Hurt v. Commerce Energy, Inc., No. 18-4058 (6th Cir. 2020)Annotate this Case
Plaintiffs were employed by Just Energy, a group of affiliated energy supply companies, as door-to-door solicitors. Just Energy paid them exclusively on a commission basis. Plaintiffs signed independent contractor agreements with confidentiality, non-disparagement, non-exclusive, and non-compete clauses; used a verbatim script with customers; were typically required to attend daily meetings; and were driven to the field in teams led by supervisors. Any work breaks were controlled by supervisors. Some Plaintiffs testified they were required to work on specific days and hours. They had to adhere to a dress code, wearing a shirt that prominently displays the company’s name. Just Energy could reject any customer’s application and commissions would not be paid. Of the 3,840 Plaintiffs with compensation data available, 214 made no money; 69% of the individuals made under $1,000 in total compensation.
Plaintiffs sued, alleging that Just Energy misclassified them as outside salespeople in order to qualify for an exemption from the Fair Labor Standards Act (FLSA) and the Ohio Minimum Fair Wage Standards Act (OMFWSA). The court granted conditional class certification and instructed the jury “to consider the extent to which the employee has the authority to bind the company” and whether “the employer retains and/or exercises discretion to accept or reject any transactions for reasons that are unrelated to regulatory requirements.”
The jury found Just Energy liable for minimum wage and overtime pay under the FLSA and the OMFWSA. The Sixth Circuit affirmed, noting that Just Energy retained discretion to reject the sale. Plaintiffs did not benefit from minimal supervision; their jobs did not comport with the purpose of the outside sales exemption. The court upheld the admission of compensation evidence and the jury instruction.