Tag Archives: independent contractor

New Arizona Law Permits Parties To Establish Presumption Of Contractor Status Through Writing

As covered at length here, Arizona has enacted a new law effective August 6, 2016 allowing businesses and service providers seeking to enter into an independent contractor relationship to execute a “declaration of independent business status.”  A declaration complying with the statute creates a presumption of proper classification of the relationship between the parties as … Continue Reading

New York Federal Court Finds Business Properly Classified Translators As Independent Contractors

This month, two New York federal judges reviewing a claim of misclassification rejected a claim for overtime compensation, agreeing that a business properly classified two translators as independent contractors rather than as “employees” under the Fair Labor Standards Act and the New York Labor Law. See Mateo v. Universal Language Corp., 2015 U.S. Dist. LEXIS … Continue Reading

Uber Litigation Continues To Serve As Legal Lightning Rod for “On Demand” Economy

Cases challenging the independent contractor status of certain service providers under the wage-and-hour laws are likely to continue in the near future due to the difficulties in applying the law to complex factual patterns. The Department of Labor recently provided additional guidance for determining contractor status in the form of an Administrator’s Interpretation (and the … Continue Reading

USDOL Issues Administrative Interpretation Reflecting Administration’s View Of “Independent Contractor” Analysis Under FLSA

As previously promised, the Department of Labor today issued its eighth Administrator’s Interpretation (“AI”) since the 2010 implementation of this form of guidance. Today’s Interpretation, as expected, reflects the current Department’s position that the governing analysis is the economic realities test which, in the Department’s view, is used to determine “whether the worker is economically … Continue Reading

WHD Administrator Weil Announces Impending “Administrator Interpretation” Regarding Contractor Status

“Administrator’s Interpretations” from the Wage Hour Division have been relatively few and far between since their implementation in 2010. However, on Friday Administrator David Weil, speaking at a conference at New York University School of Law, indicated his office would be issuing such an interpretation to “clarify” who qualifies as an independent contractor under the … Continue Reading

Nevada Supreme Court: Exotic Dancers Are Employees Under State’s Law

In a setback for that state’s thriving adult entertainment business, the Nevada Supreme Court yesterday ruled that Sapphire Gentleman’s Club improperly classified its 6000+ semi-nude performers as independent contractors rather than employees under Nevada’s minimum wage law.  Terry et al. v. Sapphire Gentlemen’s Club et al., case number 59214, 10/30/14. The Nevada court, citing policy … Continue Reading

(Another) Cable Provider Not Joint Employer of Installers

One common “joint employer” allegation which has been regularly rejected by courts is that a regional cable provider is a joint employer of its installation subcontractors’ employees or contractor installers, due to the alleged business or operational control the cable provider exerts over the subcontractor in how installation work is performed.  A Missouri court recently … Continue Reading

U.S. Open Tennis Umpires Properly Classified As Independent Contractors

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 … Continue Reading

Virginia Governor Signs Executive Order Establishing Joint Task Force on Worker Misclassification and Payroll Fraud

Virginia employers may see more robust worker misclassification enforcement and enhanced cooperation between state agencies with respect to misclassification issues in the near future.  Following the lead of the federal government and other states, Governor Terry McAuliffe’s recent Executive Order, signed on August 14, 2014, calls for the establishment of an interagency task force on … Continue Reading

Eastern District of New York Senior Judge Deems FLSA Allegations Of Overtime, Contractor Misclassification Inadequately Pled

Following the Second Circuit’s clarification that an FLSA plaintiff must provide “sufficiently developed factual allegations” regarding hours worked (DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89-90 (2d Cir. 2013)), District Courts both within and outside the Circuit have sought to apply that standard to Fair Labor Standards Act complaints.  In one of the … Continue Reading

New York Legislature’s Second “Fair Play Act” Enacted to Cover Commercial Goods Transportation Industry

On the heels of similar legislation passed in 2010 for the construction industry, and consistent with the state’s continuing focus on alleged misclassification of service providers as independent contractors, the New York state legislature recently passed the Transportation Industry Fair Play Act, N.Y. Labor Law § 862 et seq.  This legislation creates a “presumption of … Continue Reading

New York Federal Court Finds Bank Properly Classified Financial Services Consultant As Independent Contractor

Reviewing a working arrangement common in the financial services industry, particularly with respect to experienced professionals, Judge Katherine B. Forrest of the Southern District of New York recently upheld the Royal Bank of Canada’s (RBC) treatment of a “consultant” as an independent contractor under the federal and state wage/hour and anti-discrimination laws.  Sellers v. Royal … Continue Reading

Labor Secretary Details Obama Administration Wage-Hour Agenda at AFL-CIO Convention

Newly appointed Labor Secretary Thomas Perez addressed the 2013 AFL-CIO Convention earlier this week, providing details on the Obama Administration’s legislative and administrative wage-hour agenda for the remainder of the President’s second term. The wage-hour agenda likely will be overseen by the President’s new nominee for Wage and Hour Administrator, Dr. David Weil, a professor at … Continue Reading

Massachusetts Supreme Judicial Court Issues Employee-Friendly Decisions

In two decisions issued this spring, the Supreme Judicial Court of Massachusetts, reversed decisions issued by Massachusetts lower courts and broadly interpreted the scope of Massachusetts wage law with respect to its extra-territorial reach and potential individual liability for violations. Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191 (Mass. 2013); Cook v. Patient Edu, LLC, … Continue Reading

Congress Confirms Perez As Secretary of Labor, Employers Brace for Agenda

After an at times testy and contentious confirmation proceeding, on July 18 the United States Senate confirmed President Obama’s nomination of Thomas Perez as the new Secretary of Labor, replacing the departed Hilda Solis. Some Republican Congressmen had questioned Perez’s conduct in a qui tam action in Minnesota.  Mr. Perez’s Senate confirmation vote was the result … Continue Reading

Reversing District Court, Eleventh Circuit Orders Trial of Cable Installers’ Claims of Misclassification Under FLSA

In a lengthy analysis of the “economic realities” test as applied to cable installers, the Court of Appeals for the Eleventh Circuit reversed Judge Elizabeth A. Kovachevich of the Middle District of Florida’s 2012 decision finding cable installers to be properly classified as independent contractors.  Scantland, et al. v. Jeffry Knight, Inc., et al., 11th Cir. … Continue Reading

New Jersey Federal Court Dismisses Truck Driver Misclassification Claims

Even as the New Jersey legislature contemplates amendments to the law (similar to those enacted in New York) limiting the classification of certain truck drivers as independent contractors, a New Jersey federal judge has granted an industry employer’s motion to dismiss claims that its drivers were misclassified as independent contractors.  Luxama v. Ironbound Express, Inc., … Continue Reading

New York City, State Legislatures Pass Bills

As expected, the New York City Council has overridden Mayor Bloomberg’s veto, making the Earned Sick Time Act law in New York City.  At the state level, the legislature has passed a measure called the Commercial Goods Transportation Fair Play Act.  Like its namesake the Construction Industry Fair Play Act, this measure addresses a specific … Continue Reading

Pennsylvania Federal Court Finds Classification of Couriers as Employees or Independent Contractor To Be Question of Fact

In a short order following oral argument, Judge Juan R. Sanchez of the Eastern District of Pennsylvania denied an FLSA defendant’s motion for summary judgment seeking a ruling that it properly classified its delivery couriers as independent contractors under the FLSA.  Spellman, et al. v. American Eagle Express, Inc., E.D. Pa., No. 10-cv-1764. In so ruling without … Continue Reading

Texas Federal Court Agrees With Employer: Gate Attendants Are Independent Contractors Within the Meaning of FLSA

The Department of Labor often challenges an employer’s independent contractor classification, even when such classification is a matter of long-standing, industry practice.  Such disagreements can result in DOL audits or even DOL litigation seeking alleged unpaid minimum wage and overtime, as well as private enforcement actions. In a recent victory for employers involving litigation brought by … Continue Reading

Eleventh Circuit Rules Liquidated Damages Discretionary, Not Automatic, in FLSA Retaliation Cases

Addressing a divided body of law, the Court of Appeals for the Eleventh Circuit — where numerous FLSA actions are brought particularly within the state of Florida — has ruled that a Florida district court did not err when it declined to award 100% FLSA liquidated damages to several plaintiffs who prevailed at a jury … Continue Reading

Kansas Supreme Court: Exotic Dancers Employees, Not Independent Contractors

Among the types of service providers who consistently challenge their classification as independent contractors are exotic dancers, who allege that they are employees of the night club or clubs at which they perform. This allegation can give rise to a host of claims relating to wage-and-hour law, including minimum wage, overtime and gratuities-based claims, as well … Continue Reading
LexBlog