Full opinion text
OPINION AND ORDER ACOSTA, United States Magistrate Judge: Introduction The Secretary of the United States Department of Labor (“Secretary”) brings this action against defendants Westside Drywall, Inc. (“Westside”), Mohsen Salem (“Mr. Salem”), and Shirine Salem (“Ms. Salem”) (collectively, “Defendants”) on behalf of 52 laborers, seeking to enjoin Defendants’ willful and non-willful violations of the overtime and record keeping provisions of sections 6, 7, 11, 15, 16(c), and 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 201 et seq.) (“FLSA” or “the Act”). The Secretary seeks back wages and overtime pay, liquidated damages, and injunctive relief. Presently before the court are the Secretary’s motion to amend Exhibit A of the Complaint, and Defendants’ motions to strike, for summary judgment, and for sanctions. The court held oral argument on April 5, 2010. Defendants’ motion to strike is granted, Defendants’ motion for summary judgment is granted in part and denied in part, Defendants’ motion for sanctions is denied, and the Secretary’s first and second motions to amend are denied. General Background In April 2007 the Secretary began an investigation of Defendants’ pay practices. The Secretary filed its FLSA complaint against Defendants eighteen months later, on October 1, 2008. Attached to the Secretary’s complaint as Exhibit A is a two-page list containing the names of fifty-two persons (“claimants”) the Secretary claims Defendants employed but failed to properly pay and for whom Defendants did not maintain proper records, all in violation of the FLSA. The Secretary filed a First Amended Complaint later that same day, October 1, 2008, to correct the spelling of Mr. Salem’s first name. (Am. Compl. pp. 1, lines 19-21). The gravamen of the Secretary’s charge is that Defendants seek to avoid their obligations under federal law by using certain “subcontractors” as an artificial barrier between Westside and its laborers. Specifically, the Secretary alleges that Defendants have an arrangement with certain “subcontractors” to provide laborers whom Defendants instruct and control but for whose work Defendants pay the “subcontractor.” The subcontractor in turn takes part of each payment as an illegal kickback for the arrangement before distributing the remainder in cash payments to the laborers, often at rates below the FLSA minimum wage. The Secretary alleges that this virtually invisible and untraceable violation of the FLSA is maintained through the threat of immediate termination, not just for the complaining laborer, but the laborer’s friends and family as well — a serious risk for a labor force consisting largely of extended family relations. Defendants respond that they are in full compliance with the FLSA. Defendants admit that, consistent with industry practice, Westside subcontracts certain labor components of its business. However, Defendants emphatically deny maintaining any relationship resembling that which the Secretary alleges. Defendants further argue that if in fact any claimants have been the victims of unlawful pay practices, that offense must be charged to the offending subcontractor, not Defendants. Motion to Strike I. Facts Defendants’ motion to strike raises a preliminary procedural matter regarding the admissibility of certain evidence offered by the Secretary. Specifically, Defendants object to portions of paragraphs 4 and 12 of the Amended Declaration of Karen Clark In Support of the Secretary’s Response to the Defendants’ Motion for Summary Judgment (“Am. Clark Deck”), and the attached Exhibit A, pages 1 through 14, and Exhibit B in its entirety, on grounds that these statements and exhibits are inadmissible hearsay under Federal Rule of Evidence (“FRE”) 802. The last two sentences of paragraph 4 state: “[Sabas Fernandez Hernandez] related that when he worked on Saturdays, the builder would provide the combination to Westside’s supervisors who, in turn, gave it to Westside’s employees. Lastly, he told me that when he was rehired by Westside in March 2008, Mr. Salem paid him approximately $2,300.00 in cash.” (Am. Clark Deck ¶ 4). The first sentence in paragraph 12 states “Mario Alberto Luna told me that he worked for Westside in 2004, 2005, and 2006.” (Am. Clark Deck ¶ 12). Pages 1 through 4 of Exhibit A are two copies of a two-page form document titled “Employee Personal Interview Statement.” Both list “Sabas Fernandez-Hernandez” as the employee, “Westside Drywall” in Hubbard as the employer, “patch/drywall labor” as the occupation, and September 16, 2005 to June 27, 2006 as the period employed. The first document (pages 1 and 2 of Exhibit A) is typed in Spanish, dated September 17, 2007, bears the signature “Sabas Fernandez,” the statement “Taken by WHI Clark” (“Clark”) below the signature, and is stamped “received” by the Portland' District Office Wage & Hour Division September 21, 2007. As the document is not completed in English, this court makes no attempt to decipher its contents. The second document (pages 3 and 4 of Exhibit A) appears to be a translation of the first document: it is typed in English with a notation at the end “[translation to English by WHI Clark.” This document does not bear any signatures and is not stamped “received.” Pages 5 through 14 of Exhibit A are copies of what appears to be time sheets filled in by hand, which alternately lack identifying information entirely or show only the incomplete name “Alan” at the top. Exhibit B is a copy of the two-page “Employee Personal Interview Statement” form document completed by hand, dated March 17, 2008, and bears the signature “Mario A. Luna” with the statement “Taken by WHI Clark” below the signature. It shows “Mario Luna” as the employee, “Westside Dry wall” in Hubbard as the employer, “scrap pick up” as the occupation, and shows the period employed as “5-6 yrs to 1 yr ago.” It is not stamped “received” by the Portland District Office Wage & Hour Division. Neither Exhibit A nor Exhibit B are accompanied by affidavit or the sworn declaration of Hernandez or Luna stating that they are, respectively, the authors of these documents. II. Legal Standard Evidentiary affidavits filed in connection with motions for summary judgment must be made “on personal knowledge,” with “[sjworn or certified copies” of any supporting documents attached. Federal Rule of Civil Procedure (“FRCP”) 56(e). Where a party attempts to introduce an exhibit by attaching it to a declaration or affidavit, FRCP 56(e) requires that the declarant or affiant have personal knowledge of the exhibit. Orr v. Bank of America, NT & SA, 285 F.3d 764, 777 (9th Cir.2002). The evidence presented by both parties must be admissible. FRCP 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). Hearsay statements in affidavits are inadmissible. Japan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866, 875 n. 1 (9th Cir.2002). Hearsay is any out-of-court statement, whether oral or written, offered in evidence to prove the truth of the matter asserted. FRE 801(a), (c). In the absence of a procedural rule or statute, hearsay is inadmissible unless it is defined as non-hearsay under FRE 801(d) or falls within a hearsay exception under FRE 803, 804, or 807. See FRE 802; 30B Michael H. Graham, Federal Practice & Procedure: Evidence § 7031 at 279. When a statement is hearsay within hearsay, or double hearsay, each statement must qualify under some exemption or exception to the hearsay rule. FRE 805; United States v. Arteaga, 117 F.3d 388, 396 n. 12 (9th Cir.1997). III. Analysis A. The Evidence Is Hearsay The last two sentences of Paragraph 4 and the first sentence of Paragraph 12 of Clark’s amended declaration relate statements made to her by third persons, thus they are hearsay and subject to exclusion unless an exception to the hearsay rule applies. Likewise, Exhibit A, pages five through fourteen, consists of written statements made out of court, therefore this portion of Exhibit A is also hearsay and subject to exclusion unless an exception to the hearsay rule applies. Exhibit A, pages one through four, and Exhibit B present a double layer of hearsay: the documents themselves are hearsay and the statements within them are also hearsay, or “hearsay within hearsay.” Therefore all of the evidence objected to is subject to exclusion unless an exception to the hearsay rule applies to each hearsay statement. B. There Are No Applicable Exceptions to the Hearsay Rule 1. Exhibit A, pages 5 through 14 Because the Secretary attempts to introduce Exhibit A through Karen Clark’s affidavit, she must have personal knowledge of the document or otherwise be able to authenticate it under FRE 901 or 902. Clark describes no personal knowledge of pages five through fourteen of Exhibit A, nor does she describe any other manner in which she is otherwise competent to testify about their contents. The origin, contents, and significance of these documents are not discussed in her affidavit, and the documents are facially devoid of any identifying information supporting any conclusion about their author. The court perceives no applicable alternative method of authentication under FRE 901 or 902. These documents are improperly authenticated and therefore inadmissible. Even if these documents were properly authenticated, they are hearsay and thus subject to exclusion unless an exception to the hearsay rule applies. The court finds no applicable exception to the hearsay rule for these documents, therefore they are also inadmissible hearsay. For these reasons, pages five through fourteen of Exhibit A are excluded from evidence. 2. Paragraph 4 and Exhibit A The last two sentences of Paragraph 4 relate statements made to Clark by Hernandez. Paragraph 4 cites Exhibit A for support. As described above, Exhibit A, pages one through four, appears to be the written transcription of an interview Clark took from Hernandez in Spanish and her translation of that interview to English, and thus present a double layer of hearsay. Clark may be able to authenticate the documents by testifying that she wrote them, signed them, and witnessed Hernandez sign his statement, thus the documents themselves could be introduced into evidence through her testimony. Orr, 285 F.3d at 774 n. 8 (noting that a document may be authenticated in this manner under [FRE] 901(b)(1)) (internal citation omitted). However, Clark still lacks personal knowledge of the facts related by Hernandez and thus is not competent to testify about these statements. Barring an affidavit or adoption of these statements from Hernandez, the last two sentences of Paragraph 4 and Exhibit A, pages one through four, are subject to exclusion unless an exception to the hearsay rule applies. The Secretary argues that these statements are admissions by a party opponent, and thus admissible under FRE 801(d)(2)(D) as an exception to the hearsay rule. As proponent of this evidence, the Secretary must demonstrate that this evidence is “a statement by [Defendants’] agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” FRE 801(d)(2)(D); Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir.1986). The Secretary argues that Hernandez’s job at Westside made him West-side’s agent for purposes of this information. In order to fall within this exception, the hearsay statement must have been made while Hernandez was Westside’s employee. The statement at issue was made September 17, 2007. The record shows that in 2007, Hernandez first worked for Canby Drywall and next for Bruce Packing, apparently as a temporary worker placed through the agency Express Personnel Services. By his own testimony, Hernandez did not work for another employer between leaving Canby Drywall and starting the job for Bruce Packing, and he did not work for Westside prior to March of 2008. There is no evidence in the record that Hernandez was employed by or otherwise had an agency relationship with Defendants in 2007 when the statements at issue were made. Even if an agency relationship existed, there is no evidence that the statements made were of the kind that Hernandez would be authorized to make on behalf of Westside. Therefore the FRE 801(d)(2)(D) hearsay exception does not apply to these statements. Because there is no other applicable hearsay exception, the last two sentences of Paragraph 4 and pages one through four of Exhibit A are inadmissible, and excluded from evidence. 3. Paragraph 12 and Exhibit B The first sentence of Paragraph 12 relates a statement made to Clark by Luna, and cites Exhibit B for support. Exhibit B appears to be a written transcription of an interview Clark took from Luna. As described above, Clark may be able to authenticate Exhibit B under FRE 901(b)(1) by testifying that she wrote it, signed it, and witnessed Luna sign it as well. However, Clark lacks personal knowledge of the facts related by Luna and, barring an affidavit or adoption of these statements from Luna, these statements are subject to exclusion unless an exception to the hearsay rule applies. The Secretary argues that paragraph 12 and Exhibit B are offered only to explain why the Secretary filed this action, not for the truth of the matter asserted therein, and therefore are not hearsay. FRE 801(c). If offered in support of the argument that, at the time this action was filed, the Secretary had a good faith belief that a violation of the FLSA had occurred, the evidence would indeed be admissible. Thus this evidence is relevant as it relates to Defendants’ motion for sanctions. However, Defendants’ motion for summary judgment does not raise this issue. Not surprisingly, then, the Secretary does not reference either Paragraph 12 or Exhibit B anywhere in the response to Defendants’ motion for summary judgment. To the extent that these statements are offered to establish Luna as a representative of other non-testifying claimants, the Secretary seeks to draw the inference that other non-testifying claimants would give similar statements if they were called to testify. This inference depends on the truth of Luna’s statements regarding the number of hours he worked, how many days a week he worked, how he was paid, and who paid him. The statements in paragraph 12 and Exhibit B are therefore offered for the truth of the matter stated and are hearsay. Because there is no other applicable hearsay exception, these statements are inadmissible and excluded from evidence C. Conclusion For the reasons stated above, Defendants’ motion to strike is GRANTED to the extent that the evidence objected to is offered to defeat the motion for summary judgment. However, to the extent that the Secretary offers the evidence to show that Clark took statements from Hernandez and Luna on certain dates, and to prove the Secretary’s good faith belief in filing this action, the evidence is admitted. Motion for Summary Judgment I. Preliminary Procedural Matter Before reaching the merits of the parties’ arguments, the court must first address the admissibility of the evidence submitted by the parties. A motion for summary judgment must be supported by evidence admissible at trial. FRCP 56(e). Authentication is a condition precedent to the admissibility of all supporting documents. FRE 901(a). The Ninth Circuit has repeatedly held that “unauthenticated documents cannot be considered in a motion for summary judgment.” Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.2002). Defendants have offered twenty-two exhibits (numbered exhibits 1 through 22) attached to the Declaration of Clay D. Creps in Support of Motion for Summary Judgment (“Creps Deck”), three exhibits (numbered exhibits A through C) attached to the Declaration of Krista N. Hardwick in Support of Defendants’ Motion for Summary Judgment (“Hardwick Deck”) and three additional exhibits (numbered exhibits A through C) attached to the Ms. Hard-wick’s Declaration In Support of Defendants’ Supplemental Brief (“Hardwick Supp. Decl.”). The Secretary offers fifteen exhibits (numbered 1 through 11 and A through D) attached the declaration of Matthew L. Vadnal (“Vadnal Deck”) in support of its response opposing the motion for summary judgment, three exhibits (numbered A through C) attached to the amended declaration of Karen A. Clark (“Am. Clark Deck”), and seven additional exhibits (numbered A through G) attached to Mr. Vadnal’s Declaration In Support of the Secretary’s Response to Defendants’ Supplementary Brief (“Vadnal Supp. Deck”). A significant number of these exhibits have not been properly authenticated by the parties and are therefore inadmissible; the court addresses this evidence below. Except as noted below, the evidence offered by the parties is accepted as admissible for summary judgment purposes. A. Depositions Combined, the parties have submitted thirty-two excerpts from the deposition testimony of nineteen claimants. The court notes that the Secretary has failed to provide the reporter’s certificate for twelve of its seventeen deposition excerpts, and has provided only a blank, unsigned reporter’s certificate for the remaining five deposition excerpts. Defendants have failed to provide the names of the deponent and the action as well as the reporter’s certificate for three of its deposition excerpts. When offered at summary judgment, deposition excerpts must identify the names of the deponent and the action and must include the reporter’s certification that the deposition is a true record of the testimony of the deponent. Orr, 285 F.3d at 774 (citing FRE 901(b); FRCP 56(e) and 30(f)(1)). The affidavit of a party’s counsel providing the names of the deponent, the action, and the reporter, with a statement that the attached copy is a “true and accurate copy” is not a sufficient substitute, without more, to satisfy the authentication requirement; “such an affidavit lacks foundation even if the affiant-counsel were present at the deposition.” Id. (citing Beyene v. Coleman Security Servs., 854 F.2d 1179, 1182 (9th Cir.1988)). Once a document is properly authenticated by one party, the requirement of authenticity is satisfied with regard to all parties and the document may not be excluded on grounds of inadequate authentication when submitted by another party. Id. at 775-76. Neither party has provided the reporter’s certification page for the following deposition excerpts: Francisco Ramirez Ojeda (Hardwick Supp. Deck, Ex. A; Vadnal Supp. Deck, Ex. F); Luis Humberto Rodrigues Jimenez (Hardwick Supp. Deck, Ex. B; Vadnal Supp. Deck, Ex. C); Jose Mondragon Caspar (Hardwick Supp. Deck, Ex. C; Vadnal Supp. Deck, Ex. D); and Alan Rafael Garcia Bogarin (Vadnal Deck, Ex. 9). This evidence is not properly authenticated and therefore is not admissible. The Secretary has offered the following deposition excerpts with only a blank, unsigned copy of the reporter’s certification page attached: Carlos Augusto Martinez (Vadnal Deck, Ex. 7; Vadnal Supp. Deck Ex. G); Jesus Christian Avila (Vadnal Deck, Ex. 8); and Juan David Gonzales Torres (Vadnal Deck, Ex. 10). Deposition excerpts submitted without the court reporter’s signed certification are properly excluded at the summary judgment stage. Orr, 285 F.3d at 774 (citing Pavone v. Citicorp Credit Servs., Inc., 60 F.Supp.2d 1040, 1045 (S.D.Cal.1997), aff'd, 172 F.3d 876 (9th Cir.1999)). This evidence is not properly authenticated and therefore is not admissible. Defendants have submitted properly authenticated copies for all of the remaining deposition excerpts, satisfying the authentication requirement for all parties. The court therefore admits all other deposition excerpts into evidence. B. Defendants ’ Exhibit 18 Defendants Exhibit 18 consists of thirteen declarations from various general contractors, subcontractors, and West-side employees. An unsworn declaration can have the force and effect of a sworn affidavit if it is signed, dated, and carries a declaration that the statement is true under penalty of perjury, and therefore may be used in lieu of the FRCP 56(e) affidavit requirement. 28 U.S.C. § 1746; FRCP 56(e), The first three declarations contained within Exhibit 18 (Tim Leslie, pg. 1-2; Dave Templeton, pg. 3-4; Gerald Rowlett, pg. 5-6) are not given under penalty of perjury. These declarations are not made in accordance with 28 U.S.C. § 1746, therefore they do not satisfy the requirements of FRCP 56(e) and are not admissible as evidence. Tearfie v. Whittlesea Blue Cab Co., No. 98-16377, 1999 WL 278100, at *1 n. 4 (9th Cir. Apr. 12, 1999) (declining to consider affidavit not made under penalty of perjury); Reese v. Baldwin, No. 97-35894, 1998 WL 452092, at *1 (9th Cir. July 27, 1998) (district court did not abuse its discretion by excluding statement not made under penalty of perjury as inadmissible). Page 7 of Exhibit 18 is also inadmissible; this page consists of a random series of notes on an otherwise blank sheet of paper and is submitted without any proper foundation or other authentication. The remaining portion of this exhibit consists of ten declarations, each signed and given under penalty of perjury. Although eight of the declarations do not show the day they were signed, they do indicate the month and year, which is sufficient to satisfy the date requirement. Pieszak v. Glendale Adventist Med. Ctr., 112 F.Supp.2d 970, 999 (C.D.Cal.2000). Accordingly, these ten declarations (Ex. 18 pp. 8-28) satisfy the requirements of 28 U.S.C. § 1746 and are admitted into evidence. C. Defendants ’ Exhibit 17 Defendants’ Exhibit 17, pages 1 through 4, is a U.S. Department of Labor document form number WH-56, titled “Summary of Unpaid Wages,” dated February 2, 2009; it shows Karen Clark as the investigator and Westside Drywall, Inc., P.O. Box 99, 2755 Pacific Hwy 99, Hubbard OR 97032 as the employer, and a case id number of 1475678. The four page, five column form lists 53 names with corresponding “Period Covered by Work Week Ending Dates” and “Gross Amounts Due.” Exhibit 17, pages 7 through 10, is a second copy of this same document dated March 28, 2008. The only apparent difference in the content of the documents is the addition of Sergio Ayala Ramos as a claimant on the copy dated February 2, 2009. Pages 5, 6, and 11 through 65 of Exhibit 17 are copies of a U.S. Department of Labor document form number WH-55, titled “Wage Transcription and Computation Sheet,” completed by hand, and signed “K. Clark” as the investigator. Exhibit 17 is attached to the declaration of Clay Creps, with the attestation that these documents are true and correct copies of the Secretary’s calculations of wages. (Creps Decl. ¶ 20). FRE 901(b)(1) provides that a witness with knowledge of a document can authenticate it by testifying that it is “what it is claimed to be.” FRE 901 does not require personal knowledge of a document’s creation, but rather only personal knowledge that a document was part of an official file. See FRE 901 advisory committee’s note (“Pub-lie records are regularly authenticated by proof of custody, without more.”). FRE 901(b)(4) provides authenticity may be satisfied by the “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Here, while Mr. Creps describes no personal knowledge as to the creation of the documents in Exhibit 17, the documents were provided to him by the Secretary as part of the Department of Labor’s official investigative files. Moreover, the appearance and contents of the documents are consistent with the representation that these are official documents maintained by the Department of Labor as part of its investigation of Defendants’ alleged FLSA violations which are the subject of this case. This court therefore finds that there are sufficient indicia of authenticity support the admissibility of Exhibit 17 under FRE 901(a) and 901(b)(4). D. Exhibit C, Amended Clark Declaration The amended declaration of Karen Clark attaches as Exhibit C a two-page document which appears to be a form of data table. The court is unable to decipher the meaning or significance of this exhibit. It is attached without explanation and is never referenced in Clark’s declaration. Where a party attempts to introduce an exhibit by attaching it to a declaration or affidavit, FRCP 56(e) requires that the declarant or affiant have personal knowledge of the exhibit. Orr, 285 F.3d at 777. Clark’s declaration is entirely devoid of any evidence as to the origin or significance of this document or any statement that would allow the court to conclude that this exhibit could be authenticated through her personal knowledge or in any other manner allowed by FRE 901 or 902. Exhibit C is therefore not properly authenticated and inadmissible as evidence. E. Conclusion For the reasons stated above, Defendants’ Exhibit 18, pages one through seven (Creps Deck, Exh. 18, pp. 1-7) and Defendants’ Exhibits A, B, and C (Hardwick Supp. Deck, Exh. A, B, and C) are excluded from evidence. The Secretary’s Exhibits 7 through 10 (Vadnal Deck, Exh. 7, 8, 9, and 10) and Exhibits C, D, F, and G (Vadnal Supp. Deck, Exh. C, D, F, and G) are excluded from evidence. All other exhibits offered by the parties, that are not separately addressed in Defendants’ motion to strike, are admitted as evidence for summary judgment purposes. II. Facts Defendants move for summary judgment on four separate counts. For ease of analysis, the court reviews the factual basis for each claim separately, below. A. Statute of Limitations Defendants argue that the Secretary’s claims are barred in part by the statute of limitations. The action seeks damages and injunctive relief for willful and non-willful violations of the FLSA occurring from September 24, 2004, onward. (Am. Compl. ¶¶ 8-10). Prior to this action being filed, the parties signed four tolling agreements, which cumulatively provide that the period beginning December 1, 2007, until and including September 30, 2008, is not be included in the running of the statute of limitations. (Creps Deck, Ex. 1). The Secretary initially opposed summary judgment on this issue. However, on March 15, 2010, the Secretary filed an unopposed motion to dismiss, with prejudice, all claims for back wages earned before December 1, 2004. (Docket No. 102). This motion was granted by order of the court entered March 16, 2010. (Docket No. 107). Accordingly, only those claims based on events occurring on and after December 1, 2004, will be considered. B. Ms. Salem The Secretary filed an unopposed motion to dismiss, with prejudice, defendant Shirine Salem on March 15, 2010. (Docket No. 102). This motion was granted by order of the court entered March 16, 2010. (Docket No. 107). Defendants’ motion for summary judgment is therefore moot as to this defendant, and the factual basis for the claim need not be examined. C. Claims for Testifying Claimants 1.Dismissed Claimants The Secretary filed an unopposed motion to dismiss, with prejudice, claimants Efren Martinez Carmen, Florencio Diaz Bernabe, Miguel Angel Mendoza Hen-era, Juan Ramirez Reyes, Luis Ernesto Sepulveda, and Angel Isaac Ramos Sotelo on March 15, 2010. (Docket No. 102). This motion was granted by order of the court entered March 16, 2010. (Docket No. 107). The motion for summary judgment is moot to the extent that it seeks judgment with regard to these claimants, and the factual basis for these claims need not be examined. 2.Francisco Ramirez, Luis Umberto Rodriguez, and Jose Mondragon-Gaspar No admissible evidence has been submitted in support of the parties’ respective motions regarding these claimants. (Docket Nos. 83 & 86). Therefore there are no facts for the court to examine with regard to these claimants. 3.Sabas Fernandez Hernandez Defendants move for summary judgment with regard to Sabas Fernandez Hernandez (“Hernandez”) on grounds that the evidence shows he is a Westside employee and has been properly compensated for all work performed. (Concise Statement of Material Facts ISO Defendants’ Motion for Summary Judgment (“DSOF”) ¶¶ 5-11). Hernandez submitted a wage claim to BOLI February 4, 2007, (Clark Deck ¶ 13, Ex. A pp. 24-26), and gave a statement to Clark on September 17, 2007. (Clark Deck ¶ 4, Ex. A pp. 1-4). Clark calculated his wages owed as $16,656.64 for hours worked for the period starting September 25, 2004, through June 24, 2006. (Creps Deck, Ex. 2, pp. 26-27). Hernandez has been employed by Westside doing drywall patch work since March of 2008. (Hernandez Dep. 7:20-8:8). His prior employers were Bruce Packing, Canby Drywall, and Team Clean; he has provided paystubs from each of his them. (Hernandez Depo. 12:3-13; Creps Deck, Ex. 2, pp. 13-19). The Team Clean, Inc., paystubs were issued at irregular intervals and cover the period between April 26, 2004, through June 5, 2004. (Creps Deck, Ex. 2, pp. 13-14). The Canby Drywall, Inc., pay-stubs were issued at 14 day intervals and cover the period beginning March 24, 2007, through June 23, 2007. (Creps Deck, Ex. 2, pp. 18-19). The Brace Packing pay-stubs were issued at lfourteen day intervals and cover the period starting December 30, 2007, through March 8, 2008. (Creps Deck, Ex. 2, pp. 21-25). Hernandez also provided three 2007 paystubs from Express Personnel Services, dated September 30, October 7, and October 14, showing the notation “BrueePac, Job 1478.” (Creps Deck, Ex. 2, pp. 11-12, 20). Hernandez denies that he worked for Westside during 2004, 2005, or 2006; he also denies that he is owed any back wages and does not wish the Secretary to pursue any claim on his behalf. (Creps Deck, Ex. 2; Hernandez Dep. 24:5-26:23). D.Claims for Nom-Testifying Claimants Westside has its own employees and also uses subcontractors for some of its work. (Declaration of Mohsen Salem In Support of Defendants’ Motion for Summary Judgment (“Mr. Salem Decl.”) ¶¶ 7, 8; Creps Deck, ¶ 21 & Ex. 18 pp. 8-28). Westside employees are hired to perform different jobs, such as cleanup (Creps Deck Ex. 19, Luna Dep. pp. 34:12-20); patchwork (Creps Deck, Ex. 2, Hernandez Dep. pp. 7:21-8:5; Ex. 8, Ramos Dep. pp. 7:4-12); finishing, texturing, and taping (Creps Deck Ex. 3, Sepulveda Dep. pp. 7:1-20), repair work (Creps Deck Ex. 4, Carmen Dep. pp. 6:25-7:4); sheetrocking (Creps Deck Ex. 5, Bernabé Dep. pp. 6:19-7:17); and spraying (Creps Deck Ex. 6, Herrera Dep. pp. 6:22-7:8; Ex. 7, Reyes Dep. pp. 6:18-7:3). The Secretary asserts wage claims on behalf of fifty-two claimants ranging in amount from $70.00 to $46,378. (Creps Deck Ex. 17 pp. 1-4, 7-10). In calculating these claims, the Secretary has identified six “occupations”: drywall installer (Creps Deck, Ex. 17 pp. 6,12-17,19, 48-50, 55, 59, 63, 65), drywall laborer (Creps Deck, Ex. 17 pp. 20, 22, 43-47, 58), insulation (Creps Deck, Ex. 17 pp. 6, 26, 34, 36), patching (Creps Deck, Ex. 17 pp. 30, 54, 57), taper (Creps Deck, Ex. 17 pp. 29, 32, 38-41, 51), and mechanic (Creps Deck, Ex. 17 pp. 56). Nine worksheets, including those for Efren Carmen, Florencio Diaz Bernabe, Miguel Mendoza Herrera, Juan Ramirez Reyes, Angel Ramos, Luis Ernesto Sepulvo [sic], simply show “payroll” in the “occupation” field. (Creps Deck, Ex. 17 pp. 18, 21, 33, 35, 37, 52-53, 60, 62). The “occupation” field is blank on the other nine worksheets. (Creps Deck, Ex. 17 pp. 11, 23-25, 27-28, 31, 42, 61, 64). Multiple claimants have failed to appear for their depositions despite being properly subpoenaed (Creps Deck ¶ 18 &. Exs. 9-16), and others simply cannot be located or served, (Creps Deck ¶ 19), despite the Secretary’s efforts to obtain current contact information. (Am. Clark. Deck ¶ 5). 1. Israel Ayala Lugo Israel Ayala Lugo (“Ayala”) first started working for Westside in 2001. (Vadnal Supp. Deck, Ex. A, Ayala Dep. 26:7-9). He went directly to Westside, where he spoke to Moe about a job. (Ayala Dep. 21:10-18). Ayala told Moe he was a sheet-rock hanger, and Moe sent him to work with a person named Vega or Vera. (Id. 25:3-26:16). Ayala did not fill out an application or other paperwork and did not appear on Westside’s payroll. (Id. 19:24-20:11). He does not know what a subcontractor is. (Id. 20:12-13). He has never had his own contractor’s license or his own drywall company. (Id 58:6-13). Ayala worked as a sheetrock hanger, typically from 6:30 or 7 in the morning until 7 or 8 at night, or until 9 at night during the summer; he normally worked on Saturdays but would be done by 3 p.m. at the latest, and very rarely worked on Sundays. (Id. 45:4-24, 55:22-56:9). Martin Ayala, Rogelio Ayala, Sergio Ayala, Augustine Ochoa, and Reynaldo Mendoza were all members of Ayala’s crew. (Id. 47:21 -48:15). The crew all worked the same hours. (Id. 48:20-22). Ayala does not know Juan Miguel Estrada, Cruz Sanchez, Gabriel Sanchez, or any person named Virgilio or Rigoberto. (Id. 52:21-53:6). Ayala owns his own tools and drove his own car to the worksite. (Id. 44:10-45:4). Project materials such as the sheet-rock were already at the job site. (Id. 44:12-19). If they needed more materials to complete the project, Ayala and his crew would go to the Westside warehouse or, if they were too far away, they would go to suppliers such as Knez or ETS instead and charge the cost to the project number on the project site map. (Id. 58:14-59:2). Ayala and his crew members looked for work outside of Westside during slow times. (Creps Deck, Ex. 22 Ayala Dep. 36:19-37:10). They solicited work from Canby Drywall, Tri County Drywall, Kemper Drywall, and Mata Drywall. (Id. 37:11-38:11). December and January tended to be slow months just about every year. (Id. 39:3-12). Ayala was paid by the square foot, not by the hour. (Vadnal Supp. Dec!., Ex. A Ayala Dep. 29:4-6). Ayala and his crew filled out “time cards” indicating the square footage of the house they were hanging sheetrock in, but Westside would pay according to the footage that the maps showed, which was generally less. (Id. 46:15-24). Ayala was first paid by a person named Sergio or Hector, then by Jose Rodriguez and Juan Manuel Jimenez. (Id. 32:2-14). Jose Rodriguez and Juan Jimenez gave him cash in an envelope for his pay; Ayala believed that they received a check from Westside which they cashed and then distributed among the crew. (Id. 33:12-34:22). Both Jose Rodriguez and Juan Jimenez took money out of his pay, allegedly for tax purposes. (Id. 46:25-47:10). Ayala thinks it is possible that by paying only Rodriguez and Jimenez, West-side avoided having nonlicensed workers on the payroll, but has no idea why West-side would do this. (Id. 42:12-43:11). For the first year, Ayala’s supervisor was a person named Travis, then Juan Bogarin was his supervisor for the next two years; after that his supervisor was either Moe, Ismael, or Kamal depending on where he was working. (Id. 30:22-31:15). Moe visited the crew at project sites he was supervising. (Id. 39:18-23). He spoke with Ayala mostly regarding the price of the project, but also about the proper way to hang sheetrock. (Id. 40:6 - 41:13). Kamal visited the crew at job sites, but not very frequently. (Id. 41:14-lb). Ismael visited the crew at job sites frequently, and talked to Ayala about both the work and other topics. (Id. 41:17-24; 54:9-17). These conversations typically lasted a maximum of twenty minutes. (Id. 41:25-22:11), Juan Jimenez never visited Ayala’s crew at project sites, and when Ayala saw Jose Solano at a work site they did not talk about the project, just socialized during breaks. (Id. 55:9-15). 2. Martin Ivan Ayala Guerrero Martin Ivan Ayala Guerrero (“Guerrero”) knew Ayala had a crew and asked if he could work with them. (Vadnal Supp. Decl., Ex. B Guerrero Dep. 68:8-16). Guerrero worked hanging sheetrock from 6 or 7 in the morning until 6:30 or 7:30 at night six days a week, Monday through Saturday, and would occasionally work on Sundays. (Guerrero Dep. 70:9-73:16). He had his own tools. (Id. 70:23-24). When he worked with Ayala’s crew he used Ayala’s vehicle, and later when he had his own crew he used his own vehicle to get to work. (Id. 76:2-6). Guerrero first worked with Rogelio, Sergio, Augustine, Daniel Solano Ayala, and Julio Ayala Lugo on Israel’s crew, hut did not work with either Antonio Pedroza or Romero Pedroza. (Id. 54:20-56:5). Guerrero does not know Juan Bogarin, Jorge Rodriguez Castillo, or Jorge Rodriguez Zuniga. (Id. 79:11-15). Guerrero later formed his own crew with Sergio, Marcos, and Leonel. (Id. 56:6-8). All members of Ayala’s crew and Guerrero’s crew worked exclusively as sheetrock hangers. (Id. 57:9-21). He was not instructed to form a crew but rather decided to do so on his own; he simply went and asked for work, and was not asked any questions about whether he was working with “JSR” or “JCR.” (Id. 68:17-70:8). Guerrero was paid by the square foot, not by the hour. (Id. 64:25-66:17). Guerrero was always paid in cash, first by Ayala and later by Jose Solano Rodriguez. (Id. 53:1-23). Guerrero tracked his work on a sheet provided by Westside and returned the completed form to Westside; he got this form and the project site map from the Westside office. (Id. 51:19-52: 9, Deposition Ex. 20). Guerrero had to identify the person that Westside would pay on the sheet he used to track his work; he did this by writing the initials “JSR,” for Jose Solano Rodriguez, at the top. (Id. 50:5-51:8, Deposition Ex. 20). Guerrero does not recognize “JSR” as the name of a company. (Id. 67:13-18). The workers filled out the sheets, delivered them to Westside, and Solano picked up their biweekly pay. (Id. 64:21-24). Solano gave a lump-sum payment to Guerrero or another crew member with the understanding that they would then distribute it among the crew members. (Id. 63:20-64:24). Solano did not give Guerrero any paperwork with his pay. (Id. 95:7-21). If there were any discrepancies with his pay, Guerrero addressed this directly with Doug or Moe at Westside; Westside either corrected the problem by adding in the missing pay to his next paycheck or denied that there was an error. (Id. 89:12-90:16). If a job was more difficult than usual, Guerrero spoke directly with Moe or the project supervisor to negotiate a higher rate of pay per square foot; those requests were not always approved. (Id. 97:15-20, 98:21-99:13). This practice continued after Guerrero formed his own crew. Guerrero met Zech at a work site and took on a job hanging sheetrock that Zech offered; when that project was complete Zech offered Guerrero another house. (Id. 92:14-21). Guerrero asked where Zech worked, and Zech responded he was a supervisor for West-side. (Id. 92:22-93:1). One of Westside’s employees is supervisor Zack Boeckman. (Creps Deck, Ex. 18 pp. 27-28). It became Guerrero’s practice to go to Zech to get work, however, he and his crew continued to fill out the sheets and deliver them to Westside. (Id. 93:3-7). As leader of his own crew Guerrero was still paid in cash by Solano; Guerrero divided the cash among the crew members after deducting gas money and any expenses incurred for the project. (Vadnal Deck, Ex, 6 Guerrero Dep. 75:20-76:1). Guerrero went to the Westside office to get work; he dealt primarily with Zech but would work with whoever had work. (Vadnal Supp. Deck, Ex. B Guerrero Dep. 81:15-82:16). Guerrero got job site maps directly from Westside supervisors. (Guerrero Dep. 81:15-25). The project supervisor’s name and phone number are listed on the maps. (Id. 83:1-84:4; Creps Deck, Ex. 20 Guerrero Dep., Deposition Ex. 20). Guerrero has maps showing Doug, Zech, Kamal, and Moe as the supervisor. (Id. 83:1-23; Creps Deck, Ex. 20 Guerrero Dep., Deposition Ex. 20). The maps list four to six things for which may result in a backcharge and/or “removal from the job with no pay.” (Id.; Creps Deck, Ex. 20 Guerrero Dep., Deposition Ex. 20). The project supervisor regularly visited the crew at project sites, to keep track of progress and to provide instructions on how they wanted the job done. (Guerrero Dep. 58:25-59:19). The visits tended to be brief, ten to twenty minutes long, unless the supervisor was there to discuss changes to the project or difficulties that the crew encountered with the installation. (Id. 60:17-62:7). The supervisor would call Guerrero if there were any issues with a completed job, (Id. 84:20-85:2). 3. Jorge Humberto Rodriguez Zuniga Jorge Humberto Rodriguez Zuniga (“Zuniga”) worked for Westside doing patch work, initially at an hourly wage of $8.50 but later received a raise to $9.50 per hour. (Creps Deck, Ex. 21 Zuniga Dep. 15:4-16:18). Zuniga was paid in cash by a person named Doug. (Zuniga Dep. 17:25-18:3-7). Westside employees identify Doug Bennett as a Westside supervisor. (Creps Deck, Ex. 18 pp. 14-28). Mr, Bennett has not filed a declaration in this case. 4. Mario Alberto Luna Pava Mario Alberto Luna Pava (“Luna”) was paid by check when he first started working for Westside in the 1990s, but was later paid in cash. (Creps Deck, Ex. 19 Luna Dep. 22:25-23:11). Luna stopped working for Westside in 2004. (Luna Dep. 64:13-19). III. Legal Standard Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FRCP 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the non-moving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548, A non-moving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The court may only consider admissible evidence in ruling on a motion for summary judgment. FRCP 56(e)(2008); Orr, 285 F.3d at 773. The court must view the evidence in the light most favorable to the non-moving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir.1981). However, deference to the non-moving party has limits. The nonmoving party must set forth “specific facts showing a genuine issue for trial.” FRCP 56(e). The “mere scintilla of evidence in support of the plaintiffs position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted). TV. Analysis A. Statute of Limitations The Secretary’s unopposed motion to dismiss all claims for back wages earned before December 1, 2004, was granted, with prejudice, on March 16, 2010. (Docket No. 107). Therefore Defendants’ motion for summary judgment is DENIED as moot to the extent that they seek summary judgment on the Secretary’s claims for willful violations. However, the statute of limitations for FLSA actions is three years for “willful” violations; for “non-willful” violations the statute of limitation is two years. 29 U.S.C. § 255(a); Dent v. Cox Commc’ns Las Vegas, Inc., 502 F.3d 1141, 1144 (9th Cir.2007). The Secretary alleges both willful and non-willful violations of the FLSA. Whether an FLSA violation is “willful” is a mixed question of law and fact. Alvarez v. IBP, Inc., 339 F.3d 894, 908 (9th Cir.2003) (internal citation omitted). To show that Defendants willfully violated the FLSA, the Secretary must prove that Defendants “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].” Chao v. A-One Med Servs. Inc., 346 F.3d 908, 918 (9th Cir.2003) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988)). The determination of willfulness is within the province of the trier of fact. However, whether the statute of limitations has run on a plaintiffs claim is a purely legal issue. Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 790 F.2d 727, 733 (9th Cir.1986). Therefore, Defendant’s motion is GRANTED to the extent that the Secretary may recover damages only for non-willful claims accruing after December 1, 2005. B. Shirine Salem The Secretary’s unopposed motion to dismiss Ms. Salem as a defendant, with prejudice, was granted March 16, 2010. (Docket No. 107). Therefore Defendants’ motion for summary judgment for this defendant is DENIED as moot. C. Claims for Testifying Claimants 1.Dismissed Claimants The Secretary’s motion to dismiss, with prejudice, the claims for back wages asserted on behalf of Carmen, Bernabe, Mendoza, Ramirez, Ramos, and Sepulveda was granted on March 16, 2010. (Order, Docket No. 107). Therefore Defendants’ motion for summary judgment with regard to the claims for these individuals is DENIED as moot. 2.Francisco Ramirez, Luis Umberto Rodriguez, Jose Mondragon Gaspar Defendants rely on excerpts of the deposition testimony of these three claimants as proof that these claimants are not Westside employees. The Secretary relies on this same deposition testimony as proof that these claimants are indeed Westside employees. However, as described in Section I above, Defendants submitted their deposition excerpts without the cover sheet showing the deponents’ names, the name of the action, or the reporter’s certificate, and the Secretary submitted her deposition excerpts without the reporter’s certificate. Therefore, the evidence offered by the parties is not properly authenticated and inadmissible. Defendants have not cited any authority for why this evidence otherwise should be admitted, and the court is aware of none. There is no admissible evidence available to the court to resolve the factual dispute between the parties. Therefore Defendants’ motion is DENIED with respect to these three claimants. 3.Sabas Hernandez Fernandez The record shows that Sabas Hernandez Fernandez did not work for Westside in 2004, 2005, or 2006. Mr. Hernandez began working for Westside in March of 2008. He denies that he is owed back wages and further denies that he has ever claimed that he is owed back wages. He does not want the Secretary to pursue any claim on his behalf. The Secretary has not presented any admissible evidence to substantiate the claim asserted on behalf of Mr. Hernandez, thus Defendants’ motion is GRANTED with respect to Mr. Hernandez. 4.Jose Gaspar Defendants move for summary judgment with regard to Jose Gaspar on grounds that he has twice failed to appear for his deposition despite being properly served with a subpoena. Defendants cite no authority in support of their argument that a claimant may be dismissed from this action simply for failing to appear for his deposition. Rather, Jose Gaspar falls within the class of nontestifying claimants, and the claim brought on his behalf is addressed within the court’s opinion on that issue. Therefore Defendants’ motion for summary judgment as to this claimant individually is DENIED. 5. Mario Alberto Luna Pava The record shows that while Mario Luna was once a Westside employee, he stopped working for Westside in 2004. At oral argument, Mr. Vadnal acknowledged that Luna’s deposition testimony directly contradicts his previous interview statement to Clark, and that based on his sworn deposition testimony there is no evidence supporting a claim for Luna. Therefore, the Secretary is no longer pursuing any claim on behalf of this individual, as indicated by the Secretary’s omission of this claimant from the Supplemental Exhibit A filed with the Secretary’s first and second motions to amend. Therefore Defendants’ motion for summary judgment is GRANTED as to Mario Luna. D. Claims for Non-Testifying Claimants Defendants argue that summary judgment is appropriate on all claims brought on behalf of non-testifying claimants. The plaintiff in an FLSA action bears the burden of proving as a matter of just and reasonable inference that he or she performed work for an employer, and was not properly compensated. Imada v. City of Hercules, 138 F.3d 1294, 1296 (9th Cir.1998) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) (superseded by statute on other grounds)). Once the plaintiff proves a prima facie case, the burden shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference drawn by plaintiffs evidence. Brock v. Seto, 790 F.2d 1446, 1448 (9th Cir.1986); see also Chao v. Akron Insulation & Supply, Inc., 184 Fed.Appx. 508, 510 (6th Cir.2006). Put succinctly, the issue regarding non-testifying claimants is two fold. First, the court must determine whether the claimants are Westside employees. If so, the court must determine whether the evidence is sufficiently representative of the non-testifying claimants. Defendants argue that the Secretary’s claims on behalf of non-testifying claimants are subject to summary judgment for several reasons. First, Defendants argue that as a threshold issue, under the economic realities test, the Secretary cannot show that the claimants are Defendants’ employees. Second, Defendants argue that the Secretary’s claims are so highly individualized that no claim is representative of any other claim. Third, Defendants argue that even if there are sufficient commonalities between the claims, the claimants who have testified are not sufficiently representative of the non-testifying claimants. Finally, the Defendant argues that the Secretary’s errors, such as identifying claimants later proven to be properly paid Westside employees and calculating wages without full information on a potential claimant’s absences or vacations, renders all other claims suspect. The court notes that while there are instances in the record of errors by the Secretary in identifying some of the claimants or their jobs and work hours, these errors are not dispositive of the Secretary’s claims and instead bear on the credibility of those claims. The court addresses the threshold issue of the economic realities test first, and the two remaining arguments in turn. 1. The Economic Realities Test The Supreme Court and the Ninth Circuit have consistently found that the central purpose of the FLSA is to enact minimum wage and maximum hour provisions designed to protect employees. See, e.g., Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981); Adair v. City of Kirkland, 185 F.3d 1055, 1059 (9th Cir.1999). The FLSA’s definition of employee has been called the “ ‘broadest definition that has ever been included in any one act.’ ” U.S. v. Rosenwasser, 323 U.S. 360, 363 n. 3, 65 S.Ct. 295, 89 L.Ed. 301 (1945) (quoting 81 Cong.Rec. 7,657 (1938) (statement of Sen. Black)). “ ‘Employ’ includes to suffer or permit to work.” 29 U.S.C. § 203(g). “ ‘Employer’ includes any person acting directly or indirectly in the interest of an employer....” Id. § 203(d). The Ninth Circuit has held that the FLSA definition of “employer” is not to be limited to its common law concept, but “is to be given an expansive interpretation in order to effectuate the FLSA’s broad remedial purposes.” Boucher v. Shaw, 572 F.3d 1087, 1090-91 (9th Cir.2009) (citing Lambert v. Ackerley, 180 F.3d 997, 1011-12 (9th Cir.1999) (internal quotation marks and citations omitted)). “The touchstone is the ‘economic reality’ of the relationship.” Id. (citing Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961)). Courts have generally undertaken the economic reality analysis in one of two contexts: disputes over whether the plaintiff is an independent contractor or an employee, and disputes over whether or not a defendant is a joint employer. The parties do not address this distinction, but neither test is perfect in this case. Defendants argue that the claimants are employees of third party subcontractors, not that they are independent contractors; meanwhile, the Secretary argues that Defendants are the sole employer, not that they are a joint employer. However, two things are true: if defendants are not a joint employer, then they are not an employer at all; also, if the claimants are independent contractors, then they are not Defendants’ employees. a. Joint Employer Two or more employers may jointly employ someone for purposes of the FLSA. Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1469 (9th Cir.1983), abrogated on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 539, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (citing Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973)). All joint employers are individually responsible for compliance with the FLSA. 29 C.F.R. § 791.2(a)(1981). Where the dispute regards whether a defendant is a joint employer, the relevant factors include whether the defendant (1) had the power to hire and fire 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. Bonnette, 704 F.2d at 1470. These factors are neither exclusive nor exhaustive, rather, a court should consider all factors “relevant to the particular situation” in evaluating the “economic reality” of an alleged joint employment relationship. Id. See also Torres-Lopez v. May, 111 F.3d 633 (9th Cir.1997) (applying Bonnette to a Migrant and Seasonal Agricultural Worker Protection Act claim); Moreau v. Air France, 356 F.3d 942, 950-52 (9th Cir.2004) (applying Bonnette and Torres-Lopez to Family Medical Leave Act claim). “The Bonnette factors are properly applied where an individual is clearly employed by one of several entities and the only question is which one.” Morgan v. F.T. MacDonald, 41 F.3d 1291, 1293 (9th Cir.1994) (declining to apply the Bonnette factors to determine whether an inmate was “employed”). Other relevant factors include (1) whether the service rendered requires a special skill; (2) whether responsibility under the contracts between a labor contractor and an employer pass from one labor contractor to another without material changes; (3) whether the premises and equipment of the employer are used for the work; (4) whether the work was piecework and not work that required initiative, judgment or foresight; (5) whether the employee had an opportunity for profit or loss depending upon the alleged employee’s managerial skill; (6) whether there was permanence in the working relationship; and (7) whether the service rendered is an integral part of the alleged employer’s business. Torres-Lopez, 111 F.3d at 639. The Bonnette economic reality factors are applicable in circumstances of “vertical” joint employment, that is, where a company has contracted for workers who are directly employed by an intermediary company. A-One Med. Servs., Inc., 346 F.3d at 917. The parties dispute whether the claimants are Westside’s employees, or employees of subcontractors who do work for Westside. Defendants argue that, in conformity with industry practice, West-side engages subcontractors to provide the labor to complete certain construction projects. The Secretary argues that the alleged “subcontractors” are an artificial construct operating as an illusory barrier between Westside and its labor force to shield Westside from its obligations under the FLSA. The analysis occurs in a vacuum, since no subcontractor has been identified and joined to this action as the actual employer. However, this court may still evaluate whether Defendants are joint employers under the Bonnette test. 1) Power to hire and fire The only evidence on the record that Defendants exercised any power to hire or fire any claimant in this case is Israel Ayala’s testimony that when he first went to Westside in 2001 looking for work, he spoke to Mr. Mohsen, who directed him to a person named Vega or Vera, and that Ayala began doing work on Westside projects from that date. The record is silent on who this person is, and there is no other evidence that any claimant in this action was hired or fired by Defendants. Martin Guerrero testified that he went directly to Ayala to ask for work, and became a member of Ayala’s crew that way. Both Guerrero and Ayala testified that the persons working on their work crews fluctuated, depending on who needed work, who had work, and how much work was available. Guerrero testified that when he formed his own work crew, he did so at his own initiative, not after consulting with or getting permission from anybody else. This evidence weighs in favor of finding that Defendants are not joint employers. 2) Supervision and control There is no evidence that Defendants told the laborers when to report to work, when to take breaks, when their workday ended, what days to work, or whether they were free to attend to personal business during the day. Defendants did, however, control which project sites the work crews are assigned to, control all decisions about what materials are used for the project, provide those materials, and require laborers to track their work on sheets provided by Westside and to turn in the sheets for payment. Westside supervisors regularly visited the project sites to provide supervision and instruction. However, these visits were brief, lasting only 10 or 20 minutes, and were not daily occurrences. There is no evidence that Defendants controlled the formation of or participation in work crews. There is evidence that West-side reserved the right to backcharge for work done incorrectly and retained the right to remove laborers from a project, without pay, under certain circumstances. Viewed in the light most favorable to the non-moving party, this factor weighs in favor of finding that Defendants are joint employers. 3)Rate and method of payment There is some evidence that claimants negotiated their rate of pay directly with Westside employees, and also sometimes resolved disputes regarding their pay directly with Westside employees. There is also some evidence, albeit disputed, that Westside employees paid claimants and controlled their method of pay. There is also evidence that the claimants received their pay from third persons who were not Westside employees. However, viewed in the light most favorable to the Secretary, this factor weighs in favor of finding that Defendants are joint employers. 4)Employment records There is evidence that Westside maintains employment records: Ms. Salem testified that she maintains them, subject to Mr. Salem’s supervision. References have been repeatedly made to the ex