The FLSA defines an “employee” as “any individual employed by an employer”; it defines “employ” as “to suffer or permit to work.” 29 U.S.C. §§ 203(e)(1), 203(g). “The definition is necessarily a broad one in accordance with the remedial purpose of the Act.” Brock v. Superior 912*912 Care, 840 F.2d 1054, 1058 (2d Cir.1988); see also United States v. Rosenwasser, 323 U.S. 360, 363, 65 S.Ct. 295, 89 L.Ed. 301 (1945); Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir.1979).
The Second Circuit has adopted an “economic realities” test to determine whether an individual is an employee or an independent contractor for FLSA purposes. The factors considered include:
(1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer’s business.
Brock, 840 F.2d at 1058-59; see also Gayle v. Harry’s Nurses Registry Inc., 2009 WL 605790, at *5 (E.D.N.Y.2009). No factor is dispositive: “[R]ather, the test is based on a totality of the circumstances” analysis, with the ultimate question being whether the “workers depend upon someone else’s business for the opportunity to render service or are in business for themselves.” Brock, 840 F.2d at 1059; see also Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (“[T]he determination of the relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity.”). Further, “such status does not require the continuous monitoring of employees, looking over their shoulders at all times, or any sort of absolute control of one’s employees”; that is, even if an employer’s control were “restricted, or exercised only occasionally,” that does not remove the employee from the protections of the FLSA. Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.1999); see also Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 531 (5th Cir.1982). That an employer does not exercise control continuously or consistently “does not diminish the significance of its existence.” Irizarry v. Catsimatidis, 722 F.3d 99, 111 (2d Cir. 2013) (citation omitted).
it is sometimes appropriate to shift the burden of proof to defendant where the plaintiff establishes a prima facie case that a conveyance was made without fair consideration and the evidence reveals the conveyor had substantial liabilities at the time of the conveyance. Neumeyer v. Crown Funding Corp., 56 Cal.App.3d 178, 128 Cal.Rptr. 366 (1976)
New York is said to be an “unsettled” jurisdiction or one that adopts a “flexible” rule. See D. Dobbs, Handbook on the Law of Remedies, at 597 n. 16 (1973); Annot., 13 A.L.R.3d 875, 931-33 (1967); Note, 55 Harv. L.Rev. 1019 (1942). The leading case in New York, however, unambiguously states the out of pocket rule: The purpose of an action for deceit is to indemnify the party injured. All elements of profit are excluded. The true measure of damages is indemnity for the actual pecuniary loss sustained as a direct result of the wrong. Ainger v. Michigan General Corp., 476 F. Supp. 1209 – Dist. Court, SD New York 1979.
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