Garcia Menjivar v. Nova Shotcrete and Concrete: Salinas Joint Employer Standard Alive and Well in the Fourth Circuit

August 12, 2025 | U.S. District Court for the Eastern District of Virginia | Report and Recommendation

Executive Summary

In an unpublished Report and Recommendation, Magistrate Judge Lindsey Robinson Vaala of the Eastern District of Virginia recommended granting default judgment against two related construction companies for unpaid wages under the Fair Labor Standards Act (FLSA) and Virginia wage statutes. Despite the defendants’ failure to appear, the Court conducted an independent assessment and held that both entities were joint employers, applying the Fourth Circuit’s framework to impose joint and several liability.

(For the purposes of this article, the Relevant Background, Decision, and Looking Forward sections focus exclusively on the joint employment assessment.)

Relevant Background

The case was brought by five pool construction workers who alleged that they regularly worked more than 40 hours per week without overtime pay and were denied their final weeks of wages. They sued Nova Shotcrete and Concrete, Inc. (“NSC”) and Crystal Blue Aquatics, LLC (“CBA”), both Virginia companies operating in custom swimming pool design, construction, and renovation. The defendants never appeared, and plaintiffs sought default judgment.

Important to our analysis, the plaintiffs alleged the following in support of joint employment:

1. Alex Heidt, along with other principals, managed and supervised employees for both NSC and CBA. He directed plaintiffs’ day-to-day work, oversaw jobsite operations, and exercised control across the two companies.
2. Heidt and the same group of managers held full authority to hire, fire, discipline, and alter the terms and conditions of plaintiffs’ employment. This authority applied to employees working under either entity.
3. Plaintiffs worked continuously for NSC and CBA for lengthy periods (Eduardo and Juvencio Barerra for roughly 79 weeks; Menjivar for 48 weeks; Hernandez for 39 weeks; Soriano for 52 weeks), demonstrating a long-term employment relationship with both companies.
4. Heidt and the same individuals held substantial financial interests in both NSC and CBA, served as corporate officers and members of each, and acted simultaneously as managers and supervisors of employees across both entities.
5. Plaintiffs performed their work on job sites where NSC and CBA operated together. Both companies also shared the same principal office at 64 Sycolin Road, Suite A, Leesburg, Virginia 20175, further evidencing operational overlap.
6. Heidt and the same officers created, implemented, and enforced workplace rules and policies at both companies, controlled payroll and wage decisions, and “substantially participated in decisions on behalf of [Defendants] to fail or refuse to pay Plaintiffs wages.” They also held authority to hire, fire, discipline, and alter conditions of employment.

Decision

The Court explained that joint employment exists where entities “share or codetermine the essential terms and conditions of employment” and identified six factors for analysis:

1. Whether the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, whether by direct or indirect means.
2. Whether the putative joint employers jointly determine, share, or allocate the power to hire or fire the worker or modify the terms or conditions of the worker’s employment.
3. The degree of permanency and duration of the relationship between the putative joint employers.
4. Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other.
5. Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another.
6. Whether the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll, providing workers’ compensation insurance, paying payroll taxes, or providing the facilities, equipment, tools, or materials necessary to complete the work.

Applying those factors, the Court found that defendants were joint employers and therefore jointly and severally liable for wage violations.

Looking Forward

In full disclosure, I represented several national franchise organizations as amicus curiae in Hall v. DirecTV, LLC, 846 F.3d 757 (4th Cir. 2017), and Salinas v. Commercial Interiors, Inc., 848 F.3d 125 (4th Cir. 2017), because both decisions endorsed an expansive joint employer standard that includes “indirect control.” As we explained in those proceedings, the Fourth Circuit’s “not completely disassociated” test departs from the more traditional approaches used elsewhere and presents heightened risk for franchisors. For that reason, any case that relies on Salinas is noteworthy—it reflects that the standard is continuing to take root in the Fourth Circuit.

That said, joint employment remains a fact-intensive inquiry. Franchisors should not assume liability is inevitable in the Fourth Circuit, but they should continue to take heed. The lesson is to carefully structure franchise agreements, operations manuals, and compliance practices to preserve franchisee independence in employment decisions, and to ensure that separation is documented and respected in day-to-day practice. Taking those steps places franchisors in the best position to defend against expansive joint employment claims under the Salinas standard.

Thomas O’Connell is a Shareholder at Buchalter APC and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.

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