1

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_______________________________________

:

X. CHARLES LI, :

:

Plaintiff, : Civ. Action No.: 11-3589 (FLW)

:

v. : OPINION

:

RENEWABLE ENERGY SOLUTIONS, INC., :

et al., :

:

Defendant. :

_______________________________________ :

WOLFSON, United States District Judge:

X. Charles Li (“Plaintiff”) filed this action on June 22, 2011, claiming that his former 

employer, Renewable Energy Solutions, Inc. (“Renewable”), and Zoltan Kiss (“Kiss”), the 

principal of Renewable Energy Solutions (collectively “Defendants”) owe him unpaid wages 

under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.. Defendants move to 

dismiss the claim for a lack of subject matter jurisdiction, arguing that Plaintiff is not an 

“employee” under the FLSA. Plaintiff counters with a cross-motion for partial summary 

judgment on that same issue. For the reasons set forth below, both Defendants’ motion to 

dismiss and Plaintiff’s cross-motion for partial summary judgment are denied.

I. BACKGROUND

Beginning in August 1, 2005, Plaintiff, a research scientist with a Ph.D. in material 

engineering, worked as Renewable’s Director of Research and Development until October 2009, 

when he resigned from that position. Compl., ¶ 4; Li Cert., at ¶¶ 1-2. It is undisputed that 

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Plaintiff was an employee at the beginning of the relationship. At issue is whether Plaintiff 

remained an employee through the end of his relationship with Renewable, or whether he 

became an independent contractor in 2007. My ruling on Defendants’ motion to dismiss and 

Plaintiff’s cross-motion for partial summary judgment turns on this threshold question.

A. Facts

Plaintiff served as Renewal’s Director of Research and Development for materials and 

devices. Li Cert., ¶ 2. According to Plaintiff’s certification, his primary duties included setting 

up research and development facilities, performing research and related engineering duties in the 

areas of “inorganic photovoltaics, hydrogen storage in carbon nanotubes and other 

nanomaterials, and the photoluminescence of inorganic and organic materials,” as well as other 

duties Renewal deemed of importance, from time to time. Id. at ¶ 3. Plaintiff reported to 

Defendant Kiss, Renewal’s former CEO. According to Kiss, Plaintiff’s role at the beginning of 

his employment was to develop products to be marketed by Renewal. Kiss Supp. Cert., ¶ 3

Renewable initially paid Plaintiff as an employee, utilizing W-2 tax forms for 

withholding purposes. Id. at ¶ 4. As such, Plaintiff had his taxes withheld from his paycheck by 

Renewable. Id. at 4. In 2007, Renewable’s accountant, Mr. Blaise Mazzoni (“Mazzoni”), had a 

discussion with Plaintiff concerning the form of his compensation. Id. Mazzoni suggested that 

Plaintiff could be paid on a “1099 basis,” which would cause Renewable to stop withholding

Plaintiff’s taxes. Id. Mazzoni compared this type of payment to being a “consultant.” Id., See 

also Kiss Supp. Cert., at ¶ 6 (“Plaintiff chose to accept the status of an independent consultant

when the change from an employee to a consultant was first suggested to him.”) (emphasis 

added). Plaintiff agreed to the change. Li Cert., at ¶ 4. 

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After the switch, Plaintiff continued to receive the same gross salary. Id. Additionally, 

Plaintiff continued to receive medical and dental benefits through Renewable’s health plans. Id. 

However, Plaintiff was responsible for his own worker’s compensation insurance and selfemployment taxes as an independent consultant. Kiss Supp. Cert., at ¶ 5. 

The change in payment was never discussed between Plaintiff and Kiss. Id. 

Furthermore, Plaintiff never discussed any changes in his working conditions or responsibilities

with either Mazzoni or Kiss. Li Cert., at ¶ 4. According to Plaintiff, he continued to work on the 

premises, submit bi-weekly time sheets and report to Kiss as needed. Id., at ¶ 5. While Kiss 

alleges that Plaintiff was free to come and go as he pleased, Plaintiff continued to work the same 

forty hour workweek. Id., see also Kiss Supp. Cert. at ¶ 5. 

Defendants claim that Plaintiff began performing more discrete services after the change, 

including applying for grants. Id., at ¶ 3-4. Furthermore, Defendants asserts that, after the 

change in payment, Plaintiff was given specific tasks to perform, but was not supervised in 

completing those tasks. Kiss Supp. Cert. at ¶ 2. However, Plaintiff claims that his duties did not 

change after he became a consultant. Li Cert., ¶ 5. Instead, according to his certification, 

Plaintiff continued to report directly to Kiss on a weekly or as-needed basis, and was directed 

and supervised by Kiss. Id. Furthermore, Plaintiff claims that his work as a research and 

development manager “was an integral part of the business,” which was directly related to the 

development of the products the company wanted to sell. Id. at ¶ 8.

Plaintiff never invested in the company. Li Cert., at ¶ 7. Nor was he offered opportunities 

to earn bonuses or stock options. Id. Finally, according to Plaintiff, the work that he performed 

required no special skills, other than his engineering degree. Id.

B. Procedural History

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On June 22, 2011, Plaintiff filed in this Court his complaint for unpaid wages under the 

FLSA and the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.2 and 4.7, along with a breach 

of contract claim under New Jersey law. As his basis for this Court’s jurisdiction, the complaint 

asserts that there is federal diversity jurisdiction under 28 U.S.C. § 1331 as well as subject matter 

jurisdiction under the FLSA, 29 U.S.C. § 216. In lieu of an answer to the complaint, Defendants

filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of 

subject matter and diversity jurisdiction.1

II. STANDARDS OF REVIEW

As noted, Defendants’ central subject matter 

jurisdiction argument is that Plaintiff is not an “employee” as that term is defined by the FLSA. 

Following Defendants’ filing, Plaintiff filed his cross-motion for partial summary judgment on 

the employee question. The Court now rules upon both motions.

A. 12(b)(1) Standard

A party may move for dismissal pursuant to Rule 12(b)(1) based on lack of subject matter 

jurisdiction. “When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff 

must bear the burden of persuasion.” Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 191 

n.4 (3d Cir. 2011) (quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.

 1 Defendant argues that there is no diversity jurisdiction under 28 U.S.C. § 1331 because 

the amount in controversy is under the diversity statute’s jurisdictional requisite of $75,000. The 

complaint asserts that Defendant owes Plaintiff $27,884.22 in wages. In addition to these 

compensatory damages, Plaintiff further seeks reasonable attorney’s fees, costs, and expenses. 

Where federal jurisdiction is rooted in subject matter jurisdiction under the FLSA, rather than 

diversity, that the amount in controversy may not amount to $75,000 does not deprive the court 

of jurisdiction. Kozlowski v. City of Dunkirk, 319 F.Supp.2d 342, 344 (W.D.N.Y. 2004) (citing 

Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 694 (2003)). Because I ultimately 

conclude that the Court has subject matter jurisdiction over Plaintiff’s FLSA claim, I need not 

rule on Defendant’s diversity challenge which, in any event, was not properly briefed.

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1991)). No presumption of truthfulness is accorded to the plaintiff’s allegations. U.S. ex rel. 

Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 509 (3d Cir. 2007).

When faced with a Rule 12(b)(1) challenge to jurisdiction, the court “must start by 

determining whether [it is] dealing with a facial or factual attack to jurisdiction. If [it] is a facial 

attack, the court looks only at the allegations in the pleadings and does so in the light most 

favorable to the plaintiff.” Id. “If [it] is a factual attack, however, it is permissible for a court to 

review evidence outside the pleadings.” Id. Moreover, the trial court is free to weigh and 

evaluate the evidence in determining whether its jurisdiction has been demonstrated. Symczyk, 

656 F.3d at 191 n.4 (citing Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d 

Cir. 1977)). A jurisdictional challenge is a factual challenge if “it concerns not an alleged 

pleading deficiency, but rather the actual failure of [plaintiff's] claims to comport with the 

jurisdictional prerequisites.” U.S. ex rel. Atkinson, 473 F.3d at 514. Here, Defendants make a 

factual challenge to jurisdiction, arguing that there is no federal question jurisdiction under the 

FLSA because Plaintiff is not an employee under that Act.

Plaintiff argues that Defendants’ motion should be construed as a motion for failure to 

state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) rather than a 12(b)(1) 

motion for lack of subject matter jurisdiction. So construing Defendants’ motion, Plaintiff 

further argues, the Court should convert the motion into one for summary judgment and consider 

evidence outside of the pleadings. In support of his argument, Plaintiff cites Oestman v. 

National Farmers Union Ins. Co., 958 F.2d 303 (10th Cir. 1992), an out-of-district case in which 

the Tenth Circuit affirmed a lower court’s grant of summary judgment to a defendant-employer 

based on the plaintiff’s failure to demonstrate that he was an employee under the Age 

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). Perhaps Plaintiff found 

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this case relevant because, in that case, the court notes similarities between the ADEA and 

FLSA. Whatever similarities there are between the two statutes, I do not find Oestman

persuasive here on the question of which federal rule of civil procedure should govern 

Defendants’ motion. Oestman contains no discussion about which procedural framework should 

apply when ruling on employee status under a given statute; it merely notes that the lower court 

in that case had granted summary judgment. 958 F.2d at 303.

I am guided, instead, by the Third Circuit’s ruling in CNA v. United States, 535 F.3d 132 

(3d Cir. 2008). In that case, the Third Circuit addressed the jurisdiction/merits dichotomy that 

arises when an employee acts within the scope of his employment for purposes of determining 

whether federal courts have jurisdiction under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 

§§ 1346(b), 2671-80. The Circuit explained the import of choosing the proper procedural 

framework in that case:

Whether a Government employee was acting within the scope of 

his employment plausibly could be addressed as one of jurisdiction 

or one of the merits of a claim. That choice corresponds to whether 

Rule 12(b)(1) or, on the other hand, Rule 12(b)(6) or Rule 56 

provided the proper procedure. A great deal turns on this question 

because Rule 12(b)(6) or Rule 56 would provide more procedural 

safeguards to the plaintiff Subrogees than does Rule 12(b)(1). For 

example, a district court acting under Rule 12(b)(1) may 

independently evaluate the evidence regarding disputes over 

jurisdictional facts, rather than assuming that the plaintiff's 

allegations are true.

Id. at 140. 

The Circuit went on to hold that “treating the scope-of-employment issue as jurisdictional 

in the FTCA context is the better course . . . because the FTCA defines federal courts' 

jurisdiction to hear cases seeking damages from the Government ....” Id. In this connection, 

the Circuit found it important that the FTCA’s scope-of-employment requirement appears in the 

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same subsection as Congress’s grant of jurisdiction to the courts. Id. at 142. This suggested to 

the CNA court that that the scope-of-employment requirement “represents a limitation on 

Congress's . . . and thus a limitation on federal courts’ jurisdiction.” Id. The Circuit reasoned, 

“whe[n] a statute contains within itself the bounds of its jurisdiction” it is most likely that 

Congress intended to “tether[ ] jurisdiction to meeting that subsection's requirements.” Id. at 

143.

Similarly, here, the FLSA defines the federal courts’ jurisdiction to hear FLSA cases by 

expressly limiting that jurisdiction to claims against “employer[s]” whose “employees” have not 

been properly paid in accordance with the statute. 29 U.S.C. 216(b). Section 216(b) provides, in 

pertinent part, 

Any employer who violates the provisions of . . . this title shall be 

liable to the employee or employees affected in the amount of their 

unpaid minimum wages, or their unpaid overtime compensation, as 

the case may be, and in an additional equal amount as liquidated 

damages. . . . An action to recover the liability prescribed . . . may 

be maintained against any employer . . . in any Federal or State 

court of competent jurisdiction by any one or more employees for 

and in behalf of himself or themselves and other employees 

similarly situated.

Id. preempted on other grounds by Alden v. Maine, 527 U.S. 706 (1999). 

Courts have consistently interpreted section 216(b) as a jurisdictional provision. See

Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 791 (2003) (“The FLSA provides that an 

action ‘may be maintained . . . in any Federal or State court of competent jurisdiction ....”);

Friedrich v. U.S. Computer Svcs., 974 F.2d 409, 410 n. 1 (3d Cir. 1992) (“Subject matter 

jurisdiction . . . exists under section 16(b) of the FLSA ....”). And, like the scope-ofemployment requirement in the FTCA, language in the precise provision that grants courts 

jurisdiction over FLSA claims expressly limits those authorized to bring such claims to 

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employees. Compare Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462

(3d Cir. 2011) (holding that determination of whether a defendant was involved in “import trade 

or import commerce” under the Foreign Trade Antitrust Improvements Act (“FTAIA”) was not a 

jurisdictional limitation, but went only to the merits, because “[t]he FTAIA neither speaks in 

jurisdictional terms nor refers in any way to the jurisdiction of the district courts.”). 

Accordingly, I conclude that employee status under the FLSA is a jurisdictional question and 

that the proper procedural method for adjudicating a dismissal motion challenging the plaintiff’s 

status is through Rule 12(b)(1).2

Having decided to proceed under Rule 12(b)(1), I am “permitted to make factual 

findings, beyond the pleadings, that [a]re decisive to determining jurisdiction.” CNA, 535 F.3d 

at 145 (citing Atkinson, 473 F.3d at 514). In choosing to apply Rule 12(b)(1), I am mindful of 

the Circuit’s admonition not to rule on the merits of Plaintiff’s case under this procedural vehicle 

in light of the fewer procedural protections accorded the plaintiff under the 12(b)(1) standard. 

See CNA, 535 F.3d at 144-45 (“By requiring less of a factual showing than would be required to 

succeed at trial, district courts ensure that they do not prematurely grant Rule 12(b)(1) motions to 

dismiss claims in which jurisdiction is intertwined with the merits and could be established, 

along with the merits, given the benefit of discovery.”).

B. Summary Judgment Standard

 2 My ruling is consistent with the bright line rule adopted by the Supreme Court in 

Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 511, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), that 

“[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as 

jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with 

the issue.” Animal Science, 654 F.3d at 468 (quoting Arbaugh, 546 U.S. at 515-16). 

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Summary judgment is appropriate when the movant demonstrates that there is no 

“genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). A material fact is “[a] fact[ ] that 

might affect the outcome of the suit under the governing law.” Haybarger v. Lawrence County 

Adult Probation and Parole, --- F.3d ----, 2012 WL 265996, *3 (3d Cir. 2012) (quoting Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In order for 

an issue to be genuine, “all that is required is that sufficient evidence supporting the claimed 

factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 

truth at trial.” Id. (quoting Anderson, 477 U.S. at 248–49).

III. DISCUSSION

The FLSA generally defines an employee as “any individual employed by an employer.” 

29 U.S.C. § 203(e)(1) (1988). Employer is defined as “any person acting directly or indirectly in 

the interest of an employer in relation to an employee...” 29 U.S.C. § 203(d). “The statutory 

definitions regarding employment status are necessarily broad to effectuate the remedial 

purposes of the Act.” Martin v. Selker Bros., Inc., 949 F.2d 1286, 1293 (3d Cir. 1991) (see also

United States v. Rosenwasser, 323 U.S. 360, 363 (1945)). In fact, “Congress and the courts have 

both recognized that, of all the acts of social legislation, the Fair Labor Standards Act has the 

broadest definition of ‘employee.’” Donovan v. Dial America Mktg., Inc., 757 F.2d 1376, 1382 

(3d Cir. 1985) (quoting 81 Cong. Rec. 7657 (remarks of Senator Hugo L. Black)); see also Equal 

Employment Opportunity Commission v. Zippo Manufacturing Co., 713 F.2d 32, 37 (3d Cir. 

1983)). 

“There is no single test to determine whether a person is an employee or an independent 

contractor for purposes of the FLSA.” Martin, 949 F.2d at 1292. Over the years, several 

different types of tests have been used by the courts in answering this question. To see this, 

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compare the totality-of-the-circumstances test applied in Rutherford Food Corp. v. McComb, 

331 U.S. 722 (1947) (“[T]he determination of the relationship does not depend on . . . isolated 

factors but rather upon the circumstances of the whole activity.”) with the five-factor test utilized 

by the Tenth Circuit in Wheeler v. Hurdman, 825 F.2d 257 (10th Cir. 1987), and the six-factor 

test adopted by the Ninth circuit in Real v. Driscoll Straberry Associates, 603 F.2d 748, 754 (9th 

Cir. 1979). 

However styled, and regardless of the number of factors considered, the touchstone of 

these tests is whether the employee-employer relationship exists as a matter of “economic 

reality.” Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28 (1961); see Godoy v. Restaurant 

Opportunity Center of New York, Inc., 615 F. Supp. 2d 186 (S.D.N.Y. 2009). This inquiry 

centers on whether the putative employee is economically dependent upon the putative 

employer. Godoy, 615 F.Supp.2d at 193. The Supreme Court has found it necessary to focus on 

the “economic realities of the relationship” in light of the expansive definitions of employee and 

employer under the FLSA. Martin, 949 F.2d at 1293. 

Consistent with the Supreme Court’s directive, the Third Circuit has instructed lower 

courts to consider the “circumstances of the whole activity” in assessing whether a putative 

employee falls within the bounds of the Act. Id. In this connection, the Third Circuit has 

adopted a six-factor test to aid courts in determining employee status under the FLSA. The 

factors of the test are: 

1) the degree of the alleged employer’s right to control the manner 

in which the work is to be performed; 2) the alleged employee’s 

opportunity for profit or loss depending upon his managerial skill; 

3) the alleged employee’s investment in equipment or materials 

required for his task, or his employment of helpers; 4) whether the 

service rendered requires a special skill; 5) the degree of 

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permanence of the working relationship; 6) whether the service 

rendered is an integral part of the alleged employer’s business.

Id. (quoting Donovan v. Dial America Mktg., Inc., 757 F.2d 1376, 1382 (3d Cir. 1985)). 

Application of these factors here counsels a finding that Plaintiff was an employee for FLSAjurisdictional purposes.

With these principles in mind, I turn to the parties’ motions.

A. Defendants’ Motion to Dismiss

As noted, in connection with Defendants’ Rule 12(b)(1) motion, I am “permitted to make 

factual findings, beyond the pleadings, that [a]re decisive to determining jurisdiction.” CNA, 

535 F.3d at 145 (citing Atkinson, 473 F.3d at 514). Where there is a disputed issue of fact 

relevant to the six-factor test adopted by the Third Circuit in Martin, I will resolve that factual 

dispute. My ruling, in this regard, is only for the purposes of determining the Court’s subject 

matter jurisdiction and is not on the merits.

1. Control

I begin with the first factor—the degree of the alleged employer’s right to control the 

manner in which the work is to be performed. Facts relevant to this inquiry are “the degree of 

supervision over the worker, control over the worker’s schedule, and instruction as to how the 

worker is to perform his or her duties.” Bamgbose v. Delta-T Group, Inc., 684 F.Supp.2d 660, 

669 (E.D.Pa. 2010) (citing Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 675-76 

(1st Cir. 1998). See also Donovan, 757 F.2d at 1383 (analyzing to what degree putative 

employees were supervised and subject to hiring and firing) (citing Goldberg v. Whitaker House 

Coop., 366 U.S. 28, 32-33 (3d Cir. 1985)). This factor may weigh against finding employee 

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status when the putative employer exercises only minimal control over the putative employee. 

See Donovan, 757 F.2d at 1383.

Defendant Kiss, the former CEO of Renewable, asserts in his initial certification that 

Plaintiff “was given specific tasks to perform and set his own hours once his employment status 

was changed [in 2007] to consultant.” Kiss Cert., ¶ 4. Plaintiff disputes Kiss’ characterization of 

their work relationship, asserting in his certification submitted along with his opposition that,

“[a]s a result of the 2007 change . . ., there was no change in any of my work responsibilities and 

duties, hours and time of work, or any working conditions.” Id. at ¶5. More to the point, he 

states,

[c]ontrary to the assertion of Zoltan Kiss, I was not free to 

schedule my own hours. I continued to report to Zoltan Kiss 

weekly or more frequently or sometimes less frequently as needed. 

I did no independent work but continued to work on those projects 

and tasks as determined by Zoltan Kiss. At all times my work was 

directed by and supervised by Dr. Kiss to whom I reported.

Id. In reply, Kiss states by way of a supplemental certification that Plaintiff “operated on his 

own, without being directed how or in what manner to complete tasks.” Kiss Supp. Cert., ¶ 2. 

At this juncture, I credit Plaintiff’s version of events because of the specificity of his 

certification as compared with the generalized, broad-brush nature of the Kiss averments. For 

one, Plaintiff’s description of the work environment is more detailed than Kiss’ generic 

description. Moreover, I find it telling that, when faced with Plaintiff’s specific allegations 

regarding his work situation submitted in opposition, Kiss provides no further detail in his 

supplemental certification about whether he decided the scope of Plaintiff’s projects or tasks, or 

how frequently he reviewed Plaintiff’s work. For this reason, I conclude that Renewable, 

through its former CEO Kiss, retained the right to control the manner in which Plaintiff 

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performed his work. That being the case, I conclude for purposes of this motion that this factor 

weighs in favor of a finding that Plaintiff was an employee.

2. Opportunity for Profit or Loss

This factor centers on whether the plaintiff had meaningful opportunities for profit or any 

significant risk of financial loss, depending upon his managerial skill. Martin, 949 F.2d at 1294. 

By way of example, this factor may be present for a worker whose earnings are tied to his 

performance. See id. Another example is when the putative employee makes a capital 

investment that may be lost if the business does not succeed. See Donovan v. Sureway Cleaners, 

656 F.2d 1368, 1372 (9th Cir. 1981) cited with approval in Donovan, 757 F.2d at 1382. Here, 

Plaintiff generally avers that he received a bi-weekly salary of a set amount, which suggests that 

there were no meaningful opportunities for profit or any significant risk of financial loss

depending upon the use of his managerial skill. Nor is there is any evidence that Plaintiff made a 

capital investment in Renewal. He further states in his certification that he was never offered 

stock in Renewal. Li Cert., ¶ 6. Defendants do not dispute any of these facts. Accordingly, this 

factor weighs in favor of a finding that Plaintiff was an employee.

3. Investment in Equipment and Employment of Workers

Similarly, Plaintiff asserts, and Defendants do not dispute, that Plaintiff did not make any 

type of investment either in equipment or support staff. Li Cert., ¶ 7. As such, this third prong 

of the test also points to Plaintiff being Renewable’s employee.

4. Special Skill

The fourth factor asks whether the service rendered by the alleged employee requires a 

special skill. Unskilled workers are more likely to be deemed employees because “[r]outine 

work which requires industry and efficiency is not indicative of independence and nonemployee 

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status.” Martin, 949 F.2d at 1295 (quoting Usery v. Pilgrim Equip. Co., Inc., 527 F.2d 1308, 

1313 (5th Cir. 1976)). That said, all skilled workers are not independent contractors. In 

ascertaining worker status, courts should consider whether, “in the larger picture, [workers] have 

the skills necessary to locate and manage discrete work projects characteristic of independent 

contractors, or whether the skills are of the task-specific, specialized kind that form a piece of a 

larger enterprise, suggesting employee status.” See LeMaster v. Alternative Healthcare 

Solutions, Inc., 726 F.Supp.2d 854, 861 (M.D.Tenn. 2010) (quoting Wilson v. Guardian Angel 

Nursing, Inc., No. 3:07-0069, 2008 WL 2944661, * 13 (M.D.Tenn. 2008)).

Here, Plaintiff avers that he served as Director of Research and Development for 

materials and devices. Li Cert., ¶ 2. According to his certification, his duties throughout his 

tenure at Renewal included setting up research and development facilities, performing research 

and related engineering duties in the areas of “inorganic photovoltaics, hydrogen storage in 

carbon nanotubes and other nanomaterials, and the photoluminescence of inorganic and organic 

materials,” as well as other duties Renewal deemed of importance, from time to time. Id. at ¶ 3. 

Finally, Plaintiff asserts, Kiss directed him to perform additional duties such as managing 

intellectual property issues and patent filings, and interacting with Renewal’s customers. Id. 

Kiss avers that, at the beginning of Plaintiff’s work relationship with the company, 

Plaintiff developed products to be marketed by Renewal. Kiss Supp. Cert., ¶ 3. Once he became 

a consultant in 2007, however, Renewal encouraged Plaintiff to pursue research and 

development projects consistent with his expertise as an organic chemist. Id. at ¶ 2. According 

to Kiss, Plaintiff prepared grant applications that were not central to Renewal’s business. Id. at ¶ 

4. 

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Based on both Plaintiff’s and Kiss’ certifications, it is clear that Plaintiff utilized his 

special expertise as an organic chemist in his work at Renewal. His work in the area of inorganic 

photovoltaics is one example. However, the inquiry is not simply whether Plaintiff utilized 

specialized knowledge in his work. If his tasks were not discrete work projects, but formed a 

specific part of larger work at Renewal, this factor may still favor a finding that he is an 

employee. Weighing both parties’ account of Plaintiff’s work (which, in my view, are not 

necessarily inconsistent with each other), I find that this factor presents a close call. Plaintiff’s 

description suggests that he merely provided specialized skills on larger Renewal projects while 

Kiss’ description of Plaintiff’s post-2007 work suggests that he was beginning to take on more 

discrete projects related to Plaintiff’s organic chemistry specialty. On balance, however, I find 

that this factor weighs in favor of employee status because the bulk of Plaintiff’s work was on 

larger Renewal business and the organic chemistry-focused research and development projects, 

as well as the attendant grant applications, were completed at Renewal’s direction—not 

Plaintiff’s. See Kiss Supp. Cert., ¶ 2 (stating that Renewal urged Plaintiff to pursue organic 

chemistry research and development projects).

5. Permanence of the Working Relationship

The fifth factor examines the permanency of the relationship. Based on both Plaintiff’s 

and Kiss’ certifications, it is clear that Plaintiff was not hired for a specific period, or to complete 

one specific task. Instead, based on both Plaintiff’s and Kiss’ accounts, Plaintiff’s four-year 

employment relationship with Renewal more closely resembled that of a normal at-will 

employee. As such, the fifth factor points towards finding an employee-employer relationship. 

Accord LeMaster, 726 F.Supp.2d at 861 (holding that plaintiff-licensed professional nurse 

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demonstrated permanence factor where facts showed that she worked for defendants at least six 

months).

6. Integral Economic Relationship

Finally, the sixth and final factor asks whether the services rendered by the Plaintiff were 

an integral part of Renewable’s business. As my discussion of the special skills factor reveals, 

the parties offer competing averments on this point. Defendant claims that Plaintiff’s job duties 

changed, with a later focus on grant-writing, which Defendant claims was not an integral part of 

the business. However, Plaintiff avers that the majority of his time was still spent researching 

scientific matters that were essential to the products Renewal sold. 

As noted in my special skills factor analysis, I conclude for the purpose of the instant 

motion that Plaintiff spent the majority of his time working on Renewal’s larger research and 

development projects. Kiss’ certification suggests that Plaintiff began transitioning towards

more organic-chemistry focused projects and grant writing, but that averment does not preclude a 

finding that Plaintiff’s work was integral to Renewal’s business. That said, the record does not 

contain substantial evidence relating to the nature of Renewal’s business. Therefore, while the 

limited evidence presented supports a finding of employee status, I do not accord much weight to 

this factor. LeMaster, 726 F.Supp.2d at 863.

Overall, the six-factor test suggests that Plaintiff is an employee, however, I must still 

examine the total economic realities of the relationship before making my final determination. 

Here, too, the economic realities point to an employee-employer relationship. It is undisputed 

that Plaintiff’s sole source of income was Renewable. Plaintiff had no other jobs, but instead

relied entirely on Renewable for his income and livelihood. The overarching question of the 

economic realities test is whether Plainitff was, “as a matter of economic reality, dependant on 

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the business [he] served, or conversely, whether [he was] in business for [himself],” Schultz v. 

Capital Intern. Sec., Inc., 466 F.3d 298, 305 (4th Cir. 2006), and there is no indication that he 

was in business for himself. Plaintiff treated the job like a normal employment: he worked 

regular hours and reported to his supervisor. Moreover, he continued to receive medical and 

dental benefits through Renewable’s health plans during his entire tenure with the company.

That Plaintiff was paid on a 1099 basis is the only fact that mimics independent 

contractor status, but non-withholding of taxes alone will not undermine employee status, 

Ansoumana v. Gristede's Operating Corp., 255 F.Supp.2d 184, 190 (S.D.N.Y. 2003) (concluding 

that workers were employees under the FLSA and state wage law even though they had received 

1099 forms to report their earnings while working for the defendant)3

 3 Otherwise, an employer could manipulate the FLSA law by making that one 

change. As the Ansoumana Court explains:

. More to the point, the 

Third Circuit has made clear that courts must focus on the totality of the circumstances in 

assessing the work relationship. Martin, 949 F.2d at 1293 (“[N]either the presence nor the 

absence of any particular factor is dispositive ....”). Considering all the facts presented, I 

conclude that Plaintiff was, for the purposes of finding jurisdiction under the FLSA, an employee 

An employer's characterization of an employee is not controlling, 

however, for otherwise there could be no enforcement of any 

minimum wage or overtime law. There would be nothing to 

prevent old-fashioned labor contractors from rounding up workers 

willing to sell their labor cheaply, and assigning them to perform 

outsourced work, without complying with minimum wage 

requirements. Thus, not the characterization of a hiring hall, but 

the test of “economic reality,” governs how a relationship of 

employment is to be characterized in relation to the FLSA.

Id. at 190 (citing Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988)). 

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of Renewable at all relevant times. Therefore, Defendant’s motion to dismiss for lack of 

jurisdiction is denied.

B. Plaintiffs’ Motion for Summary Judgment

Plaintiffs’ motion for partial summary judgment is denied at this juncture. Just as with 

Defendants’ motion to dismiss, the Court must apply the six-factor employee status test to 

determine whether Plaintiff is an employee under the FLSA. The only difference, for this 

motion, is that the Court’s determination would be on the merits and not jurisdictional in nature. 

As I explained in connection with my analysis of the control factor in Defendants’ motion 

to dismiss, the parties dispute the degree of control that Renewal and Kiss exercised over 

Plaintiff’s work. For this same reason, and viewing the evidence in the light most favorable to 

Defendants as the nonmoving party, I conclude that there exists a genuine issue of material fact 

as to this element of the six-factor putative employee test. Accord Rong Chen v. Century Buffet 

and Restaurant, No. NO. CIV.A. 09-1687, 2012 WL 113539 (D.N.J. Jan. 12, 2012) (denying 

summary judgment where there existed a genuine issue of material fact as to the amount of 

control exercised over putative employee); cf. id. at *3 (“Because of the fact-intensive nature of 

the inquiry, an employer determination can rarely be made on summary judgment.”) In addition, 

as noted in my analysis of the integral economic relationship factor, there is little record evidence 

on the nature of Renewal’s business. It is Plaintiff’s burden to demonstrate that summary 

judgment is appropriate, and the aforesaid paucity of evidence further counsels against a finding 

of summary judgment at this early stage in the litigation.

IV. CONCLUSION

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For the forgoing reasons, Defendants’ motion to dismiss for lack of subject matter 

jurisdiction is denied. Plaintiff’s motion for partial summary judgment is denied without 

prejudice.

 

/s/ Freda L. Wolfson _____

Hon. Freda L. Wolfson, U.S.D.J.

Dated: February 21, 2012

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