Labor & Employment Law Daily Wrap Up, EMPLOYEE STATUS—E.D. Pa.: Employer fails on summary judgment motion to declare worker an independent contractor, (Dec 9, 2025)

By Ronald Miller, J.D.

It is clear from the record that this action cannot be decided on a motion for summary judgment.

An employer was not entitled to summary judgment against an employee’s claim that it failed to pay overtime under the FLSA and state law, based on its contention that the plaintiff was an independent contractor, ruled a federal district court in Pennsylvania. According to the court, a jury will have to make a determination as to the plaintiff’s status based on economic realities factors (Muharemi v. NTP Marble, Inc. dba Colonial Marble & Granite, No. 25-1117 (E.D. Pa. Dec. 4, 2025)).

The FLSA, the Pennsylvania Minimum Wage Act (PMWA), and the Pennsylvania Wage Payment and Collection Law (WPCL) provide certain wage protections to employees but not to independent contractors. In this case, the employer maintains that the undisputed evidence demonstrates that the plaintiff was an independent contractor. Accordingly, the employer filed a motion for summary judgment.

Economic realities factors. It is a mixed question of fact and law whether a person is an employee or an independent contractor under the FLSA and PMWA. The Third Circuit and Pennsylvania courts utilize the same six factors to resolve this issue: (1) the degree of the alleged employer’s right to control the manner in which the work is to be performed; (2) the alleged employee’s opportunity for profit or loss depending upon her managerial skill; (3) the alleged employee’s investment in equipment or materials required for her task, or her employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the alleged employer’s business.

The Third Circuit has explained that a court should consider the factors together in the circumstances of the whole activity to determine whether the worker is dependent upon the business to which she renders service or is, as a matter of economic reality, operating an independent business for herself.

Wage Collection Law. Separately, the Third Circuit and Pennsylvania courts evaluate ten other factors to determine whether a worker is an employee under the WPCL: (1) the control of the manner that work is to be done; (2) responsibility for result only; (3) terms of agreement between the parties; (4) the nature of the work or occupation; (5) the skill required for performance; (6) whether one employed is engaged in a distinct occupation or business; (7) which party supplies the tools; (8) whether payment is by the time or by the job; (9) whether the work is part of the regular business of the employer; and (10) the right to terminate the employment at any time.

While none of these factors for a WPCL claim is dispositive, the right to control the manner in which the work is accomplished is “paramount.”

Here, some of the evidence seemed to the court to favor the plaintiff and some the employer. Because there were genuine disputes of material fact, the court could not hold as a matter of law under Rule 56 that the plaintiff was an independent contractor. Rather, it was for the jury to weigh the relevant facts in light of the economic realities.

Accordingly, the employer’s motion for summary judgment was denied.

The case is No. 25-1117.

Judge: Bartle, H.

Attorneys: Michael Patrick Murphy, Jr. (Murphy Law Group) for Ervin Muharemi. Brian W. Waerig (Susanin, Widman & Brennan) for NTP Marble, Inc. dba Colonial Marble & Granite.

Companies: NTP Marble, Inc., dba Colonial Marble & Granite

Cases: EmployeeStatus WageHour Overtime CoverageLiability PennsylvaniaNews