R. Alexander Acosta, Secretary of Labor, United States Department of Labor v. Off Duty Police Services, Inc.

The way we work in America is changing. The

relationships between companies and their workers are more fluid and varied than in decades

past. Our task in this appeal is to apply traditional legal protections to one such relationship. In

the proceedings below, the district court decided that some of the workers for Off Duty Police

Services, Inc. (ODPS) were “employees” entitled to overtime wages under the Fair Labor

Standards Act (FLSA) while others were “independent contractors” who fell outside the scope of

the FLSA’s protections. Because our analysis leads us to conclude that all the workers were

employees under the FLSA, we AFFIRM the district court’s judgment in part, REVERSE in

part, and REMAND for further proceedings.

I. BACKGROUND

A. Factual History

ODPS offers private security and traffic control services in the Louisville, Kentucky area.

These services are simple—a typical day for an ODPS worker includes, for example, sitting in a

car with the lights flashing or directing traffic around a construction zone. Most of ODPS’s

workers are sworn officers, meaning they work for some law-enforcement entity in addition to

working for ODPS. Other workers are nonsworn, meaning they generally have no background in

law enforcement. Although ODPS pays sworn officers more per hour, the tasks performed by

sworn and nonsworn workers are basically the same. Many ODPS workers, both sworn and

nonsworn, have routinely worked for ODPS for years, some for a decade or more.

Darrell Spurgeon, the founder and vice president of ODPS, collects assignments for

ODPS’s workers by contracting with businesses in and around Louisville. Spurgeon uses

“schedulers,” whom ODPS also classifies as independent contractors,1

to keep track of these

customers’ work requests. The customers specify the services needed and the qualifications of



1The employment status of these schedulers is not at issue on appeal.

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 3

the requested workers. Spurgeon or one of his schedulers then offers the assignments to workers

who meet those qualifications. Workers can choose to accept or reject a job, although multiple

witnesses testified that Spurgeon would discipline them—for example, by withholding future

assignments—if they declined work. Some workers referred to this as being placed in “time

out.”

If workers accept a job, ODPS tells them where to report, when to show up, and whom to

speak with when they arrive. ODPS sometimes provides workers with supplies and equipment

necessary for the assignment, including stop-and-go signs, reflective jackets, and badge-shaped

patches. But workers must pay for other equipment. In certain cases, for example, the cost of an

ODPS-branded shirt is deducted from workers’ paychecks. And all workers must own policestyle vehicles. While sworn police officers usually drive their police cruisers, nonsworn workers

must buy a police-style vehicle—usually a Crown Victoria—with their own money. Nonsworn

workers testified that they drive these vehicles both on the job and for personal use. In all, the

cost of the nonsworn workers’ investments ranges from roughly $3,000 to $5,000.

At the job site, workers follow the customer’s instructions, comply with ODPS’s standard

policies, and occasionally submit to the supervision of other ODPS workers. Sworn police

officers wear their official police uniforms, and nonsworn workers wear police-style uniforms

that bear ODPS-branded patches. With few exceptions, all workers are to remain clean-shaven.

Spurgeon and Frank Medieros, who helps manage the business, sometimes visit job sites to

inspect the setup and monitor workers’ compliance with these policies. In some instances, both

sworn and nonsworn workers have been disciplined by Spurgeon or Medieros for failing to

comply with ODPS’s dress and grooming requirements. Some sworn officers, however, testified

that they were rarely or never supervised at job sites.

After completing an assignment, workers send Spurgeon an invoice with the number of

hours they spent on the job. That practice started only after the Department of Labor (DOL)

began investigating ODPS’s recordkeeping practices. ODPS ordinarily uses these invoices to

pay workers an hourly wage, although infrequently workers are paid per project. At trial,

Spurgeon admitted that the information in these invoices is sometimes inaccurate or incomplete,

but he blamed any errors on his workers’ failure to submit accurate records.

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 4

ODPS considers all these workers to be independent contractors, regardless of the

compensation they receive, the work they perform, or their background in law enforcement. All

workers must sign “independent contractor agreements” that contain non-compete clauses

prohibiting them from working for ODPS’s customers for two years after their work with ODPS

ends. Because ODPS classifies its workers as independent contractors, it has never paid them

overtime wages.

B. Proceedings Below

The DOL brought this suit against ODPS under the FLSA, alleging that (i) all of ODPS’s

workers are employees entitled to overtime wages and (ii) ODPS violated the FLSA’s

recordkeeping requirements by failing to maintain accurate employment records. The district

court held a four-day bench trial at which 19 current and former ODPS workers testified. In its

post-trial decision, the district court held that ODPS’s nonsworn workers were employees

entitled to overtime wages under the FLSA. The court also determined that ODPS’s sworn

officers were independent contractors because they “simply were not economically dependent on

ODPS and instead used ODPS to supplement their incomes.” In response to the DOL’s claim

that ODPS violated the FLSA’s recordkeeping requirements, the court acknowledged that some

of ODPS’s records were “faulty” but found that these errors did not violate the FLSA because

ODPS did not “knowingly fail[] to maintain accurate records.”

After the parties briefed the issue of damages, the court entered a final judgment detailing

the back wages owed by ODPS to its nonsworn workers. Both parties filed notices of appeal. In

this consolidated appeal, the DOL challenges the district court’s decision that (i) ODPS’s sworn

officers were independent contractors and (ii) ODPS did not violate the FLSA’s recordkeeping

requirements. ODPS appeals the district court’s (i) conclusion that the nonsworn workers were

employees entitled to overtime wages under the FLSA and (ii) calculation of back wages.

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 5

II. ANALYSIS

We review a district court’s post-trial factual findings for clear error. Sharpe v. Cureton,

319 F.3d 259, 269 (6th Cir. 2003). We review de novo the district court’s application of those

factual findings to the relevant legal standards. Solis v. Laurelbrook Sanitarium & Sch., Inc.,

642 F.3d 518, 522 (6th Cir. 2011).

A. Employment Relationship

The FLSA is “a broadly remedial and humanitarian statute . . . designed to correct ‘labor

conditions detrimental to the maintenance of the minimum standard of living necessary for

health, efficiency, and general well-being of workers.’” Donovan v. Brandel, 736 F.2d 1114,

1116 (6th Cir. 1984) (quoting Dunlop v. Carriage Carpet Co., 548 F.2d 139, 143 (6th Cir.

1977)). With that goal in mind, the FLSA requires employers to pay overtime wages to

employees who work more than 40 hours in a week. 29 U.S.C. § 207(a)(1). The definition of

“employee” in this context “is strikingly broad” and includes “some parties who might not

qualify as such under a strict application of traditional agency law principles.” Keller v. Miri

Microsystems LLC, 781 F.3d 799, 804 (6th Cir. 2015) (internal quotation marks omitted)

(quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992)). To determine whether

a worker fits within this expansive definition, “we must look to see whether [the] worker, even

when labeled as an ‘independent contractor,’ is, as a matter of ‘economic reality,’ an employee.”

Id. (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947)).

This “economic reality” test considers six factors:

1) the permanency of the relationship between the parties; 2) the degree of skill

required for the rendering of the services; 3) the worker’s investment in

equipment or materials for the task; 4) the worker’s opportunity for profit or loss,

depending upon his skill; . . . 5) the degree of the alleged employer’s right to

control the manner in which the work is performed . . .;” and 6) “whether the

service rendered is an integral part of the alleged employer’s business.”

Id. at 807 (quoting Brandel, 736 F.2d at 1117 & n.5). None of these factors is determinative on

its own, and each must be considered “with an eye toward the ultimate question—[the worker’s]

economic dependence on or independence from” the alleged employer. Id. We address each of

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 6

these factors below, beginning with the least difficult and then turning to those that require the

most attention.

1. Integral Part of the Business

The first factor asks whether the services provided by the worker are integral to the

company’s business. “The more integral the worker’s services are to the business, then the more

likely it is that the parties have an employer-employee relationship.” Id. at 815 (citation

omitted). There is no doubt that the services offered by ODPS’s workers are integral to the

company. As its name implies, ODPS built its business around the security and traffic control

services provided by its workers. ODPS responds generally that these services are not integral to

its business because it is merely “an agent between its customers and independent sworn and

nonsworn officers.” But even if that characterization were true, ODPS could not function

without the services its workers provide. See, e.g., Schultz v. Capital Int’l Sec., Inc., 466 F.3d

298, 309 (4th Cir. 2006) (finding security guards were integral to a business where company

“was formed specifically for the purpose of supplying” private security). This factor cuts heavily

in favor of finding an employment relationship between ODPS and all its workers.

2. Degree of Skill Required

The next factor considers the worker’s skillset, which “must be evaluated with reference

to the task[s] being performed.” Brandel, 736 F.2d at 1118. The skills required to work for

ODPS are far more limited than those of a typical independent contractor. Cf. Werner v. Bell

Family Med. Ctr., Inc., 529 F. App’x 541, 544 (6th Cir. 2013) (affirming jury’s decision that

worker was an independent contractor where he had “specialized” and “unique training . . . that

no other worker could perform”). At trial, workers testified that the tasks they performed

required little skill, initiative, or training. One worker described his responsibilities this way:

“Well, sometimes we just had to sit in our cars with the lights flashing. Sometimes I would have

to actually get out and stand and be seen, and other times I would have to flag traffic.” In

describing private security assignments, another worker said that he “would show up at a site and

just make sure that everything was safe, locked up, or patrol the lots.” And another worker with

no experience in law enforcement said that he would simply “show[] up and watch for problems.

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 7

That was it.” He also testified that he felt like he could “do the job satisfactorily” because it

required only “[c]ommon sense.”

ODPS counters by pointing to the “high degree of skill and training required to become a

licensed police officer.” But as the district court correctly recognized, this factor does not

concern the skills possessed by a subset of ODPS’s workers; rather, it considers “the degree of

skill required for the rendering of the services.” Keller, 781 F.3d at 807 (emphasis added)

(citation omitted). The services provided by ODPS typically do not require the skill or training

of a licensed police officer, as demonstrated by the fact that some of ODPS’s workers have no

background in law enforcement. And as ODPS admits, its workers are required to attend only a

four-hour training session before they begin work. These facts favor employee status for all of

ODPS’s workers. See, e.g., id. at 809 (“[I]f the worker’s training period is short . . . then that

weighs in favor of finding that the worker is indistinguishable from an employee.” (citation

omitted)).

3. Investment in Specialized Equipment

The limited investment by ODPS workers in specialized equipment also supports

employee status for sworn and nonsworn workers. This factor requires comparison of the

worker’s total investment to “the company’s total investment, including office rental space,

advertising, software, phone systems, or insurance.” Id. at 810 (citation omitted). “The capital

investment factor is most significant if it reveals that the worker performs a specialized service

that requires a tool or application which he has mastered.” Brandel, 736 F.2d at 1118-19.

Here, ODPS periodically supplied workers with basic equipment necessary for the job,

including stop-and-go signs, reflective jackets, and badge-shaped patches with the ODPS logo.

For sworn police officers, the remaining items—including a police uniform and cruiser—

required little or no capital investment because the officers already had those items through their

police work. Some officers testified that they had to pay their police departments approximately

$50 to $200 per month to use police-issued equipment, but otherwise no additional investment

was necessary to work for ODPS. Nonsworn workers, however, had to obtain police-style

clothing and police-style vehicles. While acquiring uniforms entailed little expense, obtaining a

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 8

police vehicle required some investment. In all, the district court estimated that nonsworn

workers generally spent around $3,000 to $5,000 on necessary equipment, the majority of which

they spent on the vehicle.

As the district court correctly noted, the $3,000 to $5,000 spent by nonsworn workers

“pale[s] in comparison to the amount ODPS spent running its business per year,” which

Spurgeon estimated at around $200,000. And the vehicles purchased by nonsworn workers

could be used for any purpose, not just on the job. In Keller, we found that while “investment of

a vehicle is no small matter . . . that investment is somewhat diluted when one considers that the

vehicle is also used by most drivers for personal purposes.” Id. (citation and internal quotation

marks omitted). At trial, multiple nonsworn workers testified that they used their vehicles for

both professional and personal purposes.

Although the district court held that these investments supported employee status for the

nonsworn workers, the court decided that the sworn officers’ investments were a “non-factor.”

Presumably, these investments were considered a “non-factor” because sworn police officers

already possessed the necessary equipment before they began working for ODPS. But these

officers’ negligible costs must still be measured against ODPS’s significant annual costs. And

the cost of the sworn officers’ investment is relevant to another purpose of this inquiry: to

determine whether the disputed work involves a “specialized service that requires a tool or

application which [the worker] has mastered.” Brandel, 736 F.2d at 1118-19. The vehicles used

by sworn and nonsworn workers—which they simply parked and sat in for hours at a time—

required no specialized mastery. This limited investment in specialized equipment favors

employee status for sworn and nonsworn workers.

4. Permanency of Relationship

The remaining factors require more attention. The first of these is the permanency of the

relationship between ODPS and its workers, which looks to the “length and regularity of the

working relationship between the parties.” Keller, 781 F.3d at 807 (citation omitted).

Independent contractors “often have fixed employment periods and transfer from place to place

as particular work is offered to them, whereas employees usually work for only one employer

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 9

and such relationship is continuous and indefinite in duration.” Id. (internal quotation marks

omitted) (quoting Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1442 (10th Cir. 1998)).

That a party works for more than one company, however, is only “one factor of many to consider

in determining whether a worker is economically dependent upon the defendant company,” and

“employees may work for more than one employer without losing their benefits under the

FLSA.” Id. at 808 (citations omitted).

Although ODPS’s workers accepted jobs intermittently, they often worked for ODPS for

years—or, in some cases, decades—at a time. Cf. Scantland v. Jeffry Knight, Inc., 721 F.3d

1308, 1318 (11th Cir. 2013) (finding the permanence factor supported employee status where

plaintiffs worked for a company “an average of more than five years”). And the length of these

relationships did not depend on the worker’s status as sworn or nonsworn. Multiple nonsworn

workers testified that they had worked for ODPS for many years. Two sworn officers testified

that they had worked for ODPS for almost two decades, and others testified that they had been

with ODPS for close to a decade.

In addition to length, the regularity of the workers’ relationship with ODPS also favors

employee status. Once again, this consistency did not depend on the worker’s status as sworn or

nonsworn. Multiple nonsworn workers testified that ODPS had been their sole employer for

years at a time. Even those workers who sometimes accepted other work reported that they spent

the majority of their time working for ODPS. And while the sworn officers maintained day jobs

in law enforcement, many reported working consistently for ODPS throughout the year. One

officer testified, for example, that he had routinely worked at least 20 to 25 hours per week for

ODPS for “five or six years.” Another officer testified that he had often worked for ODPS “at

least 50 hours a week or more,” and that his periodic work for other companies was not “on a

permanent basis like working for ODPS.”

Despite the long, consistent relationship between ODPS and many of its sworn officers,

the district court determined that the work performed by these officers lacked the permanence

necessary to establish an employment relationship. Noting that the officers had “other

employment and sources of income,” it chose to “[f]ram[e] the issue in terms of whether the

workers listed [by the DOL] were ‘economically dependent upon ODPS.’” Thus framed, the

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 10

district court found that “the sworn officers were not economically dependent upon ODPS, but

the eight [nonsworn workers] who testified to ODPS being their sole source of income were.”

On that basis, the district court decided that the permanence factor supported employee status for

only the nonsworn workers.

This conclusion was mistaken for two reasons. First, the analysis merged the

permanence factor with the ultimate question of the workers’ economic dependence on ODPS.

The test of a worker’s economic dependence looks to all six of the factors discussed above and

below. The permanence factor, which focuses on the length and consistency of the officers’

work, is only one component of that test.

Second, whether a worker has more than one source of income says little about that

worker’s employment status. Many workers in the modern economy, including employees and

independent contractors alike, must routinely seek out more than one source of income to make

ends meet. An income-based rule would deny that economic reality. It would also suffer from

problems of practical application. Such a test would, for example, lead to classification of the

same worker as an independent contractor during the periods in which she had more than one

source of income but then as an employee during the (often brief) periods in between. And as

the Fifth Circuit noted in Halferty v. Pulse Drug Co., 821 F.2d 261 (5th Cir. 1987), an incomebased test would also mean that certain “wealthy persons could never be employees under the

FLSA.” Id. at 268. On the other end of the scale, such a rule would risk encouraging employers

to “avoid liability to workers simply by paying them so low a wage that the workers are forced to

live on other sources of income.” Id. That outcome would frustrate the first principles of the

FLSA, which is designed to ensure that workers earn a fair wage.

To the extent that a worker’s source of income is relevant, it is only so because it speaks

indirectly to the question of whether the individual works for more than one company. As we

recognized in Keller, however, that an individual works for more than one company is only one

consideration of many to make “in determining whether a worker is economically dependent

upon the defendant company.” 781 F.3d at 808. Further, this fact is most relevant when it

suggests that a worker tends to “transfer from place to place as particular work is offered to

[him].” Id. at 807 (citation omitted). In this case, the sworn officers did not bounce from one

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 11

company to another in search of new work. Although some officers testified that they

occasionally accepted jobs from other companies, the consistent theme throughout trial was that

the officers had two primary sources of employment—their day jobs and their positions at

ODPS. That is not the kind of itinerant work that independent contractors ordinarily perform.

Given the length and consistency of the relationship between ODPS and its workers, the

permanence factor supports employee status for both sworn and nonsworn workers.

5. Opportunity for Profit or Loss

The next factor asks whether the workers had “opportunities for profit or loss dependent

on [their] managerial skill.” Schultz, 466 F.3d at 307. Courts evaluate this factor by asking if

workers “could exercise or hone their managerial skill to increase their pay.” Id. at 308. This

factor may favor independent contractor status if, for example, a worker uses his managerial skill

to “improve his efficiency such that he c[an] complete more” jobs per day. Keller, 781 F.3d at

813.

The facts do not suggest that ODPS’s workers could “exercise or hone” their managerial

skills to increase their pay. To begin, workers were not well-positioned to apply these skills

because completion of ODPS’s jobs required limited skill, experience, or initiative. And to the

extent some skill was required, workers earned a set hourly wage regardless of the skill they

exercised. In rare cases, ODPS would pay workers per project; but those, too, were flat

payments that did not depend on the skill applied by the worker.

ODPS maintains that because workers could accept or reject work, they effectively

controlled their opportunities for profit or loss by managing their workload. While the decision

to accept or reject work is a type of managerial action, the relevant question is whether workers

could increase profits through managerial skill. See id. at 812. It requires little skill to determine

whether one is available at a certain day and time or whether inclement weather or some other

factor might make a job less desirable. And while the ability to control one’s schedule may, in

some circumstances, allow more efficient workers to maximize profits, ODPS’s workers had no

such opportunity. ODPS’s assignments required workers to be present for set periods of time,

regardless of what skills they exercised, so workers could not complete jobs more or less

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 12

efficiently than their counterparts. On this basis, the court in Schultz found that workers could

not increase profits through managerial skill because “[t]here was no way [workers] could finish

a shift more efficiently or quickly in order to perform additional paid work.” 466 F.3d at 308

(citation omitted). Likewise, neither sworn nor non-sworn workers appear to have been at risk of

a loss based on their decision to work or not. Decreased pay from working fewer hours does not

qualify as a loss. See Dole v. Snell, 875 F.2d 802, 810 (10th Cir. 1989) (“A reduction in money

earned by the [cake] decorators is not a ‘loss’ sufficient to satisfy the criteria for independent

contractor status.”).

In these respects, this case is materially different from Karlson v. Action Process Serv.

& Private Investigations, LLC, 860 F.3d 1089 (8th Cir. 2017), on which ODPS relies. In

Karlson, the Eighth Circuit upheld a jury’s conclusion that process servers were independent

contractors on evidence that the process servers were paid a flat rate for each job, jobs could take

anywhere from “a few minutes to several hours,” and some jobs had “priority” status. 860 F.3d

at 1094. As a result, a process server could make a profit by being more efficient and managing

different assignments. In contrast, the officers here typically earned the same compensation per

hour regardless of the project and could not make more profit by managing different

commitments.

Because ODPS’s workers earned set wages to perform low-skilled jobs for fixed periods

of time, this factor supports employee status for sworn and nonsworn workers.

6. Right to Control

The last factor looks to the degree of control exercised by the company over the workers.

To guide this evaluation, we ask whether the company “retains the right to dictate the manner” of

the worker’s performance. Brandel, 736 F.2d at 1119.

ODPS maintained a “policies and procedures” document stating that a worker’s

noncompliance with the policies would “result in immediate termination.” Those policies and

procedures addressed: (1) the type and color of uniform that may be worn, (2) vehicle and light

requirements, (3) rules for exchanging job assignments with other ODPS workers, and

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 13

(4) general rules on workplace presentation and conduct. ODPS also represented to its

customers that it would inspect the work sites and supervise its workers.

ODPS contends that, in practice, it never instituted or exercised such control. It is true

that ODPS left some aspects of the workers’ performance to their discretion. Workers had the

right, for example, to accept or reject assignments. Witnesses also testified that Spurgeon and

Medieros did not regularly supervise workers’ day-to-day performance. Some sworn officers

testified that ODPS rarely, if ever, supervised their work or disciplined them for violating

company policies. And in addition to ODPS’s policies, the workers’ performance depended in

part on the on-site instructions they received from ODPS’s customers, not just the directions they

received from ODPS.

Several key facts, however, counterbalance this evidence. Although workers could

accept or reject assignments, multiple workers testified that Spurgeon would discipline them if

they declined a job. Workers referred to this as being placed in “time out.” One sworn officer

testified that if he declined a job during a phone call with Spurgeon, “[t]he phone would just go

dead.” These hang-ups signaled more than Spurgeon’s frustration; witnesses testified that

Spurgeon would then withhold new jobs from that worker for up to a week. The same officer

testified, for example, that he would not hear from Spurgeon “for at least three days to a week” if

he declined a job. Although he “would call and try to talk to him” during that period, he would

“never get a response.” Another witness who worked both as a sworn officer and a nonsworn

worker testified that “it was just pretty much implied” that workers would accept jobs “because,

you know, if [they] turned a job down, [they] would get a time out most times.” A third worker

gave similar testimony. And although workers could choose to stop working for ODPS

altogether, the non-compete clause in the agreements they signed with ODPS—which prevented

them from working for ODPS’s customers for two years after severing ties with ODPS—limited

their ability to do so. In fact, Spurgeon testified that he had sued to enforce these non-compete

provisions in the past.

When workers did accept assignments, ODPS set the rate at which the workers were paid.

ODPS would tell the workers where to go for the job, when to arrive, and whom they should

contact when they got there. And although the workers followed customers’ instructions at the

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job site, they were also periodically supervised by Spurgeon or Medieros. One sworn officer, for

example, testified that Spurgeon and Medieros were his “supervisors.” He recalled that

Spurgeon visited his job site on “maybe three occasions,” and Medieros would visit “once or

twice, three times a month maybe, depending on what was going on.” Another worker who

identified Medieros as his “supervisor” said that Medieros would instruct him on “basic stuff,”

like “how [they were] going to set up” or “where to put [their] cars.” Many other workers

testified that Medieros would occasionally check on them. And Medieros admitted at trial that

he told a DOL investigator that he was “a supervisor” who went to job sites to “make sure the

guys [were] doing what they [were] supposed to do.”2



In addition to inspecting job sites, ODPS also required workers to comply with certain

dress and grooming policies. One sworn officer testified that Medieros visited a job site and “got

on to” him and another officer after he discovered that they were both wearing shorts and that the

other officer had a goatee. Spurgeon later called the chief of the police department where the

two officers worked and “raised Cain” about the fact that they had arrived at the site wearing

shorts. Another worker testified that he was told to “shave [his] beard or not come back.” Many

other witnesses, including Medieros, testified that ODPS did not allow workers to grow beards.

Taking all this evidence into account, the district court correctly found that the control

factor supported employee status for the nonsworn workers. But as to the sworn officers, the

district court determined “that there was more scrutiny exerted over the nonsworn [workers] than

the sworn officers” and that the testimony of the “sworn officers tended to indicate that they

were not supervised closely and not reprimanded or disciplined.” The five sworn officers called

by ODPS testified that they were rarely if ever supervised or disciplined by ODPS; on the other

hand, the three sworn officers called by the DOL testified that they were repeatedly supervised

and/or disciplined. In what amounted to a credibility contest between the parties’ witnesses, it

was not clear error for the district court to conclude that the sworn officers received less

supervision and discipline than the nonsworn workers or that the sworn officers on the whole

were not supervised closely.



2Medieros additionally testified that calling himself a supervisor was “not a good choice of words” and that

he had “self-generated” the title.

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 15

Even accepting that factual finding, however, this factor does not clearly support

independent contractor status for ODPS’s sworn officers. Although ODPS did not supervise the

day-to-day performance of its workers, such close supervision is not necessary to establish

control. See, e.g., Superior Care, 840 F.2d at 1060 (finding employer exercised necessary

control when it visited job sites “once or twice a month” and “unequivocally expressed the right

to supervise” workers’ performance and noting that “[a]n employer does not need to look over

his workers’ shoulders every day in order to exercise control” (citation omitted)). Further, the

level of supervision necessary in a given case is in part a function of the skills required to

complete the work at issue. The routine traffic and security work performed by ODPS’s sworn

officers, which often involved sitting in a car for hours at a time, did not require more than

periodic supervision. As we noted in Peno Trucking, Inc. v. Commissioner of Internal Revenue,

“[t]he absence of need to control should not be confused with the absence of right to control,”

and the actual exercise of control “requires only such supervision as the nature of the work

requires.”3

296 F. App’x 449, 456 (6th Cir. 2008) (internal quotation marks omitted) (quoting

McGuire v. United States, 349 F.2d 644, 646 (9th Cir. 1965)); see also Brandel, 736 F.2d at 1119

(noting that the control test asks whether a company “retains the right to dictate the manner in

which the” worker performs (emphasis added)); Keller, 781 F.3d at 815 (finding that a fact issue

existed under the FLSA about whether a company “had the power to discipline and control” its

workers (emphasis added)). In this case, ODPS had a limited need to exercise its power to

supervise the sworn officers, who already had far more experience and training than necessary to

perform the work assigned.

These facts do not break cleanly in favor of employee or independent contractor status for

ODPS’s sworn officers. Although routine supervision was unnecessary in this context, the

testimony of some sworn officers indicated that ODPS’s supervision fell short under even the

most liberal interpretation of the control test. While some sworn officers testified that ODPS



3The court in Peno Trucking considered the control test in the context of the United States Tax Court’s

classification of workers as employees under provisions of the Internal Revenue Code. 296 Fed. App’x at 455. The

test in this case calls for at least as expansive a definition of control. Cf. Keller, 781 F.3d at 804 (describing the

definition of “employee” under the FLSA as “strikingly broad” (citation omitted)); see also Donovan v.

DialAmerica Mktg., Inc., 757 F.2d 1376, 1382 (3d Cir. 1985) (“Congress and the courts have both recognized that,

of all the acts of social legislation, the Fair Labor Standards Act has the broadest definition of ‘employee.’”

(citations omitted)).

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 16

periodically supervised and disciplined them, others said that supervision and discipline were

rare and, in some cases, non-existent. And while some sworn officers testified that they were

punished for declining work, others said they were not. In view of these inconsistencies, the

evidence does not readily favor either party’s position with respect to the sworn officers.

7. Balancing the Factors

For the reasons explained above, five of the six economic-reality factors support finding

an employment relationship between ODPS and all its workers. The record shows that ODPS’s

workers were an integral part of ODPS’s business, that they performed low-skilled jobs at a set

rate of pay for fixed periods of time, that they overall made limited investments in specialized

equipment, and that they worked for ODPS consistently over the course of many years. The

remaining factor—ODPS’s right to control its workers’ performance—favors employee status

for the nonsworn workers and, in the case of the sworn officers, is evenly balanced in support of

both parties’ positions.

The weight of these factors must be balanced in light of the FLSA’s “strikingly broad”

definition of “employee.” Keller, 781 F.3d at 804 (citation omitted). In this balancing, we

remain mindful of the Supreme Court’s instruction to avoid “a ‘narrow, grudging’ interpretation

of the FLSA” and “to remember its ‘remedial and humanitarian’ purpose.” Monroe v. FTS USA,

LLC, 860 F.3d 389, 403 (6th Cir. 2017) (citations omitted). To accomplish that purpose, the test

must account for the full range of factors relevant to a worker’s employment status. Taking all

these factors into consideration with an eye on the ultimate question of economic dependence,

ODPS’s workers, both sworn and nonsworn, were employees entitled to overtime wages under

the FLSA.

B. Recordkeeping Requirements

Next, the DOL appeals the district court’s conclusion that ODPS did not violate the

FLSA’s recordkeeping requirements. Under § 29 U.S.C. 211(c), employers must “make, keep,

and preserve such records of the persons employed by [them] and of the wages, hours, and other

conditions and practices of employment maintained by [them] . . . as necessary or appropriate for

the enforcement of the provisions of” the FLSA. At trial, the DOL’s investigator testified that

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 17

many records of the hours worked by ODPS’s employees were either missing, inaccurate, or

incomplete. Spurgeon admitted that some of ODPS’s records were inaccurate or incomplete.4



And the district court agreed that ODPS had failed to maintain accurate and complete records.

The post-trial decision, however, held that ODPS had not violated the FLSA’s recordkeeping

requirements because the evidence did not show that ODPS had “knowingly failed to maintain

accurate records.”

Section 211(c) does not contain a knowledge requirement. Another provision, 29 U.S.C.

§ 215(a)(5), does make it unlawful to:

. . . violate any of the provisions of section 211(c) of this title, or any regulation or

order made or continued in effect under the provisions of section 211(d) of this

title, or to make any statement, report, or record filed or kept pursuant to the

provisions of such section or of any regulation or order thereunder, knowing such

statement, report, or record to be false in a material respect.

This provision does proscribe “knowing[ly]” making false statements in employment records.

But that knowledge requirement applies only to an employer’s material misrepresentation in a

“statement, report, or record.” To violate § 211(c), by contrast, an employer could (as ODPS did

here) fail to maintain certain records at all or fail to preserve them properly. And by its plain

terms, § 215(a)(5) makes it unlawful “to violate any of the provisions of section 211(c) . . . or to

make any statement, report, or record . . . knowing such statement, report, or record to be false in

a material respect.” (emphasis added). The statute thus makes it unlawful both to fail to make,

keep, or preserve records under § 211(c) or to make those records with the knowledge that they

are false. That the statute expressly imposes a knowledge requirement for only the latter

violation suggests that violations of the former do not carry the same requirement. See, e.g., S.

Rehab. Grp., P.L.L.C. v. Burwell, 683 F. App’x 354, 363 (6th Cir. 2017) (“[W]hen the legislature

uses certain language in one part of the statute and different language in another, the court



4On appeal, ODPS briefly argues (without citation) that “ODPS has met the recordkeeping requirement by

maintaining time records in the form of the invoices that officers submitted in order to receive payment for services

provided.” Apart from this unsupported sentence, ODPS makes no effort to explain why these invoices were

sufficient or to refute the trial testimony demonstrating that ODPS’s records were often missing, inaccurate, or

incomplete. Without more, this argument is forfeited. See, e.g., Hensley v. Gassman, 693 F.3d 681, 688 (6th Cir.

2012) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed [forfeited].” (citation omitted)).

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 18

assumes different meanings were intended.” (internal quotation marks omitted) (quoting

DePierre v. United States, 564 U.S. 70, 83 (2011)).5

This is also consistent with the wellestablished principle that “it is the employer who has the duty under [the FLSA] to keep proper

records of wages, hours and other conditions and practices of employment and who is in position

to know and to produce the most probative facts concerning the nature and amount of work

performed.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). We therefore

vacate the district court’s determination that ODPS did not violate § 211(c) and remand for

proceedings consistent with this opinion.6

On remand, the district court shall reconsider the

DOL’s request for injunctive relief and, as necessary, exercise its discretion under 28 U.S.C.

§ 217.

C. Back Wages Calculation

Finally, ODPS challenges the district court’s calculation of back wages owed by ODPS to

three workers. Due to ODPS’s inadequate recordkeeping, these calculations were based in part

on inaccurate or incomplete records. In cases where an “employer’s records are inaccurate or

inadequate . . . an employee has carried out his burden if he proves that he has in fact performed

work for which he was improperly compensated and if he produces sufficient evidence to show

the amount and extent of that work as a matter of just and reasonable inference.” U.S. Dep’t of

Labor v. Cole Enterprises, Inc., 62 F.3d 775, 779 (6th Cir. 1995) (quoting Mt. Clemens, 328 U.S.

at 687). Once the employee makes this showing, “[t]he burden then shifts to the employer to

come forward with evidence of the precise amount of work performed or with evidence to

negative the reasonableness of the inference to be drawn from the employee’s evidence.” Id.



5District courts examining § 211(c) have also found that it does not carry a knowledge requirement. See,

e.g., Perez v. Oak Grove Cinemas, Inc., 68 F. Supp. 3d 1234, 1246 (D. Or. 2014) (holding that lack of intent “is not

a defense to a recordkeeping violation” under the FLSA (citation omitted)); Nieddu v. Lifetime Fitness, Inc., 38 F.

Supp. 3d 849, 864–65 (S.D. Tex. 2014) (rejecting claim that employees bear the burden of keeping accurate records

and noting that “[t]he obligation [to pay overtime under the FLSA] is the employer’s and it is absolute,” and the

employer “cannot discharge it by attempting to transfer his statutory burdens of accurate record keeping” (internal

quotation marks omitted) (quoting Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir. 1959)); Solis v.

SCA Rest. Corp., 938 F. Supp. 2d 380, 398 (E.D.N.Y. 2013) (finding that a “failure to make, keep, and preserve

adequate and accurate records” under the FLSA is “a per se violation of the Act”).

6We further note that the district court elsewhere properly considered ODPS’s willfulness (or lack thereof)

in violating the FLSA, concluding that the two-year rather than three-year statute of limitations applied because

there was insufficient evidence that ODPS’s violations were willful.

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 19

In this case, ODPS appeals the district court’s calculation of back wages owed by ODPS

to Frank Medieros, Steven Newman, and Jason Petra. We address the damages owed to each

worker in turn.

1. Frank Medieros

The district court calculated the back wages owed to Medieros in the same way it

calculated the back wages owed to other nonsworn workers—by dividing the amount he was

paid by his hourly rate. ODPS argues that the district court should have used a different method

to calculate Medieros’s back wages because of the “unique factors regarding [his] varying

services provided to ODPS customers, and the unique nature of his compensation.” In addition

to working as a security guard and traffic controller, Medieros also helped ODPS schedule other

workers’ assignments and recruited new customers to the business. For scheduling another

worker on a job, Medieros received one dollar for every hour of service performed by the worker

on that job; for recruiting a new customer, he received ten percent of the profits generated by that

customer.

ODPS does not argue that Medieros’s scheduling or recruiting work or additional forms

of compensation are exempt from the FLSA’s overtime requirements. Instead, ODPS claims that

the district court should have used some unspecified alternative method of calculating

Medieros’s total hours and compensation to account for his varied work responsibilities. In its

briefing in the district court, ODPS announced that “[b]ased on relevant records,” Medieros

“only had a single week in which he provided services to an ODPS customer for more than 40

hours in a week.” But ODPS provided no citation to these “relevant records,” which in any

event do not address Medieros’s other work activities,7 nor has it proposed any alternative

method of calculating Medieros’s back wages on appeal.

ODPS insists that it has no obligation “to ‘adequately explain’ its proposed damages

calculations.” Citing Mt. Clemens, ODPS claims that its only burden is to “negate the

reasonableness” of the DOL’s proposed calculation, not to offer a reasonable alternative. But



7

In his interview with the DOL investigator, which was memorialized in a personal interview statement

admitted into evidence, Medieros reported that he worked an average of 50 hours per week.

Nos. 17-5995/6071 Acosta v. Off Duty Police Servs., et al. Page 20

this argument misses the point. The reasonableness of the DOL’s proposed calculation depends

in part on the availability of other, more reasonable alternatives to that proposal. The fact that

ODPS cannot identify any reasonable alternative to the DOL’s calculation is highly probative of

whether the DOL’s proposed method is reasonable. And more importantly, to the extent that the

DOL’s calculation provides only a rough estimate of the back wages owed to Medieros, that

imprecision is a result of ODPS’s failure to keep accurate and complete records. Courts will not

punish employees for their employer’s failure to comply with the FLSA’s recordkeeping

requirements. “Disapproving of an estimated-average approach simply due to lack of complete

accuracy would ignore the central tenant of Mt. Clemens—an inaccuracy in damages should not

bar recovery for violations of the FLSA or penalize employees for an employer’s failure to keep

adequate records.” Monroe, 860 F.3d at 412. Although the calculation adopted by the district

court may be imprecise, it is the best method available in light of ODPS’s failure to maintain

accurate and complete records. We therefore affirm the district court’s calculation.

2. Steven Newman and Jason Petra

ODPS also contends that Newman and Petra should not have received overtime wages

for work performed during the periods in which they were sworn officers. This argument

depends on the conclusion that only ODPS’s nonsworn workers were employees entitled to

overtime wages. Because we reject that premise, Newman’s and Petra’s status as sworn or

nonsworn is irrelevant to the proper calculation of back wages. The district court’s calculation

did not attempt to distinguish between the periods in which Newman and Petra were sworn or

nonsworn, and we find no cause to disturb its original calculation.

For the foregoing reasons, we AFFIRM the district court’s (1) conclusion that ODPS’s

nonsworn workers were employees under the FLSA and (2) calculation of back wages owed by

ODPS to its nonsworn workers, and we REVERSE the district court’s (3) decision that ODPS’s

sworn officers were independent contractors under the FLSA and (4) determination that ODPS

did not violate the FLSA’s recordkeeping requirements. We REMAND for further proceedings

consistent with this opinion.