Service providers vendors (and those vendors’ employees) are free to assert claims that they  “employees” of the entity for which they are providing services under the FLSA under independent contractor misclassification and joint employer theories.  Service providers continue to do so despite limited success, the most recent example being Judge Andrew Carter’s (SDNY) summary judgment ruling that the USTA properly classified U.S. Open umpires as independent contractors.  Meyer v. United States Tennis Ass’n, 2014 U.S. Dist. LEXIS 128209 (S.D.N.Y. Sept. 11, 2014).

Analyzing the “economic realities” of the relationship between the Open and its umpires, Judge Carter observed that the umpires had control over whether to participate, how to umpire, and opportunity for profit or loss developing their business as tennis umpires both with the Open and within the tennis industry at large.  Further, the relationship was temporally sporadic in nature. Thus, the presence of neutral or contrary factors, including the Open’s investment in the business relative to the umpires’ and the umpire’s “integral” role, did not negate contractor status or create a question of fact.

The USTA’s victory in Meyer joins Major League Baseball’s win earlier this year employee misclassification claim brought by volunteers at the MLB All-Star game FanFest.  Employers must continue to monitor these issues.