The opinion of the court was delivered by: David G. Larimer United States District Judge
This is an action under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301-4335. Plaintiff Andrae Evans is a member of the New York Army National Guard. In April 2004, he was called to active duty and sent to Iraq. At the time of his call-up, plaintiff was working for defendant MassMutual Financial Group ("MassMutual").
Plaintiff was released from active duty in November 2006. He applied for reemployment with MassMutual, seeking reinstatement as a sales manager. He was informed that he could return to work at MassMutual, but as a career sales agent, not as a sales manager. Plaintiff would not consent to that offer, and apparently has not worked at MassMutual since before his deployment in 2004.
Plaintiff filed this lawsuit in January 2009, naming MassMutual and William D. Costello, a MassMutual employee, as defendants. He asserts a single cause of action under USERRA, which provides a comprehensive remedial scheme to ensure the employment and reemployment rights of those called upon to serve in the armed forces of the United States." Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 160 (2d Cir. 2005). Plaintiff's cause of action is based on 38 U.S.C. § 4312, which states, in relevant part, that "any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter."
On October 26, 2009, District Judge Charles J. Siragusa of this Court issued a Decision and Order, familiarity with which is assumed, denying defendants' motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 2009 WL 3614534. Defendants have now moved for summary judgment under Rule 56. Following the filing of that motion, this case was transferred from Judge Siragusa to me, see Dkt. #41, and the Court heard oral argument on the motion.
I. Was Plaintiff Covered by USERRA?
Defendants contend that the undisputed facts demonstrate that plaintiff was not an employee of MassMutual, but an independent contractor, and therefore that he was not covered by USERRA. As Judge Siragusa noted in his prior decision in this case, "USERRA does not provide protections for an independent contractor." 2009 WL 3614534, at *3 (quoting 20 C.F.R. § 1002.44). To have standing under USERRA, then, plaintiff must have been an "employee" of MassMutual. Id.
Plaintiff does not appear to dispute that general principle, but he contends that there is an issue of fact concerning whether he was an independent contractor or an employee for purposes of USERRA. Defendants assert that this argument is foreclosed by the agreements signed by plaintiff in November 2003 and May 2006, in which he expressly agreed that he would be an independent contractor, and not an employee of MassMutual. See Dkt. #31-10, #31-11.
While the parties' signed agreements have some bearing upon this issue, they are not dispositive. The case law is clear that the parties' use of particular labels or terms such as "independent contractor" is simply one factor that the court can consider in determining whether a plaintiff was an "employee" for purposes of USERRA.
Though the case law on this issue in the USERRA context is sparse, cases interpreting analogous provisions in the Fair Labor Standards Act ("FLSA") are relevant in this regard. See Evans, 2009 WL 3614534, at *4 and n.5 (noting similarity between definitions of "employee" in FLSA and USERRA; see also H.R. Rep. 103-65, at 21 (1993), reprinted in 1994 U.S.C.C.A.N. 2449, 2454 ("Section 4303(3) [of USERRA] would define 'employee', in the same expansive manner as under the Fair Labor Standards Act, 29, U.S.C. 203(e) ... and the issue of independent contractor versus employee should be treated in the same manner as under the Fair Labor Standards Act") (citations omitted).
In determining whether a plaintiff was an employee or an independent contractor, courts apply the "economic realities" test, which looks to the actual facts of the parties' relationship, and not simply to the nomenclature they have used in their written agreement. See, e.g., Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 755 (9th Cir. 1979) ("Economic realities, not contractual labels, determine employment status for the remedial purposes of the FLSA"); Scantland v. Jeffry Knight, Inc., No. 8:09--CV--1985, 2012 WL 1080361, at *6 (M.D.Fla. Mar. 29, 2012) ("Economic reality controls over labels or subjective intent as to the ultimate issue of Plaintiffs' status as independent contractors or employees"); Harris v. Attorney Gen'l of the United States, 657 F.Supp.2d 1, 10 (D.D.C. 2009) ("While contracts manifest the parties' intent, they do not necessarily reflect 'economic realities'").
Courts have identified several factors as particularly significant vis-a-vis the economic-realities analysis, including (1) the degree of control exercised by the employer over the worker[ ], (2) the worker['s] opportunity for profit or loss and [his] investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence and duration of the working relationship, and (5) the extent to which the work is an integral part of the employer's business.
Wade v. Woodland Commons, LLC, No. 1:09-CV-1426, 2012 WL 929839, at *8 (N.D.N.Y. Mar. 19, 2012) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 ...