Raymond J. Donovan, Sec'y of Labor, United States Dep't of Labor v. Sabine Irrigation Co., Inc., C.H. Alberding, 695 F.2d 190 (5th Cir. 1983). · Go Syfert
Raymond J. Donovan, Sec'y of Labor, United States Dep't of Labor v. Sabine Irrigation Co., Inc., C.H. Alberding, 695 F.2d 190 (5th Cir. 1983). Cases Citing This Book View Copy Cite
148 citation events (60 in the last 25 years) across 42 distinct courts.
Strongest positive: Angelica Popielewski et al v. Stratigos Dynamics Inc. (lawd, 2025-09-30) · Strongest negative: Biziko v. Van Horne (txnd, 2019-08-20)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Biziko v. Van Horne
N.D. Tex. · 2019 · signal: but see · confidence high
McLeod & Sons Packing Co., 765 F.2d 1317, 1327 (Sth Cir. 1985); but see Donovan v. Sabine Irrigation, 695 F.2d 190, 194 (Sth Cir. 1983) (holding the issue of whether or not a party is a joint employer for the purposes of the Fair Labor Standards Act is a question of fact).” In Beliz, the Fifth Circuit stated: “This court has repeatedly heid that the ultimate conclusion that an individual is an ‘employee’ within the meaning of the [Fair Labor Standards Act] is a legal determination rather than a factual one.” McLeod correctly points out that, while this rule has been stated repeatedly…
cited Cited "but see" Elizabeth Dole, Secretary of Labor, United States Department of Labor v. Elliott Travel & Tours, Inc. And Jared Schubiner
6th Cir. · 1991 · signal: but see · confidence high
But see Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir.) (whether party is employer is question of fact), cert. denied, 463 U.S. 1207 , 103 S.Ct. 3537 , 77 L.Ed.2d 1387 (1983).
cited Cited "but see" Sendhabhai Patel v. Dr. Alex Wargo, Etc.
11th Cir. · 1986 · signal: but see · confidence high
But see Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir.), cert. denied, 463 U.S. 1207 , 103 S.Ct. 3537 , 77 L.Ed.2d 1387 (1983). 2 .
discussed Cited "but see" Donovan v. I AND J, INC.
D.N.M. · 1983 · signal: but see · confidence high
The Ninth Circuit continued: “Reliance on erroneous advice is no bar to a finding of a ‘willful’ violation except for good faith reliance upon advice rendered by an appropriate government agency.” Marshall v. Union Pacific Motor Freight Co., 650 F.2d 1085, 1092-93 (9th Cir.1981); But see Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 196 (5th Cir.1983).
cited Cited as authority (rule) Angelica Popielewski et al v. Stratigos Dynamics Inc.
W.D. La. · 2025 · confidence medium
Invs., Inc., 998 F.2d 324, 329 (5th Cir. 1993) (citing Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983)).
discussed Cited as authority (rule) Irma McDonald et al v. Stratigos Dynamics Inc.
W.D. La. · 2025 · confidence medium
Invs., Inc., 998 F.2d 324, 329 (5th Cir. 1993) (citing Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983)). 2 “[A]ny employer who violates the FLSA minimum wage statute, 29 U.S.C. § 206 , or the FLSA maximum hours statute, 29 U.S.C. § 207 , is ‘liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.’” Clifton v. Famous Bourbon Mgmt.
discussed Cited as authority (rule) Kikuchi v. Silver Bourbon, Inc. (2×) also: Cited "see, e.g."
E.D. La. · 2025 · confidence medium
Doc. 128-3 at 2. 117 Id. at 22. 118 29 U.S.C. § 216 (b). 119 Reich, 998 F.2d at 329 (quoting 29 U.S.C. § 203 (d)). definition of employer must be liberally construed to effectuate Congress’ remedial intent.120 “To determine whether an individual or entity is an employer, the court considers whether the alleged employer: ‘(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.’”121 “In cases where there may be more…
discussed Cited as authority (rule) Taylor v. Tranquility Gardens, Inc.
S.D. Tex. · 2024 · confidence medium
Determining whether a person is an “employer” under the FLSA “must focus upon the totality of the circumstances, underscoring the economic realities of the [plaintiffs’] employment.” Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983).
discussed Cited as authority (rule) Secretary, Department of Labor v. MICA Contracting, LLC
S.D. Ohio · 2023 · confidence medium
“No one factor is dispositive; rather, it is incumbent upon the courts to transcend traditional concepts of the employer employee relationship and assess the economic realities presented by the facts of each case.” Id. (citing Donovan v. Sabine Irrigation Co., 695 F.2d 190, 195 (5th Cir. 1983) (whether party is employer is question of fact), cert. denied, 463 U.S. 1207 (1983)).
discussed Cited as authority (rule) Lirette v. Sonic Drive-In Corporation
E.D. La. · 2023 · confidence medium
A prima facie case under the Equal Pay Act has three elements: (1) the employer must be subject to the Equal Pay Act; (2) the employee's work must “requir[e] equal skill, effort, and responsibility under similar working conditions” to that of an opposite-sex comparator; and (3) the employee must be paid less than the comparator.23 While courts hold that Title VII’s definition of employer does not include individual supervisors, that EPA’s definition of that term has not been found to exclude individual liability.24 Instead, the Fifth Circuit has held that the FLSA's definition of emplo…
discussed Cited as authority (rule) Walsh v. Kynd Hearts Home Healthcare, LLC (2×)
E.D. Va. · 2022 · confidence medium
Mem. 5 (quoting Reich v. Monfort, Inc., 144 F.3d 1329 (10th Cir. 1998) (quoting Donovan v. Sabine Irrigation Co., 695 F.2d 190, 197 (5th Cir. 1983))).
discussed Cited as authority (rule) Rosales v. Industrial Sales & Services, LLC
S.D. Tex. · 2021 · confidence medium
The Fifth Circuit has held that this broad definition is crafted to effectuate the 2 Rosales’s brief cites a single case, Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983), for the proposition that whether a party is an employer under the FLSA is a question of fact.
discussed Cited as authority (rule) Secretary, Department of Labor v. MICA Contracting, LLC
S.D. Ohio · 2021 · confidence medium
“No one factor is dispositive; rather, it is incumbent upon the courts to transcend traditional concepts of the employer employee relationship and assess the economic realities presented by the facts of each case.” Id. (citing Donovan v. Sabine Irrigation Co., 695 F.2d 190, 195 (5th Cir. 1983) (whether party is employer is question of fact), cert. denied, 463 U.S. 1207 (1983)).
cited Cited as authority (rule) Koch v. Jerry W Bailey Trucking Inc
N.D. Ind. · 2020 · confidence medium
Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir. 1983).
discussed Cited as authority (rule) Defrese-Reese v. Healthy Minds Inc
W.D. La. · 2020 · confidence medium
Analyzing whether a person is an “employer” under the FLSA “must focus upon the totality of the circumstances, underscoring the economic realities of the [employee’s] employment.” Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983).
discussed Cited as authority (rule) Anderson v. Creve Coeur Urgent Care LLC
E.D. Mo. · 2019 · confidence medium
“A determination of whether an individual is an employer within the meaning of the FLSA is not governed by formalistic labels or a common law notion of the employment relationship.” Rikard, 2013 WL 5298460 at * 3 (citing Perez–Benites, 2011 WL 1978414 , at *8; Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983)).
discussed Cited as authority (rule) Ivery v. RMH Franchise Corp.
N.D. Ill. · 2017 · confidence medium
In examining the “economic realities” of working relationships, courts must look to “the totality of the circumstances” instead of applying “formalistic labels or common law concepts of agency.” Villareal, 776 F.Supp.2d at 785 (citing Goldberg, 366 U.S. at 33 , 81 S.Ct. 933 ; Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir. 1983)).
discussed Cited as authority (rule) Patricia Thompson v. Real Estate Mortgage Network
3rd Cir. · 2014 · confidence medium
As the Fifth Circuit explained in interpreting the FLSA’s analogous employer provision, an individual supervisor has adequate authority over the complaining employee when the supervisor “independently exercise[s] control over the work situation.” Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir.1984) (quoting Donovan v. Sabine Irrigation Co., 695 F.2d 190, 195 (5th Cir.1983)); see also Falk v. Bren *154 nan, 414 U.S. 190, 195 , 94 S.Ct. 427 , 38 L.Ed.2d 406 (1973) (holding that a company exercising “substantial control of the terms and conditions of the work” of the employees is…
cited Cited as authority (rule) Hilliard v. Parish
E.D. La. · 2014 · confidence medium
Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 195 (5th Cir.1983).
discussed Cited as authority (rule) Irizarry v. Catsimatidis
2d Cir. · 2013 · confidence medium
First, in Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.1983), the Fifth Circuit determined that an individual without an interest in the employer corporation could be held liable if he “effectively dominates its administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its employees” — or if he lacked that power but “independently exercised control over the work situation.” The Sabine court found the individual defendant liable because he “indirectly controlled many matters traditionally handled by an employer in relation t…
discussed Cited as authority (rule) Solis v. A-1 Mortgage Corp. (2×)
W.D. Pa. · 2013 · confidence medium
See, e.g., Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir.1991); Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir.1983) (referencing “the firmly-established guidon that the FLSA must be liberally construed to effectuate Congress’ remedial intent”), abrogated on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S. 128 , 108 S.Ct. 1677 , 100 L.Ed.2d 115 (1988); Bonnette v. Ca.
discussed Cited as authority (rule) William Ellington v. City of East Cleveland
6th Cir. · 2012 · confidence medium
Consistent with the case-by-case approach prescribed by Donovan , these factors are not exhaustive and “ ‘[n]o one factor is dispositive; rather, it is incumbent upon the courts to transcend traditional concepts of the employer-employee relationship and assess the economic realities presented by the facts of each case.’ ” Dole, 942 F.2d at 966 (quoting Donovan v. Sabine Irrigation Co., 695 F.2d 190, 195 (5th Cir.1983)).
discussed Cited as authority (rule) Haybarger v. Lawrence County Adult Probation & Parole
3rd Cir. · 2012 · confidence medium
As the Fifth Circuit explained in interpreting the FLSA’s analogous employer provision, an individual supervisor has adequate authority over the complaining employee when the supervisor “independently exercisefs] control over the work situation.” Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir.1984) (quoting Donovan v. Sabine Irrigation Co., 695 F.2d 190, 195 (5th Cir.1983)); see also Falk v. Brennan, 414 U.S. 190, 195 , 94 S.Ct. 427 , 38 L.Ed.2d 406 (1973) (holding that a company exercising “substantial control of the terms and conditions of the work” of the employees is an em…
discussed Cited as authority (rule) Martin v. Spring Break '83 Production, LLC (2×)
E.D. La. · 2011 · confidence medium
Investments, Inc., 998 F.2d 324 , 329 (5th Cir.1993) (quoting Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir. 1983) (internal quotation marks omitted)).
cited Cited as authority (rule) Villareal v. El Chile, Inc.
N.D. Ill. · 2011 · confidence medium
Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir. 1983).
cited Cited as authority (rule) Saavedra v. Lowe's Home Centers, Inc.
D.N.M. · 2010 · confidence medium
Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.1983).
cited Cited as authority (rule) Tullous v. Texas Aquaculture Processing Co. LLC
S.D. Tex. · 2008 · confidence medium
“Whether a party is an employer or joint employer for purposes of the FSLA is essentially a question of fact[.]” Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir.1983).
cited Cited as authority (rule) Itzep v. Target Corp.
W.D. Tex. · 2008 · confidence medium
Invs., Inc., 998 F.2d 324 , 329 (5th Cir.1993) (quoting Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194-95 (5th Cir.1983)).
discussed Cited as authority (rule) Herman v. Hector I. Nieves Transport, Inc.
D.P.R. · 2000 · confidence medium
“Neither an employer’s good faith nor his ignorance of the governing statutes and regulations precludes a finding of willfulness.” Dole v. Solid Waste Servs., Inc., 733 F.Supp. 895, 927 (E.D.Pa.1989) (quoting Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 196 (5th Cir.1983)) (citations omitted).
discussed Cited as authority (rule) Castillo v. Case Farms of Ohio, Inc.
W.D. Tex. · 1999 · confidence medium
Thus, as stated in another Fifth Circuit decision, the “determination of [the nature of an employment relationship] is not circumscribed by formalistic labels or common-law notions of the employment relationship, instead, our analysis must focus upon the totality of the circumstances, underscoring the economic *590 realities of the [workers’] employment.” Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir.1983).
discussed Cited as authority (rule) Herman v. RSR Security Services Ltd.
2d Cir. · 1999 · confidence medium
See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir.1991) (employer includes person who has “operational control” of day-to-day functions); Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983) (employer includes person who has “operational control”); Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.1983) (employer includes person who “effectively dominates its administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its employees”).
discussed Cited as authority (rule) Alexis M. Herman, Secretary of Labor, United States Department of Labor v. Rsr Security Services Ltd., Michael A. Stern, Individually and as President, and Frank Watkins, Individually and as Vice President, Murray Portnoy, Individually and as Chairman of the Board and Former Secretary of Rsr Security Services, Ltd., Defendant-Third-Party-Plaintiff-Appellant v. Marilyn J. Stern, Third-Party-Defendant-Appellee
2d Cir. · 1999 · confidence medium
See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir.1991) (employer includes person who has "operational control" of day-to-day functions); Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983) (employer includes person who has "operational control"); Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.1983) (employer includes person who "effectively dominates its administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its employees"). 33 Appellant also insists the district court's decision conflicts with holdings from other…
discussed Cited as authority (rule) Baystate Alternative Staffing, Inc. v. Herman
1st Cir. · 1998 · confidence medium
Inc., 62 F.3d 775, 778-79 (6th Cir.1995)(corporate officer with significant ownership interest held to be "employer," where individual was engaged in running the business, was authorized to issue checks on the corporate accounts, had custody and control with his wife of the employment records and was responsible for maintaining those records, and determined with his wife the employment practices for the business, including hiring, firing, rates of pay and hours of work); Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965-66 (6th Cir.1991) (corporate officer with significant ownership inte…
discussed Cited as authority (rule) Reich v. Monfort, Inc.
10th Cir. · 1998 · confidence medium
Under § 17 of the FLSA, 29 U.S.C. § 217 , once there is a finding that past wages are due the district court’s discretion “to refuse the Secretary’s request for a restitutionary injunction is limited, and must be tempered by considering whether the prerequisites for this remedy have been met and the policy reasons underlying Congress’ enactment of the legislation have been fulfilled.” See Reich v. IBP, Inc., 38 F.3d 1123, 1126-27 (10th Cir.1994) (quoting Donovan v. Sabine Irrigation Co., 695 F.2d 190, 197 (5th Cir.1983)).
discussed Cited as authority (rule) Bergstrom v. UNH
D.N.H. · 1996 · confidence medium
Cole Enterprises, 62 F.3d at 778-79 , "[p]ersonal liability has been found even against a corporate officer who lacks an ownership interest in the corporation or who has minimal ownership interest," Donovan, 712 F.2d at 1511 (citing Donovan v. Sabine Irrigation C o ., 695 F.2d 190, 194-95 (5th Cir. 1983), cert. denied, 463 U.S. 1207 (1983); Userv v. Weiner Bros., Inc., 70 F.R.D. 615, 617 (D.
discussed Cited as authority (rule) Bergstrom v. University of N.H.
D.N.H. · 1996 · confidence medium
Although a defendant’s shareholder status and operational control of the institutional defendant frequently are key indicia of employer status, see, e.g., Cole Enterprises, 62 F.3d at 778-79 , “[pjersonal liability has been found even against a corporate officer who lacks an ownership interest in the corporation or who has minimal ownership interest,” Donovan, 712 F.2d at 1511 (citing Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.1983), ce rt. denied, 463 U.S. 1207 , 103 S.Ct. 3537 , 77 L.Ed.2d 1387 (1983); Usery v. Weiner Bros., Inc., 70 F.R.D. 615, 617 (D.Conn.1976)).
cited Cited as authority (rule) Reich v. Priba Corp.
N.D. Tex. · 1995 · confidence medium
Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir.), cert. denied, 463 U.S. 1207 , 103 S.Ct. 3537 , 77 L.Ed.2d 1387 (1983). 20.
discussed Cited as authority (rule) Reich v. Ibp, Inc.
10th Cir. · 1994 · confidence medium
Tools, Inc., 666 F.2d 148, 157 (5th Cir.1982). 16 We believe the Fifth Circuit has enunciated the proper standard on this issue: 17 While a restitutionary injunction need not issue as a matter of course upon a finding of past wages due, the district court's discretion to deny the injunction where it makes such a finding is severely limited and must be exercised with an eye to the purposes of the act. 18 Grantham, 690 F.2d at 456 . 19 Once a finding of past due wages is made, however, the district court's discretion to refuse the Secretary's request for a restitutionary injunction is limited, a…
cited Cited as authority (rule) Reich v. IBP, Inc.
10th Cir. · 1994 · confidence medium
Donovan v. Sabine Irrigation Co., 695 F.2d 190, 197 (5th Cir.1983); see also Dunlop v. Gray-Goto, Inc., 528 F.2d 792, 796 (10th Cir.1976); Wirtz v. Malthor, Inc., 391 F.2d 1, 3 (9th Cir.1968).
discussed Cited as authority (rule) Reich v. Bay, Inc.
5th Cir. · 1994 · confidence medium
To find willfulness "entails a determination of whether 'there is substantial evidence in the record to support a finding that the employer knew or suspected that his actions might violate the FLSA." Donovan v. Sabine Irrigation, 695 F.2d 190, 196 (5th Cir.1983).
cited Cited as authority (rule) Reich v. Waldbaum, Inc.
S.D.N.Y. · 1993 · confidence medium
Donovan v. Sabrine Irrigation Co., Inc., 695 F.2d 190, 196 (5th Cir.), cert. denied, 463 U.S. 1207 , 103 S.Ct. 3537 , 77 L.Ed.2d 1387 (1983); Hill v. J.C.
discussed Cited as authority (rule) Larson v. School Bd. of Pinellas County, Fla.
M.D. Fla. · 1993 · confidence medium
An individual who lacks a possessory interest in a business or corporation may still be an “employer” under the FLSA if he or she “effectively dominates its administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its employees.” Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-195 (5th Cir.1983).
discussed Cited as authority (rule) Harold Frankel v. Bally, Inc.
2d Cir. · 1993 · confidence medium
Recognizing the expansive nature of the FLSA’s definitional scope and the remedial purpose underlying the legislation, courts construing this statute have adopted the “economic realities” test, under which individuals are considered employees if “as a matter of economic reality [they] are dependent upon the business to which they render service.” Bartels v. Birmingham, 332 U.S. 126, 130 , 67 S.Ct. 1547, 1549 , 91 L.Ed. 1947 (1947); see Frasier v. General Electric Co., 930 F.2d 1004, 1008 (2d Cir.1991); Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir.1988) (listing other …
discussed Cited as authority (rule) Rubin v. Tourneau, Inc.
S.D.N.Y. · 1992 · confidence medium
Thus, a corporate officer with operational control is considered an employer, see, e.g., Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.1983), as is a cooperative whose members work at home.
discussed Cited as authority (rule) Martin v. Bedell
5th Cir. · 1992 · confidence medium
Falk v. Brennan, 414 U.S. 190, 195 (1973); Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir. 1983); Hodgson v. Griffin and Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819 (1973). 29 C.F.R. § 791.2 (1991) provides: (a) A single individual may stand in the relation of an employee to two or more employers at the same time under the Fair Labor Standards Act of 1938, since there is nothing in the act which prevents an individual employed by one employer.
discussed Cited as authority (rule) Lynn Martin, Secretary of Labor v. Leslie N. Bedell and Blue Water Marine, Catering, Inc.
5th Cir. · 1992 · confidence medium
Falk v. Brennan, 414 U.S. 190, 195 , 94 S.Ct. 427, 431 , 38 L.Ed.2d 406 (1973); Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir.1983); Hodgson v. Griffin and Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819 , 94 S.Ct. 43 , 38 L.Ed.2d 51 (1973). 29 C.F.R. § 791.2 (1991) provides: (a) A single individual may stand in the relation of an employee to two or more employers at the same time under the Fair Labor Standards Act of 1938, since there is nothing in the act which prevents an individual employed by one employer.
cited Cited as authority (rule) Becker v. W. E. Boring, Inc.
Richmond County Cir. Ct. · 1992 · confidence medium
Mass. 1970); Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 195 (5th Cir. 1983).
cited Cited as authority (rule) Dole v. Simpson
S.D. Ind. · 1991 · confidence medium
Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194 (5th Cir.1983).
discussed Cited as authority (rule) DeArment v. Rax Restaurants, Inc.
S.D. Ohio · 1991 · confidence medium
Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 197 (5th Cir.1983), cert. denied, 463 U.S. 1207 , 103 S.Ct. 3537 , 77 L.Ed.2d 1387 (1983); Dole v. Solid Waste Services, Inc., 733 F.Supp. 895, 932 (E.D.Pa.1989), aff'd, 897 F.2d 521 (3d Cir.1990) (table), cert. denied, — U.S. -, 110 S.Ct. 3271 , 111 L.Ed.2d 781 (1990).
examined Cited as authority (rule) Dole v. Solid Waste Services, Inc. (3×)
E.D. Pa. · 1989 · confidence medium
The boundaries of section 3(d) are “sufficiently broad to encompass an individual who, though lacking a possesso-ry interest in the ‘employer’ corporation, effectively dominates its administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its employees.” Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194-95 (5th Cir.).
Retrieving the full opinion text from the archive…
Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee,
v.
SABINE IRRIGATION CO., INC., Et Al., Defendants, C.H. Alberding, Defendant-Appellant
82-3120.
Court of Appeals for the Fifth Circuit.
Jan 14, 1983.
695 F.2d 190
1983 U.S. App. LEXIS 31381
Kimball, McLeod & Dow, G. Allen Kim-ball, Lake Charles, La., for defendant-appellant., Beate Bloch, Atty., U.S. Dept, of Labor, Washington, D.C., for plaintiff-appellee.
Clark, Higginbotham, Politz.
Cited by 98 opinions  |  Published
POLITZ, Circuit Judge:

This action was brought by the Secretary of Labor under Section 17 of the Fair Labor Standards Act of 1938, as amended (“FLSA” or “Act”), 29 U.S.C. § 201 et seq., to enjoin Sabine Irrigation Co., Inc. (Sabine), Charles H. Alberding and Joseph E. Scally from violating the Act’s minimum wage requirement and to restrain them from continuing to withhold unpaid wages. Following a bench trial the district court entered judgment in favor of the Secretary against Alberding and Sabine, but dismissed the action against Scally. Donovan v. Sabine Irrigation Co., Inc., 531 F.Supp. 923 (W.D.La.1981). Alberding alone appeals, contending that the district court erred in (1) holding that he was an employer within the meaning of Section 3(d) of the Act, 29 U.S.C. § 203(d), and as such had willfully violated the Act’s minimum wage provisions throughout the period charged, and (2) imposing prospective and restitutionary injunctions. Finding no merit in these contentions, we affirm.

Background Facts

Sabine, a Louisiana corporation with its principal office in St. Charles, Louisiana, was engaged until early 1979 in the business of supplying water for irrigation to rice farmers in Calcasieu Parish, Louisiana. Water was pumped from the Sabine River into a central canal, and then diverted into the rice fields. This water was vital to the production of the rice crop, the bulk of which was sold in interstate commerce. Sabine’s employees operated the pumping station, inspected and repaired levees and constructed and maintained the bridges, gates, flumes and underpasses.

Alberding and a co-venturer each purchased one-half of Sabine’s stock in the early 1950s. Alberding transferred this stock in the early -1960s, but continued as corporate president, a position he has held for over 30 years. During the pertinent period, Scally served as Sabine’s vice-president, and Alberding’s wife, B.W. Alberding,[*193] was secretary-treasurer. Sabine Water Canal, Inc. (Sabine Canal) and WashingtonYouree Corporation (Washington), Louisiana corporations managed by Alberding in the capacity of president, with Scally as vice-president and B.W. Alberding as secretary-treasurer, each acquired 50% of Sabine’s stock sometime prior to 1976. Tucker Moore, Alberding’s son-in-law, owns 100% of the stock in both Sabine Canal and Washington, and is employed as a hotel manager by Gulf Beach Club, Inc. Alberding owns the controlling interest in Gulf Beach and serves as its president.

The period covered in the Secretary’s complaint extends from October 1976 to November 1978. Throughout this period, Sabine utilized a Tulsa, Oklahoma business address and shared a Tulsa office with Sabine Canal, Washington, and multiple other corporations owned and operated by Alberding, including the Tulsa Apartments Corporation, Hotel Services Company and Universal Wholesale Supply Company. Primary responsibility for Sabine’s daily operations was delegated to Joe Bond, on-site manager. Bond supervised the work crews until stricken with cancer in 1976, whereupon Gerald Clark assumed this duty. Mrs. Bond, who assisted her husband once he became ill and briefly held the post of general manager upon his death in April 1978, tabulated employee work hours and forwarded payroll work sheets to Miriam Covington, a 30-year employee of Hotel Services Company who managed the Tulsa office, and Shirley Goddard, an employee of Tulsa Apartments Corporation. Covington and Goddard regularly performed services for Sabine but were not on its payroll.

Due to the transient character of the workforce, the Bonds were allowed to compensate for the continuous turnover by filling vacant positions as they arose. However, the Bonds were not authorized to hire additional laborers, deviate from the $2.00 per hour pay rate established by the Tulsa office, write checks on Sabine’s checking account with a St. Charles bank, or pay bills. The Tulsa office reimbursed the Bonds for any emergency purchases. Inquiries by Sabine’s suppliers regarding arrears in payment on trade accounts were directed to Tulsa. Any proceeds from the sale of rice received by the Bonds were transmitted to the Tulsa office or deposited in Sabine’s account. Alberding’s permission was required for special purchases, the addition of extra men to the workforce and the transfer of funds from one or more of his other corporations when needed to meet Sabine’s payroll and trade obligations.

The district court described the Tulsa office’s pervasive control of Sabine’s affairs, and Alberding’s role therein, as follows:

At all times material to this action, Sabine’s Tulsa office administered the business affairs of Sabine Irrigation Company and defendant Alberding maintained contact with the Tulsa office several times a week. Miriam Covington ... and Shirley Goddard .. . were responsible for, and did pay, all bills incurred by Sabine Irrigation Company. If there were insufficient funds in the Sabine account, defendant Alberding would authorize Mrs. Covington to transfer funds from the Hotel Services account. On occasion, defendant Alberding would send a personal check or a check drawn on the account of some other corporation to cover the deficiency. All payroll checks for Sabine’s employees were cut and mailed from the Tulsa office and all records regarding payment of Sabine’s bills and payroll were kept in the Tulsa office. The Tulsa office deducted federal income tax and social security from the payroll and all records pertaining to these withholdings were kept in the Tulsa office. The Tulsa office deducted federal income tax and social security from the payroll and all records pertaining to these withholdings were kept in the Tulsa office. The Tulsa office handled all insurance arrangements for Sabine Irrigation and ensured that all ad valorem taxes were paid on Sabine real estate. Finally, the Tulsa office handled all Sabine’s income tax returns.

531 F.Supp. at 926-27 (citations omitted).

Evidence of numerous ledger transactions reflecting the transfer of funds between[*194] Sabine, Alberding, Scally, or one of the many corporations owned and/or controlled by Alberding was offered at trial. According to the record, Sabine advanced sums toward the rent of Alberding’s Chicago office, made a substantial loan and paid unidentified “fees” to one or more of Alberding’s corporations, and shifted the benefit of a $12,000 crop damage loss to Alberding. Regardless of whether these and other adjustment entries in Sabine’s books involved mere “paper” transfers or actual exchanges of funds, they tend to show Alberding’s dominion over Sabine’s financial affairs.

A decline in the world rice market during the post-Vietnam War era caused a devastating reversal of Sabine’s fortunes. Only infusions of capital by Alberding, commencing in 1976, saved the corporation from financial collapse. Sabine ceased doing business in early 1979, when Alberding discontinued monetary support, but remains a viable corporate entity.

Based on these facts, the district court concluded that Alberding was an employer, with Sabine, of the corporation’s irrigation personnel and enjoined both' defendants from future violations of the FSLA’s minimum wage provisions and from failing to make restitution of backpay accruing from October 1976 to January 1979. Appellant Alberding concedes that Sabine is an employer covered by the Act, and that it did not comply with federal minimum wage requirements in the years complained of, [1] but argues that he is not an employer, that even if he were, his transgressions were not willful for purposes of the application of the three-year limitations and, finally, that the issuance of the injunction was improper.

Employer

An “employer” is defined under Section 3(d) of the Act as including “any person acting directly in the interest of an employer in relation to an employee.” This term has been interpreted to encompass one or more joint employers, Falk v. Brennan, 414 U.S. 190, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973); Hodgson v. Griffin and Brand of McAllen, Inc., 471 F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973); Wirtz v. Lone Star Steel Co., 405 F.2d 668 (5th Cir.1968). 29 C.F.R. § 791.2 (1982). Whether a party is an employer or joint employer for purposes of the FSLA is essentially a question of fact; accordingly, appellate review is subject to the clearly erroneous standard.

Our determination of Alberding’s status is not circumscribed by formalistic labels or common-law notions of the employment relationship, Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947); Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir.1975). Instead, our analysis must focus upon the totality of the circumstances, underscoring the economic realities of the irrigation workers’ employment. Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 (1978); Hodgson v. Griffin and Brand of McAllen, Inc. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). In so doing, we adhere to the firmly-established guidon that the FLSA must be liberally construed to effectuate Congress’ remedial intent. Donovan v. Janitorial Services, Inc., 672 F.2d 528 (5th Cir.1982); Donovan v. 1-20 Motels, Inc., 664 F.2d 957 (5th Cir. 1981).

Alberding maintains that as nominal president of Sabine he may not be held accountable for FLSA infractions simply because his monetary transfusions enable Sabine to stave off bankruptcy, there being no evidence that he owned stock in the company or exerted supervisory control over daily corporate operations. Respecting the first argument, we perceive the parameters of § 203(d) as sufficiently broad to encompass an individual who, though lacking a possessory interest in the “employer” corporation, effectively dominates its administration or otherwise acts, or has the[*195] power to act, on behalf of the corporation vis-a-vis its employees. [2] Assuming arguendo that Alberding had no authority to direct Sabine’s activities, he would remain accountable for violations of the FLSA if he independently exercised control over the work situation. See Hodgson v. Griffin and Brand of McAllen, Inc.; Shultz v. Falk, 439 F.2d 340 (4th Cir.1971), rev’d on other grounds sub nom, Falk v. Brennan, 414 U.S. 190, 94 S.Ct. 427, 38 L.Ed.2d 406 (1972).

Contrary to appellant’s suggestion, neither the Act nor jurisprudence designates stock ownership in a corporate employer as the sine qua non of employer status where other forms of control of the employment relationship have been proven. No one factor is dispositive; rather, it is incumbent upon the courts to transcend traditional concepts of the employer-employee relationship and assess the economic realities presented by the facts of each case. See Goldberg v. Whitaker House Cooperative, 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961).

Guided by this precept, we are persuaded that the district court properly resolved the question of Alberding’s status:

Since 1976, Mr. Alberding, through his employee Miriam Covington, has exercised pervasive control over the business and financial affairs of Sabine Irrigation. The evidence is clear that Mr. Alberding maintained continuous contact with his Tulsa office and indirectly controlled many matters traditionally handled by an employer in relation to an employee (such as payroll, insurance, and income tax matters). In addition, the evidence is clear that Mr. Alberding’s financial gymnastics directly affected Sabine’s employees by making it possible for Sabine to meet its payroll and keep its employees supplied with the equipment and materials necessary to perform their jobs. Thus, we hold that Mr. Alberding is an employer within the meaning of the Act and therefore personally liable along with Sabine Irrigation Co. for any wages found to be due and owing to the employees in question.

531 F.Supp. at 929.

The trial court discounted appellant’s self-serving disavowals of involvement in Sabine’s operations. Instead, the court credited the substantial evidence of Sabine’s symbiotic association with various corporations owned and/or managed by Alberding, and the latter’s dominion over the Tulsa office and resultant authority, however indirect, over the conduct of Sabine’s business, including all significant phases of its relationship with the irrigation personnel. While the Bonds may have performed many of the functions of an employer, ultimate control was vested in Alberding. Donovan v. Janitorial Services, Inc.; Shultz v. Mack Farland & Sons Roofing Co., Inc., 413 F.2d 1296 (5th Cir.1969). The corporation’s very survival depended upon Alberding’s largesse, with his decision to terminate all financial aid precipitating its near-demise. On the present record, we are convinced that the district court correctly found that Alberding was an employer within the purview of the Act.

Willfulness

An action for delinquent minimum wage payments is foreclosed unless instituted within two years after the cause of action accrues, except where the defendant’s noncompliance was willful, in which case the action may be commenced within three years after said accrual. Section 6(a) of the[*196] Portal-to-Portal Act of 1947, as amended, 29 U.S.C. § 255(a). The Secretary filed suit against Sabine, Alberding, and Scally in October 1979. Alberding contests the trial court’s finding of willfulness and consequent application of the three-year limitation period. He supports this contention by advancing the argument that he cannot be deemed a statutory employer. We are not persuaded.

As we noted in Coleman v. Jiffy-Jane Farms, Inc., 458 F.2d 1139, 1142 (5th Cir.1971), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972), the “test” for willfulness entails a determination of whether “there is substantial evidence in the record to support a finding that the employer knew or suspected that his actions might violate the FLSA. Stated most simply, ... the test should be: Did the employer know the FLSA was in the picture?” Or, as we opined in Brennan v. Heard, 491 F.2d 1, 3 (5th Cir.1974) (emphasis in the original), “an employer acts willfully and subjects himself to the three year-liability if he knows, or has reason to know, that his conduct is governed by the Fair Labor Standards Act.” See also Donovan v. Grantham, 690 F.2d 453 (5th Cir.1982); Hill v. J.C. Penney Co., Inc., 688 F.2d 370 (5th Cir.1982). Neither an employer’s good faith nor his ignorance of the governing statutes or regulations precludes a finding of willfulness. Brennan v. Heard. See Hill v. J.C. Penney Co., Inc.; Marshall v. Union Pacific Motor Freight Co., 650 F.2d 1085 (9th Cir.1981).

When measured against these standards, the evidence of appellant’s disregard of the Act’s minimum wage requirements is adequate to establish willfulness, thereby triggering the three-year liability provision. Sabine was investigated by the Wage and Hour Division of the Department of Labor in 1971, and the Act’s proscriptions were then explained. Alberding and Scally were named defendants in three FLSA actions brought by the Secretary, [3] one of which culminated in a stipulation of compliance and dismissal. Alberding’s protestation that he was unaware of the 1974 amendments revoking the prior exemption for irrigation laborers is of no avail, given his general knowledge that the FLSA was in the picture. Donovan v. Grantham; Coleman v. Jiffy-June Farms, Inc.

Injunctive Relief

Finally, appellant contends that the district court abused its discretion in restraining him from future violations of the FLSA and from withholding payment of statutory minimum wages adjudged due and owing. Section 17 of the FLSA, 29 U.S.C. § 217, [4] authorizes the district courts to issue both prospective and restitutionary injunctions. Donovan v. Brown Equipment and Service Tools, Inc., 666 F.2d 148 (5th Cir.1982). Where a corporate officer has been found to have acted “directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. § 203(d), he may be enjoined along with the corporate employer, Donovan v. Hamm’s Drive Inn, 661 F.2d 316 (5th Cir.1981), even though he no longer falls within the statutory definition at the time the action is initiated. Donovan v. American Leader Newspapers, Inc., 524 F.Supp. 1144 (M.D. Fla. 1981); Wirtz v. Soft Drinks of Shreveport, Inc., 336 F.Supp. 950 (W.D.La.1971). Generally speaking, the propriety of a grant of injunctive relief in a § 217 action is an equitable matter, committed in the first instance to the sound discretion of the district court. Shultz v. Parke, 413 F.2d 1364 (5th Cir.1969).

[*197] Once a finding of past due wages is made, however, the district court’s discretion to refuse the Secretary’s request for a restitutionary injunction is limited, and must be tempered by considering whether the prerequisites for this remedy have been met and the policy reasons underlying Congress’ enactment of the legislation have been fulfilled. Donovan v. Grant-ham; Donovan v. Brown Equipment and Service Tools, Inc. Thus the court must ascertain whether an injunction commanding restitution of delinquent back-pay furthers the FLSA’s twin purposes of compensating the injured employees, and of redressing a continuing public wrong by depriving a violator of any gains accruing to him through his violations, and protecting those employers who comply with the Act’s wage requirements from having to compete unfavorably with those who do not. Donovan v. Brown Equipment and Service Tools, Inc., 666 F.2d at 157. When examined against this background, the district court’s imposition of a restitutionary injunction was within his statutorily prescribed discretion. This remedy did not penalize Alberding, but simply compelled his remission of wages to which his former employees were clearly entitled.

In deciding whether to issue a prospective injunction, the district court must evaluate the previous conduct of the employer and the dependability of his promises for future compliance. In light of the evidence presented, including the proliferation of FLSA suits brought against Alberding and his corporations within a five-year period, and the limited efforts to conform to legislative strictures, we conclude that the district court properly enjoined appellant from further noncompliance with the Act.

AFFIRMED.

1

. Sabine’s employees were paid $2.00 per hour from October 1976 through November 1978, whereas the minimum wage was $2.20 per hour in 1976, $2.30 per hour in 1977 and $2.65 per hour in 1978.

2

. As noted above, Tucker Moore, Alberding’s son-in-law and an employee of a corporation of which Alberding is majority stockholder and president, owns all stock in Sabine by virtue of his ownership of Sabine Canal and Washington. Compare Donovan v. Janitorial Services, Inc. (where individual defendant owned no stock in subject corporation, but his spouse owned 35% of employer company and otherwise controlled its operations through his wholly-owned corporations, said defendant was deemed to be an employer of subject company’s personnel). Regardless of the locus of title to Sabine’s stock and the nature and extent of Alberding’s control or ability to control its titular holder, Moore, the economic realities extant herein dictate that we view Alberding’s substantial investment in the corporation as giving rise to a strong inference of his control of Sabine’s business and financial affairs.

3

. Brennan v. Rolling Hills Management Corp., Docket # 71-C-240 (N.D.Okla.1971); Dunlop v. Tulsa Apt. Co., Civil Action # 73-C-309 (N.D.Okla.1973); Dunlop v. McAlester Corp., Civil Action # 75-117-C (E.D.Okla.1975).

4

. Under Section 17 of the Act, 29 U.S.C. § 217:

The district courts, ... shall have jurisdiction, for cause shown, to restrain violations of section 15 [29 U.S.C. § 215], including in the case of violations of section 15(a)(2), [29 U.S.C. § 215(a)(2), rendering unlawful the failure to comply with minimum wage and overtime strictures of the Act], the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this Act ....