United States District Court, N.D. Illinois, Eastern Division
NATHANIEL BOYCE, individually and on behalf of a class of persons similarly situated, Plaintiff,
SSP AMERICA MDW, LLC and SSP AMERICA, INC., Defendants.
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge.
Nathaniel Boyce brings this action for unpaid wages against
two defendants. One of the defendants, SSP America, Inc., now
moves to dismiss the claims against it under Rules 12(b)(1)
and 12(b)(6), arguing that Boyce failed to plead any facts
showing that SSP is Boyce's employer. For the reasons
stated here, the Court grants the motion [Dkt. 13] and
dismisses the claims against SSP without prejudice.
following allegations are taken from Boyce's complaint
and are assumed true for purposes of this motion. Defendant
SSP America, Inc. (“SSP”), a California
corporation, provides food and beverage services at airports
and rail stations in more than 30 countries. (Dkt. 1 ¶
1.) SSP established an entity, SSP America MDW, LLC
(“MDW”) (together with SSP,
“Defendants”), that provides food services at
Chicago's Midway International Airport. (Id.)
MDW is an Illinois limited liability company and SSP is one
of its five managing agents. (Id. ¶¶ 8-9.)
SSP manages MDW and acts as its parent organization.
worked as kitchen staff and in related positions at
Defendants' locations in Chicago, Illinois. (Id.
¶ 15.) He worked most recently at Defendants'
location at 5757 West 59th Street in Chicago. (Id.
¶ 15.) Defendants did not pay Boyce for time worked
before and after the start and end times of each scheduled
shift. (Id. ¶ 19.) Boyce moved stock into the
restaurants, cleaned, mopped, swept, wiped countertops, and
prepared for the opening and closing of the restaurants
before and after his scheduled shifts and was not paid for
that work. (Id. ¶ 20.) Boyce regularly
performed work before the start time of his scheduled shifts
(sometimes before clocking in, sometimes after), including
donning required clothing and equipment, collecting supplies,
preparing equipment, meeting with supervisors, and assisting
in the kitchen. (Id. ¶¶ 42-43.) Defendants
required Boyce to clock in before his scheduled shift time
and clock out after his scheduled shift time, but only
recorded the scheduled shift time as time worked and
frequently failed to record all time worked. (Id.
¶¶ 25-26.) Defendants manipulated time records by
deleting records of actual time worked and by transferring
overtime hours from one week to the next to reclassify them
as straight hours rather than overtime hours. (Id.
¶¶ 27, 47.) Defendants adjusted clock-in and
clock-out times to conform with even hours or scheduled shift
times, which typically resulted in Boyce being paid only for
his scheduled shift time rather than his actual time worked.
(Id. ¶ 46.) Defendants also failed to provide
Boyce with meal breaks. (Id. ¶¶ 20-21.)
brings claims under the Fair Labor Standards Act
(“FLSA”), the Illinois Minimum Wage Law
(“IMWL”), and the City of Chicago Minimum Wage
Ordinance (“CMWO”). Defendant SSP moves to
dismiss the claims against it because Boyce has not pleaded
facts showing that SSP was his employer. SSP moves under Rule
12(b)(1) for lack of standing (and thus lack of
subject-matter jurisdiction) and under Rule 12(b)(6) for
failure to state a claim for relief. SSP does not dispute
that MDW was Boyce's employer.
survive the standing challenge, Boyce must show that he
suffered (1) an injury in fact that is (2) fairly traceable
to SSP's challenged conduct and (3) that likely will be
redressed by a favorable decision. Berger v. Nat'l
Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th
Cir. 2016) (citing Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81,
(2000)). Here, SSP raises a facial challenge to standing, so
the Court must evaluate whether the complaint adequately
pleads the elements of standing by applying the “same
analysis used to review whether a complaint adequately states
a claim” under Rule 12(b)(6). Silha v. ACT,
Inc., 807 F.3d 169, 173-74 (7th Cir. 2015) (citations
omitted). Boyce “must plead sufficient factual
allegations, taken as true, that ‘plausibly
suggest'” each standing element is met.
Berger, 843 F.3d at 289 (quoting Silha, 807
F.3d at 174).
overcome a Rule 12(b)(6) motion, “a complaint must
‘state a claim to relief that is plausible on its
face.'” Adams v. City of Indianapolis, 742
F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670,
675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). The Court must accept the
complaint's factual allegations as true and draw all
permissible inferences in Boyce's favor. Id.
However, “[w]hile a plaintiff need not plead
‘detailed factual allegations' to survive a motion
to dismiss, she still must provide more than mere
‘labels and conclusions or a formulaic recitation of
the elements of a cause of action' for her complaint to
be considered adequate under [Rule] 8.” Bell v.
City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678).
SSP's challenges involve a single issue-whether Boyce
adequately alleged that SSP was his employer under the FLSA
and Illinois and Chicago wage laws. Under the FLSA and IMWL,
liability for unpaid wages extends only to
“employers.” 29 U.S.C. § 207(a); 820 ILCS
105/4. Employees have standing to sue only their current or
former employers under the FLSA. Berger, 843 F.2d at
289 (“Under the FLSA, alleged employees' injuries
are only traceable to, and redressable by, those who employed
them.”) (internal quotation marks omitted). Several
courts have found, and the parties do not dispute, that the
“employer” analysis is the same under the FLSA
and the IMWL. Ivery v. RMH Franchise Corp., 280
F.Supp.3d 1121, 1127 n.2 (N.D. Ill. 2017) (collecting cases).
FLSA's definitions do not provide much clarity. An
“employee” means “any individual employed
by an employer.” 29 U.S.C. § 203(e). To
“employ” means to “suffer or permit to
work.” Id. § 203(g). And
“employer” includes “any person acting
directly or indirectly in the interest of an employer in
relation to an employee.” Id. § 203(d);
see Ivery, 280 F.Supp.3d at 1127. Consistent with
Supreme Court guidance to construe the terms
“employer” and “employee” broadly,
courts “must examine the economic reality of the
working relationship to assess whether an entity is an
employer.” Ivery, 280 F.Supp.3d at 1127
(quoting Hollins v. Regency Corp., 867 F.3d 830, 835
(7th Cir. 2017)). Whether an entity is an employer under the
FLSA is a question of law. Karr v. Strong Detective
Agency Inc., 787 F.2d 1205, 1206-07 (7th Cir. 1986).
examine the “economic realities” of working
relationships, courts look to “the totality of the
circumstances” rather than applying “formalistic
labels or common law concepts of agency.” Villareal
v. El Chile, Inc., 776 F.Supp.2d 778, 785 (N.D. Ill.
2011) (citations omitted). While there is no set framework
for establishing an employer-employee relationship, courts
look at whether the defendant (1) had the power to hire and
fire the employee, (2) supervised and controlled the
employee's work schedule or conditions of employment, (3)
determined the rate and method of payment, and (4) maintained
employment records. See Ivery, 280 F.Supp.3d at 1128
(collecting cases); see also Moldenhauer v.
Tazewell-Pekin Consol. Commc'ns. Cent., 536 F.3d
640, 644 (7th Cir. 2008) (holding that “these factors
are certainly relevant in deciding whether an
employer-employee relationship exists, ” but they are
not “the only relevant factors, or even the most
employee can have more than one employer at a time. See
Falk v. Brennan, 414 U.S. 190, 195 (1973). Federal
regulations contemplate that entities that share common
control over an employee may be deemed “joint
employers” under the FLSA. See 29 C.F.R.
§ 791.2(a). Courts apply the same economic reality test
“to determine whether more than one employer may be
held liable under the FLSA.” Ivery, 280
F.Supp.3d at 1128 (citing Reyes v. Remington Hybrid Seed
Co., Inc., 495 F.3d 403, 406-08 (7th Cir. 2007)). Though
the joint-employer analysis depends on the specific facts of
each case, “for a joint-employer relationship to exist,
each alleged employer must exercise control over the working
conditions of the employee.” Moldenhauer, 536
F.3d at 644.
argues that he pleaded a joint-employer relationship between
MDW and SSP. Boyce alleges that SSP is one of MDW's
“managing agents” and “manages and acts as
the parent organization” of MDW. (Dkt. 1 ¶¶
8-9.) Boyce also alleges that SSP and MDW “jointly . .
. controlled and implemented the policy, practice and
procedure of paying [him] for [his] rounded hours”
rather than recorded hours or all time worked. (Id.
¶ 60.) He further alleges that “Defendants,
” acting under SSP's control and with SSP's
knowledge, permitted him to begin working before his