The Louisiana Fifth Circuit Court of Appeal has held that painters may be treated as independent contractors if they bring some of their own tools, control their own schedules, and make decisions on how to complete the work for which they have been hired.  

Background

In Ocampo v. Maronge, No. 17-CA-403 (December 27, 2017), plaintiffs Javier Ocampo and Dennis Ordonez asserted claims for unpaid wages following discharge pursuant to the Louisiana Wage Payment Act (LWPA). A claim under the LWPA requires that the claimant be an “employee.”

Ocampo and Ordonez were hired by Nicole Maronge to perform painting on a residential property in Napoleonville, Louisiana. Maronge claimed that Ocampo and Ordonez were hired to work from Tuesday February 25, 2014, through Friday February 28, 2014. Ocampo and Ordonez testified that they were not informed of an initial deadline to complete the job. 

Maronge supplied Ocampo and Ordonez with a ladder, as well as other materials to complete the job, including “sheetrock, paint, primer, caulk, tape, spackling and other similar items.” Ocampo and Ordonez supplied some of their own tools, including brushes, rollers, buckets, and drop cloths. 

After arriving at the Napoleonville property, Ocampo and Ordonez learned the job would entail more work than painting, including floor and garage demolition. By the end of February 28, 2014, they informed Maronge that they were not finished with the job, but that they could complete the job by March 2, 2014, with the assistance of an additional laborer. Maronge agreed. Ocampo and Ordonez thereafter worked through March 2, 2014, and completed the job except for the trim painting. They did not return to the jobsite on March 3, 2014, and Maronge hired other laborers to finish the job. 

Ocampo and Ordonez claimed in their lawsuit that Maronge never paid them for the hours they worked for her. Specifically, they claimed they were each owed $17 an hour for 62 hours worked on the Napoleonville property, as well as penalties and attorneys’ fees resulting from Maronge’s failure to timely pay their wages.

Maronge did not dispute that Ocampo and Ordonez were owed money for the work they performed. Instead, Maronge disputed the hourly rate and number of hours they worked. Maronge claimed that they were each owed $15 per hour for only 45 hours worked. Maronge also disputed that plaintiffs were her “employees” under Louisiana law.

After discovery, Ocampo and Ordonez filed a motion for partial summary judgment urging the court to find that they were Maronge’s “employees” as a matter of law. The district court denied their motion. Thereafter, the matter proceeded to trial, where the district court found Ocampo and Ordonez to be independent contractors. They subsequently appealed the court’s denial of their motion for partial summary judgment, as well as the court’s judgment finding them to be independent contractors, amongst other issues.  

The Louisiana Fifth Circuit’s Analysis

On appeal, the Louisiana Fifth Circuit Court of Appeal affirmed both rulings, emphasizing the independent nature of the plaintiffs’ jobs. The court explained that the essence of the employer-employee relationship is the “employer’s right to control the employee.” As a result, the court declared that to prevail on their motion for partial summary judgment, Ocampo and Ordonez were required to prove that the degree of control Maronge exerted over them rose to the necessary level to create the employer-employee relationship.

The court applied the five factor employee-employer test first enumerated by the Louisiana Supreme Court in the seminal Hickman v. South Pacific Transport Company case from 1972. The court asked: (1) whether there was a valid contract between the parties, (2) whether the plaintiffs used nonexclusive means in accomplishing the work, (3) whether the defendant controlled how the work would be performed, (4) whether there was a specific price for the project, and (5) whether the work was for a certain time or subject to termination by either party at their will.

In affirming the denial of the plaintiffs’ motion for partial summary judgment and the district court’s conclusion that the plaintiffs were independent contractors, the court enumerated the following facts to support its conclusion: the plaintiffs set their own schedules, Maronge did not direct the plaintiffs in how to perform their work, the plaintiffs supplied some of their own tools and techniques, and Maronge was not present on the jobsite. At the same time, the court deemphasized or ignored the ways in which Maronge directed the work to be performed, the tools Maronge provided for the job, the complexity of the actual work performed, and the March 2 deadline for completion of the work that the plaintiffs acknowledged but ignored.

As a result, the Louisiana Fifth Circuit declared that the district court was not “manifestly erroneous or clearly wrong” in classifying the plaintiffs as independent contractors.

Key Takeaways

Ocampo indicates that the sophistication of work performed may not control the existence of an employer-employee relationship. In this instance, the plaintiffs were only painting and demolishing property and the majority of their “tools” were provided by the defendant. Nonetheless, the court found the plaintiffs to be independent contractors. As a result, the LWPA did not apply and thus penalties and attorneys’ fees for late payment of earned wages were not recoverable. 

 


Browse More Insights

Practice Group

Global Reorganizations

Organizations may need to restructure their workforces for a number of reasons. These include mergers and acquisitions, post-merger integrations (PMI), cost-cutting initiatives, and reorganizations of group structure to improve, among other things, business performance, operations, and efficiencies.

Learn more
UK, London, digital composite of city skyscrapers in London financial district with lush green trees
Practice Group

Environmental, Social, and Governance (ESG)

Environmental, Social, and Governance (ESG) initiatives involve unique and sometimes difficult challenges for employers that seek to develop and comply with these initiatives while minimizing the potential for audits, shareholder demands, litigation, and other adverse, reputational outcomes based on these ESG initiatives.

Learn more
Practice Group

Multistate Advice and Counseling

Multistate compliance is a rising challenge for many employers as they expand their business footprints and remote workforces across state lines. Multistate employers are required to comply with various state and local laws that are constantly evolving while also maintaining their workplace culture and meeting their business goals.

Learn more
Practice Group

California Class Action and PAGA

California routinely leads the nation in wage-and-hour class action filings for a number of reasons. California’s wage and hour laws provide a broader range of rights for employees than federal law or the laws of other states. In addition, California’s Labor Code generally allows a successful employee to recover attorneys’ fees, whereas a successful employer is not able to recover fees from the employee.

Learn more
CEO giving peptalk to businesspeople at meeting
Practice Group

Workplace Investigations and Organizational Assessments

Our attorneys draw on investigation and litigation experience to navigate complex complaints. Knowing how issues will be evaluated by a trier of facts—a judge or jury—can be critical. Moreover, we assist employers in evaluating whether the attorney-client privilege applies to investigation communications.

Learn more
Silhouette of a judge's gavel. Cryptocurrencies and legality
Practice Group

Trial

We understand that only a fraction of lawsuits will ever make it to trial. That means that most companies—and their lawyers—have very little actual jury trial experience. So when your case is called to trial, you need a trial team with experience.

Learn more
Fingerprint Biometric Authentication Button. Digital Security Concept
Practice Group

Technology

Ogletree Deakins is uniquely situated to provide tech employers and users (the “TECHPLACE™”) with labor and employment advice, compliance counseling, and litigation services that embrace innovation and mitigate legal risk. Through our Technology Practice Group, we support clients in the exploration, invention, and/or implementation of new and evolving technologies to navigate the unique and emerging labor and employment issues present in the workplace.

Learn more
Industry Group

Financial Services

Our team of attorneys has decades of experience advising and representing a broad spectrum of financial services industry clients and we understand the unique issues that they face. Our clients include banks, SEC-regulated public companies, broker-dealers, employers of investment advisors, FINRA-registered firms and representatives, mortgage companies, hedge funds, and private equity firms.

Learn more
White Semi-Trailer Truck Heading down a four-lane Highway at Dusk delivering a load in the southeastern Utah desert on interstate 70 east bound
Industry Group

Trucking and Logistics

The Ogletree Deakins Trucking and Logistics Industry Group is comprised of an international team of experienced attorneys who advise, counsel, and represent carriers and companies with trucking divisions in all aspects of labor and employment matters affecting drivers and other workers in the trucking and logistics industry.

Learn more
Digital generated image of multi racial group of people forming circle on world map on blue background. Solidarity and support concept.
Practice Group

Diversity and Inclusion

Our attorneys are ready to assist with the full spectrum of workplace D&I-related issues. The members of Ogletree Deakins’ Diversity and Inclusion Practice Group have extensive and unique experience assisting employers in the creation, implementation, and management of D&I programs, including conducting thorough analyses of diversity data and identifying meaningful metrics and benchmarks.

Learn more
Robotic arm and steel conveyor in assembly manufacturing factory.
Industry Group

Manufacturing

Ogletree Deakins knows manufacturing. In its most recent rankings, The BTI Consulting Group recognized Ogletree Deakins as a “Powerhouse” for our outstanding relationships with manufacturing industry clients. This recognition reflected feedback from in-house counsel, who were asked which law firms were both their core, go-to firms and which firms they would recommend most to peers. […]

Learn more
Practice Group

Mergers and Acquisitions

Ogletree Deakins understands that corporate acquisitions and restructurings can be complex and challenging. Clients need a business partner that can help them structure the labor and employment aspects of a transaction in a way that will provide transparent information on the costs of compliance with applicable laws and regulations at every stage of the deal.

Learn more
Practice Group

Background Checks

Background checks are a trending topic for employers because of the tidal wave of class action lawsuits alleging technical violations of the federal Fair Credit Reporting Act as well as the proliferation of state and local background check laws (including those arising from the Ban the Box movement).

Learn more
Form for a leave of absence on a desktop.
Practice Group

Leaves of Absence/Reasonable Accommodation

Managing leaves and reasonably accommodating employees can be complex, frustrating, and expose employers to legal peril. Employers must navigate a bewildering array of state and federal statutes, with seemingly contradictory mandates.

Learn more
Busy Office : Computer laptop with financial graph data on table in the office
Practice Group

Pay Equity

Recent high-profile lawsuits and increased activity from state legislatures have thrust pay equity issues to the forefront for today’s employers. As the momentum of legislation, regulation, and corporate initiatives focused on identifying and correcting pay disparities continues to grow, our attorneys are ready to assist with the full spectrum of pay equity-related issues.

Learn more
Large open space office
Practice Group

RIF/WARN

Whether it’s a change in a client’s existing business structure, the acquisition of another entity, or a downturn in an economic sector, the attorneys in the Ogletree Deakins’ RIF/WARN Practice Group have extensive experience working with businesses in almost every industry.

Learn more
Practice Group

Employee Benefits and Executive Compensation

Ogletree Deakins has one of the largest teams of employee benefits and executive compensation practitioners in the United States. As part of a firm that focuses on labor and employment law, our Employee Benefits Practice Group has a special ability to relate technical experience to the client’s “big picture” issues.

Learn more
Practice Group

OFCCP Compliance, Government Contracting, and Reporting

The experienced attorneys in our OFCCP Compliance, Government Contracting, and Reporting Practice Group advise and defend federal contractors and subcontractors on jurisdictional, compliance, and enforcement issues relevant to government contracting, including those involving the Office of Federal Contract Compliance Programs (OFCCP).

Learn more
conference room
Practice Group

Arbitration and Alternative Dispute Resolution

Employment arbitration and other alternative dispute resolution (ADR) techniques can help employers and employees achieve quicker and more efficient resolutions to employment disputes. Using ADR, especially arbitration, can reduce the burden and expense of litigation while maintaining fairness to all parties.

Learn more
Modern dark data center, all objects in the scene are 3D
Practice Group

Cybersecurity and Privacy

The attorneys in the Cybersecurity and Privacy Practice Group at Ogletree Deakins understand that data now accumulates quickly and transmits easily. As the law adapts to technical advancements, we effectively advise our clients as they work to comply with new developments and best practices for protecting the privacy of the data that their businesses collect and retain.

Learn more
Steps to the United States Supreme Court, Washington DC, America
Practice Group

Appellate

At Ogletree Deakins, our appellate attorneys know that appeals court rulings can affect our clients’ industries as a whole. Ogletree Deakins’ appellate work has made a global impact in several industries. Our appellate victory regarding the interpretation of the federal Mine Safety and Health Act (MSHA) was a boon to the entire mining industry.

Learn more
Practice Group

Class Action

Our class action lawyers are veterans. We have decades of experience handling numerous types of federal and state law class and collective actions, such as those arising under Title VII, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act, and the Fair Labor Standards Act.

Learn more
A deaf man with his back turned
Practice Group

Disability Access

The lawyers in Ogletree Deakins’ Disability Access Practice Group have extensive experience helping their clients face the multiple challenges presented by Title III of the Americans with Disabilities Act (ADA) and other disability access laws. From defending class actions, to ensuring compliance with federal and state building standards-thereby eliminating the conditions that lead to litigation-to navigating the complicated regulations covering service animals, hotel reservations, ticketing, and Segways, our work is comprehensive.

Learn more
Practice Group

Drug Testing

Ogletree Deakins understands that employers face complex and nuanced issues when implementing and enforcing drug and alcohol testing and substance abuse policies. Drawing on decades of experience advising and defending drug testing laboratories, and public and private employers across the country and internationally, our attorneys provide highly responsive legal service

Learn more
Practice Group

Employment Law

Ogletree Deakins’ employment lawyers are experienced in all aspects of employment law, from day-to-day advice to complex employment litigation.

Learn more
Practice Group

ERISA Litigation

Ogletree Deakins has one of the largest teams of employee benefits, executive compensation, and Employee Retirement Income Security Act (ERISA) litigation practitioners in the United States. As part of a firm that focuses on labor and employment law, Ogletree Deakins’ ERISA Litigation Practice Group applies technical litigation experience and employee benefits knowledge to clients’ needs.

Learn more
Practice Group

Ethics Compliance and Whistleblower Response

Ogletree Deakins provides clients with innovative and business-oriented solutions to compliance issues across every facet of labor and employment law. Our lawyers work with clients to design effective compliance measures, assist in audits and investigations, and defend clients in relation to compliance as well as retaliation claims.

Learn more
New York City, NY, USA - October 11, 2017: American flag flapping in front of corporate office building in Lower Manhattan
Practice Group

Governmental Affairs

Ogletree Governmental Affairs, Inc. (OGA), a subsidiary of Ogletree Deakins, is a full service legislative and regulatory affairs consulting firm, dedicated to helping clients solve their problems with the public sector. OGA unites the skills and experience of government relations professionals with the talent of the Firm’s lawyers to provide solutions to regulatory issues outside the courtroom.

Learn more
Close up of american visa label in passport. SHallow depth of field.
Practice Group

Immigration

Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

Learn more
Glass globe representing international business and trade
Practice Group

Cross-Border

Often, a company’s employment issues are not isolated to one state, country, or region of the world. Our Cross-Border Practice Group helps clients with matters worldwide—whether involving a single non-U.S. jurisdiction or dozens.

Learn more
Writing instrument and stack of papers paperwork on office desk table. With copy space. Shot with ISO64.
Practice Group

Litigation

Ogletree Deakins’ litigation practice continues to expand with each new employment right or legal obligation created by legislatures or the courts. Our litigators have significant experience handling complex employment cases, including class and collective actions.

Learn more
Street protest against war in Ukraine in town square.
Practice Group

Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

Learn more
Silhouette shadows of business people talking in office
Practice Group

Unfair Competition and Trade Secrets

We know your business. We know what makes it valuable. We make it our business to protect your assets and goodwill. Every day, our Unfair Competition and Trade Secrets Practice Group—comprised of more than 100 lawyers—leverages our deep bench, experience, and efficiency-built technology and litigation support to partner with companies of all sizes, from small businesses to Fortune 100 companies.

Learn more
Weekly Time Sheet
Practice Group

Wage and Hour

Ogletree Deakins’ Wage and Hour Practice Group features attorneys who are experienced in advising and representing employers in a wide range of wage and hour issues, and who are located in Ogletree Deakins’ offices across the country.

Learn more
Businessmen walking and talking in empty warehouse
Practice Group

Workplace Safety and Health

The Occupational Safety and Health (OSH) practice of Ogletree Deakins is characterized by the knowledge and credibility of our attorneys, and the exceptional level of service that we provide to our clients.

Learn more
Industry Group

Airline and Railway

Few industries feel the burden of today’s laws and regulations more keenly than our nation’s airlines and railroads. Ogletree Deakins’ Airline and Railway Industry Group attorneys understand the unique challenges of these complex businesses.

Learn more
Midsection of senior woman and female healthcare worker with hands stacked at retirement home
Industry Group

Healthcare

The attorneys in Ogletree Deakins’ Healthcare Industry Group understand the unique legal challenges facing healthcare industry clients that must balance vital and demanding work with numerous compliance regimes and heavy regulation.

Learn more
A modern university lecture hall full of students listening to the lecturer.
Practice Group

Higher Education

Ogletree Deakins is an industry leader in higher education legal practice. Our attorneys have decades of experience advising and defending public and private, religious and secular colleges, universities, and vocational schools.

Learn more
Beautiful modern hotel room and suitcase
Industry Group

Hospitality

Ogletree Deakins’ Hospitality practice is as diverse as the clients we serve. From bed-and-breakfast inns to destination resorts, and from fast casual restaurants to fine dining concepts, we understand our clients’ needs and challenges and share their commitment to providing exceptional quality, service, and value.

Learn more
Scientist pipetting a sample into a petri dish during a experiment in the laboratory
Industry Group

Life Sciences

Our attorneys have decades of experience representing publicly and privately held companies in the broad range of life sciences businesses, including those devoted to biotechnology, medical devices research and manufacturing, medical information data collection and storage, medical software and informatics, laboratory and medical testing, medical research, and others focused on research, development, technology, and manufacturing.

Learn more
Inside a large shopping mall in Almaty
Industry Group

Retail

Ogletree Deakins is a retail industry leader with clients ranging from brick-and-mortar retailers to online merchants, and small businesses to Fortune 500 corporations. We represent companies in a range of retail sectors, including but not limited to: discount stores, department stores, luxury retailers, home goods and specialty stores, home improvement centers, grocers, pharmacies, online retailers…

Learn more
Team of happy female soccer players celebrating their achievement on a playing field at sunset.
Industry Group

Sports and Entertainment

Ogletree Deakins lawyers understand the complexities and nuances of sports and entertainment businesses. We regularly provide advice and education to clients on sports and entertainment-related legal topics. We also understand the pace of the industry and the vital importance of keeping our clients on stage or on the field.

Learn more

Sign up to receive emails about new developments and upcoming programs.

Sign Up Now