United States District Court, N.D. Illinois, Eastern Division
TOM D. NASSIS, Plaintiff,
LASALLE EXECUTIVE SEARCH, INC., TOD McELHANEY, and BRIAN VIEHLAND, Defendants.
MEMORANDUM OPINION AND ORDER
Robert Blakey, United States District Judge.
case arises from the end of a business relationship between
the parties. Plaintiff Tom Nassis, a former recruiter at
LaSalle Executive Search (LaSalle), sued Defendants for
unpaid wages, alleging violations of: (1) the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq.;
(2) the Illinois Minimum Wage Law (IMWL), 820 ILCS §
115/1 et seq.; and (3) the Chicago Minimum Wage
Ordinance (CMWO), Chicago, Ill., Municipal Code §
1-24-010 (2014). . Plaintiff's claims turn upon
whether an employer-employee relationship existed between
Plaintiff and Defendants, or whether Plaintiff qualified as
an independent contractor. Plaintiff moved for summary
judgment. . For the reasons explained below, this Court
denies Plaintiff's motion.
LaSalle Executive Search
is a recruiting company that matches job applicants with
companies seeking employees. DSAF ¶ 1. Defendants Tod
McElhaney and Brian Viehland own LaSalle but run it as a side
project and do not receive compensation from the company.
Id. ¶¶ 2, 3. LaSalle operates out of an
office provided by McElhaney's trading company, LaSalle
Futures Group. Id. ¶ 6; see also
[38-4] at 10-12.
recruiters earn commissions when they successfully place a
candidate with a company. See [38-4] at 9, 12.
LaSalle and the recruiter split commissions, which cover some
of LaSalle's overhead costs. Id.; see
also DSAF ¶ 7. LaSalle does not file unemployment
wage reports for its recruiters. See DSAF ¶ 7.
LaSalle issued IRS 1099 forms for the commission payments it
made to recruiters. See [42-1] ¶ 3. Though
LaSalle pays most of its recruiters on a commission-only
basis, Viehland testified that on “a few”
occasions LaSalle brought in recruiters on an “employee
status.” [38-6] at 22.
Plaintiff worked for LaSalle, LaSalle's recruiters were
not entitled to a specific number of vacation or personal
days or any health benefits. DSAF ¶ 20; see
also [38-4] at 36-37; [38-6] at 71-72. Recruiters could
create their own titles, but Viehland provided sample
language to describe their roles. See PSOF ¶
24; DSAF ¶ 11; [38-6] at 46. LaSalle also provided
training documents giving a broad overview of “what
recruiting is” to new recruiters. [38-6] at 28, 32.
LaSalle gave each of its recruiters access to a phone and
computer at its offices, id. at 45, as well as
Microsoft Office 365 accounts (a cloud-based suite of
services including e-mail and other Microsoft applications
such as Word), id. at 10. Defendants expected
recruiters to secure placements for candidates using those
resources and their own initiative and skill. See
id. at 38; [38-4] at 32. According to Plaintiff, he did
some of his own research but also pursued leads provided by
Viehland. PSOF ¶ 19. Defendants claim that recruiters
did not have to work at LaSalle's offices, see
[38-4] at 42; DSAF ¶ 20, but Plaintiff declares that he
“had to be in the office during normal business
hours” each day, PSOF ¶ 20.
began working as a LaSalle recruiter in the fall of 2015.
[38-5] ¶¶ 4-5. Plaintiff, a college graduate,
previously spent many years as a proprietary and independent
trader in the Chicago Board of Trade (CBOT). See
[38-9] at 4-5.
joining LaSalle, Plaintiff worked as a trader for Kottke
Associates. Id. at 5-6. Plaintiff did not have a
written contract with Kottke. Id. at 5. Rather,
Plaintiff made trades at the CBOT, which were guaranteed by
Kottke. Id. at 6-7. Kottke did not pay Plaintiff a
salary or hourly wages, did not give him a W-2 form, and did
not withhold taxes from his pay. DSAF ¶ 17. Instead,
Kottke paid Plaintiff solely based upon his trading profits
and losses. Id.
August 2015, Plaintiff began looking for new employment.
[38-9] at 9. A friend connected Plaintiff with McElhaney.
Id. During an initial meeting around September 2015,
Plaintiff expressed interest in McElhaney's trading
company-LaSalle Futures Group-but McElhaney told Plaintiff
that LaSalle's recruiting work would become a bigger
business than McElhaney's futures trading business, which
did not then have any openings. See [38-4] at 33;
[38-9] at 10.
following days, Plaintiff exchanged calls and e-mails with
Viehland and McElhaney about LaSalle's recruiting
business. DSAF ¶ 19. In at least one phone call,
McElhaney discussed pay and hours expectations. See
[38-4] at 36-37. Viehland participated by phone in at least
one meeting with Plaintiff and McElhaney in early September
2015. [38-6] at 28. Following that phone call, on September
11, Viehland e-mailed Plaintiff written materials about the
recruiting business generally and about LaSalle's
policies and procedures. See id.; see also
DSAF ¶ 23. LaSalle's incoming recruiters did not
typically sign written agreements before beginning their work
at the firm. [38-4] at 11, 12. Defendants assert that
Plaintiff did not sign an employment agreement and the record
contains no evidence suggesting otherwise. See R.
DSAF ¶ 20.
September and October 2015, Viehland sent numerous training
documents to Plaintiff, including introductory manuals,
scripts for recruiting calls, and other training books to
familiarize Plaintiff with successful recruiting practices.
See [38-6] at 28, 30-35; DSAF ¶ 23; [38-5]
¶ 14. LaSalle also bought Plaintiff a Kindle to use to
review his training materials, scripts, and other resources.
See [38-6] at 33, 45. Plaintiff read many of these
materials and also pursued “independent learning
opportunities” outside of those materials, which he
incorporated into his eventual recruiting efforts. DSAF
¶¶ 24, 28.
say that Plaintiff began working for them around late October
2015, [38-3] ¶ 17, and McElhaney set up a workstation at
LaSalle's offices for Plaintiff on November 2, [38-6] at
109. On or about that date, Plaintiff wrote in his personal
journal that he “was mentally prepared to receive
little or no direction” from McElhaney and others at
LaSalle. [38-9] at 48-49.
knew that he would be paid on straight commission for the job
placements he made. R. DSAF ¶ 29. Plaintiff asserts that
although he understood his compensation would come from
recruitment commissions, other LaSalle recruiters were not
paid on a straight commission basis. PSOF ¶ 57. The
commission itself was generally set according to a standard
contract between LaSalle and the company with whom a
candidate was placed. Id. ¶ 30. Recruiters
could negotiate to alter the terms of the fee agreement with
the company, but some changes required approval from
McElhaney or Viehland. Id.; [38-6] at 68. On
occasion, recruiters used fee agreements provided by the
company. [38-6] at 21.
worked sporadically in LaSalle's offices during the final
two months of 2015, but the record contains conflicting
testimony as to whether he also worked from home during that
time. See [38-4] at 42; [38-6] at 41, 71; [42-1]
¶ 9. Plaintiff declares that he worked
“exclusively” and “full-time” for
LaSalle from November 2015 to early May 2016. PSOF ¶ 51.
Defendants allege that Plaintiff did not work full-time,
often leaving LaSalle's offices around 2:00 p.m. DSAF
¶ 33. Plaintiff declares that his regular practice was
to leave work around 5:00 p.m. [45-1] ¶ 3. LaSalle's
building security required employees to swipe into the
building, but not out; their records show that Plaintiff
typically arrived around 8:50 a.m. on days he worked on-site.
See [38-6] at 175-81.
of his training, Plaintiff shadowed Abel Lopez, a fellow
recruiter, in early November 2015. [42-1] ¶¶ 9-11.
Lopez began with LaSalle in 2013 but took time off
periodically for side projects. Id. ¶ 2.
Although Lopez explained the importance of spending at least
two hours per day on the phone to be successful making job
placements, Lopez stated in his affidavit that, by January
2016, Plaintiff still did not seem comfortable on the phone
and spent “more time reading and sending emails.”
[42-1] ¶ 11. Plaintiff understood that it was important
to make as many calls as he could each day from his training
with Lopez, training documents, and conversations with
Viehland. [38-9] at 45-46. Another recruiter, Dan Prinn,
worked at LaSalle at the same time and in a similar role as
Plaintiff. PSOF ¶ 58. The parties agree that Prinn also
received a percentage of recruiting fees and “did not
do any recruiting work” that differed “in any
way” from other LaSalle recruiters. Id.;
see also R. PSOF ¶ 58.
contend that they did not control recruiters' day-to-day
schedules or tasks. DSAF ¶¶ 10, 30; see
also [38-4] at 19; [38-6] at 72-73. Plaintiff asserts
that he “had to be in the office” in normal
business hours, and that recruiters were expected to put in
“3-4 hours of phone time daily.” See
PSOF ¶ 21. The parties agree that in November and
December 2015, Plaintiff took time off to visit with his
brother, but dispute the nature of his leave. See,
e.g., DSAF ¶ 33; R. DSAF ¶ 33.
acknowledge that they provided guidance to recruiters,
including the training materials and resources discussed
above. See DSAF ¶ 23. They also answered
questions, resolved disputes among recruiters, and provided
feedback and approval for the recruiters' fee
arrangements with the companies they recruited for.
See [38-6] at 42-44; 57-58; 68; PSOF ¶¶
22-23, 30-31. On some occasions, Viehland provided Plaintiff
with “leads” on available openings for job
candidates. [38-6] at 54; PSOF ¶ 19. Viehland also
played some role in dividing up work among recruiters: in
December 2015, he sent the recruiters an email about who was
responsible for which candidates and companies, in part to
resolve any disputes among recruiters if their work
overlapped. See PSOF ¶ 27; [38-6] at 51-52.
January 2016, Viehland introduced LaSalle's recruiters,
including Plaintiff, to Big Biller, a website that combined
contact management and applicant tracking in one piece of
software that recruiters could access remotely. Id.
at 124- 27. In an email to recruiters notifying them about
LaSalle's implementation of this software, Viehland told
the recruiters that watching the accompanying ...