No industry or business is immune to FLSA collective actions. What better proof of this than the fact that a Florida resort and golf course management company were sued in a proposed collective action in federal court. The theory is that the caddies were really employees, not independent contractors and that the employers deprived the caddies of overtime pay and minimum wages in violation of the Fair Labor Standards Act/Florida law. The case is entitled Stapleton et al. v. Kemper Sports Management Inc. and was filed in federal court in the Middle District of Florida.
The Complaint alleges that the employer failed to pay the caddies their wages. This process became the responsibility of the guests and players, who paid minimum rates established by the resort plus tips. The named plaintiff alleges he and the others worked 1-2 rounds of golf per day, which could take, due to weather and other issues, up to six hours to play. A two round day meant a work day of twelve hours, according to the plaintiff. Thus, the worker claimed he typically worked 50-60 hours a week. Guests paid the caddies $80-100 per bag carried. The worker claims the caddies were also expected to act as guides for players and maintain the grounds.
The Complaint alleges that Kemper set caddy schedules and assigned them to guests; they also allegedly could be disciplined or fired for not showing up and were compelled to request time off, all characteristics of an employee, not a contractor, according to the Complaint. Notwithstanding these indicia of employment, the putative employers did not pay any wages to the caddies.
There have, of late, been similar lawsuits based on misclassification in this industry. For example, groundsmen and other employees filed a suit against Rotonda Golf Partners LLC, alleging that the operators of a handful of golf courses located on Florida’s west coast misclassified workers in order to avoid paying overtime premiums.
The element of control or, better put, the lack thereof, is the first hurdle in showing that individuals are independent contractors. From these few initial facts, it appears that the golf course may have exerted (or had the potential to exert) control, i.e. hiring, firing, setting schedules. The next element, often the toughest one to prove for a putative employer, is to show that the workers are in an independently established business. Therefore, if these caddies do not work for any other golf course or do not have other indicia of working for themselves (e.g. a website), they will likely not be found to be in their own business.
Could be a big bogey for the defendants…