuckey’s, Inc ., 50 F.3d 564, 568 (8th Cir. 1995) (re jecting the seve nty-six percent ruling in Daylight Dairy and concluding that supervision of two full-time employees 98.2% of the time easily satisfies the standard); Jackson v. Go-Tane Servs., Inc ., 56 Fed. Appx. 267, 272 n.8 (7th Cir. 2003) (stating that “where the supe rvised employees work ‘full time’ only 67% of the time over the relevant time period, such amount of supervision falls short of the ‘regular and customary’ supervision of full-time employees”). There is no dispute that Robinson customarily and regularly supervis ed the work of two or more full-time employees. Pls.’ Opp’n at 20. Yet there is also no dispute that McKinney supervised two full-time employees onl y nineteen percent of the time. See id . at 22; see generally Defs.’ Reply. Although the defendants cont end that the “unusual circumstances” of this case, in which McKinney c ould have hired a second full-time employee for the duration of the claim period but did not do so, warrant a “les s rigid application” of the customarily and regularly requirement, Defs.’ Reply at 29-30, a determination that McKinney customarily and regularly directed the work of two or more fu ll-time employees, when she had a second full-time employee less than twenty percent of the time, w ould represent a major departure from the plain language of the regulation as a pplied by nearly every court to a ddress the issue. No reasonable jury could conclude that McKinne y customarily and regularly direct ed the work of two or more full-time employees. Therefore, the court gr ants summary judgment to her on the executive exemption.28 E. There Exists a Question of Fact as to Whether USAC Stood in a Joint Employment Relationsh ip to the Plaintiffs

Defendant USAC contends that USAM was th e plaintiffs’ sole employer and that USAC

should therefore be dismissed from this lawsuit. Defs.’ Mot. at 10-11. The plaintiffs respond that USAC and USAM constituted an integrated bus iness enterprise and that as a result, both can

be held liable for violations of FLSA’s overtime protections. Pls.’ Opp’n at 25-27. Liability under FLSA’s overtime provisions ex ists only if there is an employer-employee relationship. See 29 U.S.C. § 207; Ivanov v. Sunset Pools Mgmt. Inc ., 567 F. Supp. 2d 189, 194 (D.D.C. 2008) (holding that a defendant could not be held liable for overtime violations because the undisputed facts demonstrated that it was not the plaintiffs’ employer). An individual may, however, have a joint employ ment relationship with more than one employer. See 29 C.F.R. § 791.2. The DOL regulations provide that “all joint employers are responsible, both individually and jointly, for compliance with all of the applicab le provisions of the act, including the overtime provisions, with respect to the entire em ployment for the particular workweek.” Id

. The regulations further provide that [w]here the employee performs work whic h simultaneously benefits two or more employers, or works for two or more em ployers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.29 Id . (emphasis added); see also Chao v. A-One Med. Servs., Inc. , 346 F.3d 908, 915-16 (9th Cir. 2003) (holding that two entities th at both provided home health se rvices, were controlled by the

same individual and shared administrative a nd managerial personnel were not completely dissociated and therefore were joint em ployers of the plaintiff). The plaintiffs have offered evidence that USAC is a sixty-five percent owner of USAM,

that USAC and USAM are both in the business of operating self-storage f acilities and that the two entities share officers, employees, a comm on payroll system, a common human resources department and accounting personnel. Pls.’ Op p’n at 26-27. The interrelatedness of this relationship raises an issue of fact as to whether USAC and USAM were not completely disassociated such that the plaintiffs had a join t employment relationship with both entities. The defendants argue that the court should rely on the four-factor “economic reality” test to determine whether an employment relations hip existed between USAC and the plaintiffs. Defs.’ Mot. at 10-11. The “economic reality” test directs the court to consider whether the alleged employer (1) had the power to hire and fi re the employees, (2) supervised and controlled employee work schedules or conditions of employ ment, (3) determined the rate and method of payment, and (4) maintained employment records. Ivanov , 567 F. Supp. 2d at 194 (citing Morrison v. Int’l Programs Consortium, Inc ., 253 F.3d 5, 11 (D.C. Cir. 2001)). The defendants argue that because only USAM had the power to hire and fire the plaintiffs, supervised and

controlled their work schedules a nd conditions of employment, dete rmined their rate of pay and method of payment and maintained their employment records, USAM was the plaintiffs’ sole employer. Defs.’ Mot. at 11. Yet as one court has explained, the “economic reality” test “applies only to circumstances in which a company has contracted for workers who are directly employed by an intermediary30 company.” A-One Med. , 346 F.3d at 917 (holding that the rele vant regulations guide the analysis of the purported employment relationship in cases of “horizontal” joint em ployment rather than the “economic reality” test); accord Davidson v. Orange Lake Country Club, Inc ., 2008 WL 254136, at *4 n.3 (M.D. Fla. Jan. 29, 2008) (noting th at “this case involv es allegations of a ‘horizontal’ joint employment situation, and therefore the re gulatory factors guide this determination” and not the “economic reality” test). This case involves th e type of “horizontal” joint employment relationship in which the “eco nomic reality” test has been held not to be controlling. At any rate, as the authorities cited by the defendants make clear, although the

satisfaction of the traditi onal factors of the “economi c reality” test can be sufficient to establish an employment relationship, a positive finding on those four factors is not necessary to establish such a relationship. Barfield v. N.Y. City Health & Hosps. Corp ., 537 F.3d 132, 143 (2d Cir. 2008). Indeed, the court should extend the inqu iry beyond these traditio nal factors if the circumstances so require. Ivanov , 567 F. Supp. 2d at 194; Moldenhauer v. Tazewell-Pekin

Consol. Commc’ns Ctr. , 536 F.3d 640, 644 (7th Cir. 2008) (observing that although the traditional “economic reality” factors “are certain ly relevant in deciding whether an employeremployee relationship exists, it would be f oolhardy to suggest that these are the only relevant factors, or even the most important”). Unde r the circumstances of this case, it would be appropriate to consider the inte rrelationship between USAC and USAM were the court to assess the “economic reality” of the relationship between USAC, USAM and the plaintiffs. Thus, there exists a question of fact as to whether USAC wa s part of a joint employment relationship with the plaintiffs. Accordingl y, the court denies USAC’s motion for summary judgment on these grounds.31 IV. CONCLUSION For the foregoing reasons, the court denies the defendants’ motion for summary judgment and grants plaintiff McKinney’ s cross-motion for partial summary judgment. An Order consistent with this Memorandum Opinion is issued on the 21st day of September, 2009.

RICARDO M. URBINA United States District Judge