Author: Richard Reibstein Esq.

Yesterday, June 13, 2023, the NLRB issued a lengthy decision in its Atlanta Opera case dealing ‎with the applicable test for independent contractor status under the National Labor Relations Act ‎‎(NLRA). This decision reversed the Board’s prior test for IC status as expressed in the ‎SuperShuttle case decided by the NLRB in 2019. In a lengthy decision, three of the four ‎members of the Board expressly declined to follow a 2017 decision by the U.S. Court of Appeals ‎for the District of Columbia Circuit in a case referred to as FedEx II, where the circuit court ‎concluded that the NLRB was seeking to “nullify this court’s [prior FedEx] decision” as to the ‎applicable test for independent contractor status. The bulk of the Board’s majority 19,000-word ‎decision focused on the supposed fallacies in the NLRB’s SuperShuttle decision and the ‎correctness of the NLRB’s prior FedEx decisions, which has twice been rejected by the D.C. ‎Circuit. But when the NLRB majority’s new decision is analyzed, does it really make a ‎difference what test the NLRB uses to determine IC status? As vividly demonstrated by the ‎Atlanta Opera case, nearly all of these independent contractor cases will be decided the same ‎way, regardless of which test is used. ‎

The lead case in our review of last month’s legal developments in the area of independent contractor compliance and misclassification is a decision by the U.S. Court of Appeals for the First Circuit, in which it addresses the interstate transportation worker exemption to arbitration under the Federal Arbitration Act (FAA). That decision, at odds with a recent decision issued by another federal appellate court, treated the frequency of driving as the principal criterion in determining whether an independent distributor of food products engages in interstate transportation. As noted below, the First Circuit, applying the Supreme Court’s 2022 decision in Southwest Airlines v. Saxon, found that the distributors are exempt from arbitration because they “frequently perform transportation work [even if] they also have other responsibilities.” Decisions like the First Circuit’s have created confusion among businesses, independent contractors, employees, and their lawyers over the scope of the FAA’s interstate transportation exemption and the implications of Saxon. Many ICs and other workers that drive long distances every day have little or no relationship to the transportation industry. For example, many independent surveyors and insurance adjusters work at multiple locations in a multi-state area each day, some at significant distance from one location to the next. Are they interstate transportation workers simply because they drive frequently in different states? Likewise, incidental driving done by route sales employees who qualify as outside salespersons under the Fair Labor Standards Act, like driving by the independent distributors in the First Circuit case, is treated by the Labor Department and courts as work that is “incidental to … the employee’s own outside sales or solicitations.” 29 C.F.R. 541.504(a). One takeaway from the First Circuit decision is to make sure that agreements with independent contractors and other workers not engaged in the transportation industry describe their services in a manner that supports arbitration under the FAA. This is part of the IC Diagnostics (TM) process that has been the subject of other posts on this subject on this blog.

We reported in our October 10, 2022 blog post that Uber had agreed to pay $100 million in back ‎unemployment taxes to the New Jersey Department of Labor for having classified drivers as ‎independent contractors. Another state workforce agency has now joined New Jersey in ‎obtaining substantial tax payments from a gig economy company for unpaid unemployment taxes ‎related to its designation of workers as ICs instead of employees.‎ Last month, an appellate court in Wisconsin, a state which has a challenging independent ‎contractor test for unemployment insurance purposes, affirmed the state Labor Commissioner’s ‎assessment of unemployment taxes against Amazon with regard to drivers who deliver the ‎company’s products. With interest, the assessment per gig worker in Wisconsin is likely to exceed ‎the per-worker amount that Uber paid to New Jersey. What does this mean for companies using ‎an IC business model? For those companies that have chosen to utilize a compliance process such ‎as IC Diagnostics (TM), the typical starting point is a review of the IC relationship under federal ‎and state wage and hour laws. That is followed by a review of the varying IC tests under ‎applicable state unemployment insurance, workers’ compensation, and wage payment laws – all ‎part of a process to restructure, re-document, and/or re-implement IC relationships in a ‎customized and sustainable manner designed to minimize liability for independent contractor ‎misclassification.

Three of the five court cases of note in this monthly update involve California’s Assembly Bill 5, ‎which has exponentially increased litigation involving independent contractor misclassification in ‎that state. That development dispels any notion that that law would provide clarity, simplify the ‎test for independent contractor status, and reduce litigation. Instead, it upended decades of ‎settled law by codifying a strict test for IC status that now contains as many as 75 exemptions. ‎Moreover, few businesses in California have reclassified workers from ICs to employees. The ‎three cases summarized below include one that validates Proposition 22, a voter initiative that ‎rejected A.B. 5 for app-based ride sharing and courier companies. Another involves a lawsuit by ‎companies in those same industries alleging that A.B. 5 did not provide them with an exemption, ‎as it does for dozens of other industries, due to the “animus” of the legislature toward those app-‎based businesses. A federal appellate court agreed that the lawsuit is plausible and may proceed. ‎The third case involves litigation filed in 2015 that has seen a number of appeals over the ‎application of A.B. 5. One way by which companies operating in California can minimize IC ‎misclassification exposure is to utilize one of the exemptions in A.B. 5 and its successor law, ‎A.B. 2257. Many have sought to do so by resorting to a process such as IC Diagnostics (TM), ‎which enhances IC compliance by restructuring, re-documenting, and/or re-implementing IC ‎relationships in a customized and sustainable manner in view of applicable law, including A.B 5. ‎

Ever since the New Jersey Supreme Court issued its 2015 decision in the Sleepy’s case, establishing an ABC test for wage and hour lawsuits, class action lawyers have targeted companies operating in that state for IC misclassification class actions.  We summarize below four developments in lawsuits and administrative proceedings in New Jersey: two settlements involving last-mile logistics firms; a case involving a lengthy appellate court process and legislation involving an industry seeking an exemption from the ABC test for independent contractor status; and an administrative investigation and assessment following a joint enforcement initiative by regulatory agencies.  The ABC test has triggered more litigation recently than any other test for independent contractor status.  Not surprisingly, five of the six legal developments we report on below involve three states with ABC tests: California, Massachusetts, and New Jersey.  While proponents of the ABC test argue that that this three-factor test simplifies this area of the law, experience has shown that it creates more litigation and uncertainty than multi-factor tests.  As we commented in a prior blog post, a professor who has studied the matter concluded that the ABC test “does not make the law of employee status clearer, simpler or more uniform [but rather] … makes the law more complex and less uniform than it was before.” That challenge has prompted more companies to undertake a process such as IC Diagnostics(TM) to restructure, re-document, and/or re-implement their IC relationships in a customized and sustainable manner to minimize misclassification liability, regardless of the IC tests that may be applicable.

Case developments last month involved independent contractor misclassification lawsuits in the Southwest, Southeast, and Mid-Atlantic states. While more IC misclassification lawsuits have been brought in California than any other state, a quick search of our 250-plus posts published since we began this blog includes reports on several thousands of cases, legislative developments, and administrative initiatives in all 50 states and the District of Columbia. In terms of lawsuits, class action lawyers have taken the lead in filing IC misclassification class and collective actions across the county.  But many cases have also been brought by federal and state enforcement agencies, such as the first of four cases reported below, which was commenced by the U.S. Department of Labor and resulted in a mid-seven figure judgment against two related companies.  In the face of these types of litigation risks, many companies have taken steps to minimize IC misclassification exposure by using a process such as IC Diagnostics (TM) to restructure, re-document, and/or re-implement their IC relationships in a sustainable and customizable manner, consistent with their business models. Had the two companies targeted by the Labor Department in the first case we discuss below used a process such as IC Diagnostics, they likely would have avoided the lawsuit altogether or, even if sued, would have maximized their chances of success.    

Half of the court cases that we report on below from last month involve legal proceedings related to the sports industry: golf caddies, tennis pros, and sports editors.  Misclassification within the multi-faceted sports and athletics industry has been addressed by courts and administrative agencies in many of the cases about which we have reported over the years, including high school referees, security representatives for the NFL, tennis officials at the U.S. Open, lacrosse officials, pro football cheerleaders, and basketball arena crew members including camera, audiotape, and replay operators, to name just a few.  Sports and athletics businesses including golf courses, instructional firms, professional leagues, amateur athletic organizations, stadiums, tournaments, sports publishers, and a host of others that use independent contractors can minimize their IC misclassification exposure by using a process such as IC Diagnostics (TM) that many companies in other industries have used for years.  That type of process restructures, re-documents, and/or re-implements independent contractor relationships in a manner than maximizes compliance with federal and state IC laws and regulations in a customized and sustainable manner.   

The most publicized legal development in the area of independent contractor law last month involved an opinion issued by a federal appellate court in a gig economy case that generated national attention.  In a decision discussed below, the United States Court of Appeals for the First Circuit held that local couriers who make deliveries to Postmates’ customers of products they pick up from retail stores are not interstate transportation workers.  As a result, the court held that the couriers do not fall into the interstate transportation exemption from arbitration under the Federal Arbitration Act.  In reaching this decision, the First Circuit distinguished the couriers from drivers making last-mile deliveries of products for Amazon, whom the court found to be interstate transportation workers under the federal arbitration law.  While this Postmates decision provides companies involved in local delivery services with additional legal authority when they seek to compel arbitration of a proposed class action, the decision is not nearly as momentous as many commentators have suggested. Why? Because companies can also compel arbitration under state arbitration laws, almost all of which do not contain an exemption for interstate transportation workers.  We pointed that out in a blog post last year involving a case holding that certain ride-sharing drivers were exempt from arbitration under the Federal Arbitration Act but were nonetheless compelled to arbitrate under a state arbitration law. Prudent companies seeking to compel arbitration of proposed class actions based on allegations of independent contractor misclassifications would be also be wise to take the steps we outlined in an earlier blog post where we offered suggestions as to how to draft effective arbitration clauses as part of a process designed to minimize misclassification liability.

In response to the U.S. Department of Labor’s proposed regulation released to the public on October 11, 2022 entitled “Employee or Independent Contractor Classification under the Fair Labor Standards Act,” an unprecedented number of comments – 54,644 – were posted by individuals and organizations as of 11:30 pm Eastern Time this evening, December 13, 2022, only one-half hour prior to the deadline to submit comments.  On the date the Labor Department released its proposed rule, we issued a comprehensive blog post entitled, “The Labor Department’s Independent Contractor Rule Has Little If No Legal Impact But Is Likely to Cause Anxiety for Many Stakeholders.” We asked in the introductory paragraph of that post, “What does this mean legally for both workers and businesses who are currently classified as ICs?”  Our response was:  “Not much, … since it is the courts that create law on this subject, not regulatory agencies.  But as a practical matter, the issuance of the proposed regulation, once finalized, will likely create anxiety among businesses and many of those who currently receive 1099s that the ground beneath them is shifting.  It will also give impetus to some workers who currently receive 1099s to file class actions seeking minimum wage or overtime payments under federal and state laws.”  Set forth below are the comments filed by the publisher of this legal blog on December 12, 2022.

Among the legal developments we report on below from October is a decision by a federal district court in California certifying a lawsuit for independent contractor misclassification as a collective action under the federal wage and hour law, allowing similarly situated individuals to join the lawsuit seeking unpaid overtime.  What was most significant about the decision is that the certification was based on little more than threadbare allegations and conclusory declarations. Unlike the more rigorous standard for class action certification under Rule 23 of the Federal Rules of Civil Procedure governing class actions, federal court judges have traditionally been given wide latitude in deciding whether to grant collective action certification for alleged violations under the federal Fair Labor Standards Act.  Few judges, however, have applied a more lenient standard than the one applied by the court in the first case summarized below, where it granted collective certification based on plaintiff’s declaration that she and other prospective members of the collective action “often worked more than 40 hours a week,” despite documentary evidence to the contrary. How can a business avoid the costs of defending against these types of claims that can turn into collective actions so easily? The answer is to elevate compliance with state and federal IC laws, minimizing the odds of being sued. Savvy companies have done so using a process such as IC Diagnostics (TM), which restructures, re-documents, and/or re-implements their IC relationships in a manner than maximizes IC compliance in a customized and sustainable manner consistent with their business models.