Richard Reibstein Esq.

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As a leading practitioner of enhancing independent contractor compliance and defending against misclassification claims, Richard represents large and small companies in administrative and judicial matters across the country, in addition to his labor/employment and noncompete/trade secrets practices.

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Almost one year to the day following the joint statement by the Attorneys General of New York, New Jersey, and Montana that they intended to sue FedEx Ground for misclassifying drivers as independent contractors instead of employees, New York Attorney General Andrew Cuomo has commenced a lawsuit against FedEx Ground on behalf of the State of New York.  (New York State v. FedEx Ground Package System, Inc.)

The lawsuit was filed the same week as the Attorney General of the Montana, Steve Bullock, announced that his office settled its driver misclassification claims against FedEx Ground for $2.3 million.  The New York lawsuit also follows by two months the filing of a similar misclassification lawsuit by the Attorney General of Kentucky, Jack Conway, and comes three months after the Attorney General of Massachusetts, Martha Coakley, settled its driver misclassification claims against FedEx Ground for $3 million.

Cuomo’s lawsuit was filed in the New York Supreme Court for New York County. It alleges that, by classifying its drivers as independent contractors, FedEx’s Home Delivery unit fails to provide its drivers the rights afforded to “employees” under New York’s labor laws, which includes the Unemployment Insurance, Workers Compensation, Wage Payment, and Overtime laws.  According to the complaint filed in court, Cuomo alleges that “FedEx has the power to control, and does in fact control, almost all aspects of its drivers’ work” including “hours, job duties, routes, and even clothing.”  There are reportedly over 700 drivers in the Home Delivery unit.  (Click “More” for “Takeaway” below)

Less than three months after settling independent contractor misclassification charges with the Massachusetts Attorney General for $3 million, FedEx Ground has agreed to pay Montana $2.3 million to settle that State’s misclassification claims against the worldwide courier.

According to the Attorney General of Montana Steve Bullock, FedEx Ground is paying the State for its failure to pay unemployment insurance taxes for its drivers, whom the Attorney General claims were employees that FedEx Ground has been misclassifying as independent contractors. The $2.3 million includes interest and penalties for misrepresenting employee information in its quarterly unemployment insurance reports to the State.  (Click “More” for “Takeaway” below)

Yesterday, just outside Washington, D.C., state and federal workforce agency officials met to discuss their joint efforts to crack down on independent contractor misclassification.  The forum, entitled “Worker Misclassification: Federal-State Perspectives and Initiatives,” was one of the opening day’s general sessions at the National Conference on Unemployment Insurance.  (Click “More” for “Takeaways” below)

On October 13, 2010, Pennsylvania Governor Ed Rendell signed into law the Construction Workplace Misclassification Act, joining a growing number of states that have targeted an industry where misclassification of employees as independent contractors is believed to be most prevalent.

The law, which takes effect in 120 days following enactment, creates a strict definition of “independent contractor.”  No individual can be classified as an independent contractor unless he/she meets a three-part test where the individual:

(A)  has a written contract to perform services with the construction industry business;

(B)  is free from control or direction over the performance of such services under the contract and in fact; and

(C)  is customarily engaged in an independently established trade, occupation, profession or business.

This type of three-part standard is commonly called an “ABC” test – but the Pennsylvania standard is less onerous than the “ABC” laws governing independent contractors in the construction industry in New Jersey and New York, for example.   (Click “More” for link to “Steps to Ensure Compliance” below.)

Last week, a federal district court judge assigned to an independent contractor misclassification case granted class certification to workers who were treated as independent contractors but allegedly were misclassified as employees.  In Norris-Wilson v Delta-T Group, Inc., the U.S. District Court for the Southern District of California, applying California’s common law test for independent contractor status, found that the plaintiffs’ claims for overtime compensation against a healthcare “referral agency for independent contractor services,” which the plaintiffs called a “temporary staffing agency,” met the requirements for class action certification.  (Click “More” for two “Takeaways” below)

On September 30, 2010, the U.S. Department of Labor released its Strategic Plan for Fiscal Years 2011 – 2016.  Among the goals listed by Labor Secretary Hilda Solis is to identify and deter the misclassification of employees as independent contractors.  The Strategic Plan states in part as follows:

WHD will be a key partner in a joint Department of Treasury-Department of Labor initiative to detect and deter the misclassification of employees as independent contractors and to strengthen and coordinate federal and state efforts to enforce labor law violations arising from misclassification. Individuals wrongly classified as independent contractors are denied access to critical benefits and protections – such as family and medical leave, overtime, minimum wage and unemployment insurance – to which they may be entitled as regular employees. Employee misclassification also generates substantial losses to the Treasury and the Social Security, Medicare, and Unemployment Insurance Trust Funds. In its last comprehensive estimate of the scope of the misclassification problem for tax year 1984, the Internal Revenue Service estimated that 15 percent of all employers misclassified a total of 3.4 million employees as independent contractors, resulting in an estimated annual revenue loss of $1.6 billion in 1984 dollars ($3.4 billion in 2010 dollars).  (Click “More” for “Commentary” below)


In response to the increasing popularity of my blog here at www.www.independentcontractorcompliance.com, I have added an RSS feed and subscription by e-mail feature.   The publisher of this blog monitors important legal and newsworthy developments in the areas of employee misclassification and independent contractor compliance.   You are now able to…

In the absence of federal legislation addressing the issue of misclassification of employees as independent contractors, no less than 16 states have passed their own laws seeking to curtail misclassification of employees as independent contractors, including five states so far in 2010: Connecticut, Nebraska, New York, Vermont, and Wisconsin.

As noted in the preceding blog post on this site (see below), Congress has now introduced in this session of Congress two bills seeking to crack down on misclassification of employees as independent contractors: the Employee Misclassification Prevention Act (EMPA) and the Fair Playing Field Act of 2010.  Although those  two bills, if enacted, would dramatically change the landscape of federal IC legislation, neither should end the use of legitimate independent contractors.  Rather, businesses would be able to continue to use ICs provided that the legal tests are satisfied for independent contractor status under federal and state laws.  This blog post discusses the ways  by which businesses can enhance their compliance with existing and proposed IC laws, including two alternatives to the costly and often unacceptable alternative of reclassifying independent contractors as employees.