Bowerman, et al. v. Field Asset Services, Inc., et al.

A putative employer cannot be liable to an entire class of putative employees for failing to reimburse their business expenses and pay them overtime unless the putative employer failed to do so for each class member.

Defendant, Field Asset Services, Inc. (“FAS”), appealed the district court’s order for summary judgment and class certification of 156 individuals (“Plaintiff”), who performed pre-foreclosure property preservation services for FAS. The Court considered whether the district court abused its discretion when it granted class certification of Plaintiff under FRCP 23(b)(3). FAS argued that Plaintiff failed Rule 23’s predominance requirement. The Court accepted FAS’s representation that class members were unable to support their claims through common evidence and found that complex, individualized inquiries would be necessary to establish which class members worked overtime and whether any claimed expenses were reimbursable. FAS also argued that because they do not control the means of Plaintiff's work, the district court erred in granting summary judgment to Plaintiff. The Court found that Plaintiff exhibited evidence of both an independent contractor and an employee. Under the Borello test, these questions must be weighed by a trier of fact. Therefore, the Court held that summary judgment was improper because triable issues of fact existed regarding the relationship between FAS and Plaintiff. The Court also vacated the interim award of attorneys’ fees because the class certification and summary judgment orders were issued in error. Class certification and order for summary judgment REVERSED and REMANDED; interim award of attorneys’ fees VACATED.