Rhea Lana, Inc. v. United States

Katsas, Circuit Judge, concurring: Rhea Lana argues that its workers are volunteers-and therefore not employees-under the Fair Labor Standards Act. On the facts of this case, it was not arbitrary for the Department of Labor to find that the workers, who expected to and did receive in-kind compensation, are not volunteers. In an appropriate case, I would be open to the argument that workers like Rhea Lana's are not employees for a different reason: because they are independent contractors. The lack of "permanence or duration of the working relationship" weighs in favor of independent-contractor status. Morrison v. Int'l Programs Consortium, Inc. , 253 F.3d 5 , 11 (D.C. Cir. 2001). Here, that consideration seems to favor Rhea Lana strongly. As the Department's own investigator found, "[t]he persons in question work for relatively short periods of time at irregular intervals in between personal activities" and "work 2 times per year at the most." J.A. 303. It also appears that Rhea Lana has only limited control over "work schedules or conditions of employment"-another consideration favoring independent-contractor status. Morrison , 253 F.3d at 11 ; see J.A. 304-05 (finding that workers choose whether to work at individual sales and "feel free to bring helpers with them"). Nevertheless, Rhea Lana failed to argue that their workers are independent contractors, so I agree that we must affirm.