As we have detailed many times, the legal determination as to when an individual providing services is performing work which must be compensated under the minimum wage and overtime provisions of the FLSA is not always simple. This inquiry and related questions were at issue in Rui Xiang Huang v. J&A Entm't Inc., 2012 U.S. Dist. LEXIS 184727 (E.D.N.Y. Dec. 3, 2012), in which Magistrate Judge Viktor V. Pohorelsky of the United States District Court for the Eastern District of New York found a trial necessary to determine whether a tour guide was an independent contractor, rather than  an employee and, if an employee, whether she was “working,” and thus eligible for minimum wage and overtime pay during periods after she arrived at the casino and before the return trip back.   

The duties reviewed by the Court in Huang were relatively straight-forward. Plaintiff was responsible for selling tickets, encouraging individuals to join defendant’s tours to Mohegan Sun, then accompanying the customers on the bus trip to the casino. The parties’ disputed whether Plaintiff was an independent contractor, and thus not covered by the FLSA, or an employee. The court found a question of fact existed regarding her status under the “economic realities” test adopted by the Second Circuit, including the degree of control exercised by the Defendant over Plaintiff, Plaintiff’s opportunity for profit or loss as a tour guide, and the skills required to perform the work. As to whether time at the casino constituted “work time”, the Court also found a question of fact based on the parties’ sharp dispute regarding whether Plaintiff was relieved of duty once she arrived  at the casino or whether she was required to attend mandatory meetings and also advise travelers on the tour.

While the duties at issue here were relatively unique, and not strictly applicable to many other industries, the legal questions discussed in analyzing whether there was an “employment” relationship are common ones: does the putative employer exert control over the service provider in question, and, as to whether time spent must be compensated, is allegedly “mixed benefit” or “mixed time” compensable “work” requiring adherence to the minimum wage and overtime rules? Employers must analyze these questions with respect to their own contractors and employees by reference to FLSA guidance and the laws, regulations and case law of the states in which they operate.