Archives: Independent Contractors

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California Court of Appeal Applies Dynamex Retroactively

Photo of Joseph S. PersoffBy Joseph S. Persoff on Posted in Independent Contractors
This week, a California Court of Appeal concluded in a class action case that the California Supreme Court’s Dynamex decision applies retroactively. In another case, Vazquez v. Jan-Pro Franchising International, the Ninth Circuit Court of Appeals previously found the Dynamex decision applies retroactively, but subsequently withdrew that opinion and certified the question to the California … Continue Reading

Third Circuit Affirms $4.5 Million Verdict in Favor of Exotic Dancers

Photo of Greg MersolBy Greg Mersol on Posted in Independent Contractors
A significant amount of wage and hour class/collective jurisprudence has developed around the issue of whether exotic dancers are employees or independent contractors. We’ve blogged many of these issues in the past [June 6, 2019, August 27, 2018, January 27, 2017, December 3, 2014, November 21, 2012, April 8, 2011]. There are many other cases … Continue Reading

New Prime Decision Adds Uncertainty to Arbitration in the Transportation Industry

Photo of John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
The U.S. Supreme Court’s decision in New Prime v. Oliveira, No. 17-340 (Jan. 15, 2019), has added uncertainty to arbitration agreements in the transportation industry by holding that the Federal Arbitration Act (FAA) § 1 exception covers both employees and independent contractors of a trucking company. In a unanimous opinion written by Justice Neil Gorsuch, … Continue Reading

California Off-the-Clock Case Involving Independent Contractors Crumbles

Photo of Greg MersolBy Greg Mersol on Posted in Independent Contractors, Off-the-clock, Rule 23
Extensive expert report still fails to establish fairness and manageability for trial. A growing number of courts are questioning classwide proof in off-the-clock cases, and those examining expert testimony in such matters are increasingly coming to the conclusion that they cannot be fairly managed for trial. We’ve blogged this issue several times (see, for example, … Continue Reading

Professional Cheerleader Case Presents Independent Contractor and Joint Employer Lessons

Photo of Greg MersolBy Greg Mersol on Posted in Independent Contractors
Unlike, say, mortgage loan officers or computer programmers, the population of professional cheerleaders is relatively small, but an ongoing case involving independent contractor and joint employer issues for one such group presents lessons for many others. The Buffalo Jills were the cheerleading squad at Buffalo Bills professional NFL games. For almost 30 years, they performed services at games … Continue Reading

Independent Contractor Trucker Dodges FAA Arbitration and Keeps His Class Action Alive

Photo of John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
In Oliveira v. New Prime, Inc., No. 15-2364 (May 12, 2017), the U.S. Court of Appeals for the First Circuit confronted two arbitration-related questions of first impression in that Circuit.  In the case, Dominic Oliveira had signed an Independent Contractor Operating Agreement with New Prime, Inc., which contained an arbitration provision governed by the Commercial … Continue Reading

The Next Chapter – Uber Responds to District Court Order With a New Arbitration Agreement

Photo of John LewisBy John Lewis on Posted in Class Certification, Independent Contractors, PAGA
Not only did Uber respond to the district court’s December 9, 2015, ruling (discussed in our December 11 blog) with an immediate notice of appeal, but on December 11 it rolled out a new arbitration agreement for its drivers. This maneuver has garnered considerable media attention and prompted the plaintiffs to file an emergency motion … Continue Reading

District Judge Rules Uber’s Arbitration Agreements Unenforceable on Public Policy Grounds

Photo of John LewisBy John Lewis on Posted in Class Certification, Independent Contractors, PAGA
On September 2, we addressed the much-publicized O’Connor v. Uber Technologies, Inc. case (No. 13-cv-03826-EMC) pending before the U.S. District Court for the Northern District of California. In O’Connor, a group of 160,000 current and former drivers contend that they were Uber’s employees rather than independent contractors and hence entitled to protections provided by the … Continue Reading

Justices Take On Another California Rule – When an Arbitration Agreement Is Too Flawed to Enforce

Photo of John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
The U.S. Supreme Court has agreed to review whether the Federal Arbitration Act (FAA) preempts a California state court rule on unconscionable provisions that is purportedly applied more stringently to arbitration agreements than to other contracts. Under the California rule, arbitration agreements with more than one unconscionable provision may not be enforced despite an express … Continue Reading

Northern District of California Certifies Part of a Class Against Uber

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Independent Contractors
Much is being reported in the media about the decision of the United States District Court for the Northern District of California certifying a class of drivers for the Uber ride service who contended that they were employees, not independent contractors.  O’Connor v. Uber Technologies, Inc., Case No. C-13-3826 EMC (September 1, 2015). The case … Continue Reading

DOL Memo Provides Script for FLSA Collective Actions Alleging Independent Contractor Misclassification

Photo of Todd LebowitzBy Todd Lebowitz on Posted in FLSA, Independent Contractors
The all-time best The Far Side cartoon (based on an unscientific survey, sample size of me) is the one with two deer standing in the forest, one with a red circular target imprinted on its chest. The other deer says, “Bummer of a birthmark, Hal.” Poor Hal. Blessed with the ability to walk upright, but … Continue Reading

Washington Federal Court Decertifies Class of Insurance Agents Alleging Entitlement to Overtime

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Class Action Fairness Act, Independent Contractors
Challenging the classification of workers as independent contractors continues to be a growing area of focus for plaintiffs’ attorneys. However, as a recent federal case from Washington demonstrates, the fact-intensive inquiry that is the hallmark of the independent contractor inquiry is not compatible with classwide resolution – particular post-Dukes. In Rodney v. Bankers Life and Casualty … Continue Reading

Two California Juries to Decide Whether Uber and Lyft Drivers Are Employees or Contractors

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractors
The core business models of both Uber and Lyft have just been turned over to two separate California juries. These groups of randomly selected citizens will determine whether the drivers for both companies have been properly classified as independent contractors, or whether both companies owe potentially millions of dollars in fines and penalties for having failed … Continue Reading

Nevada Supreme Court Finds Class of Strippers Were Employees

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Independent Contractors, Wage and Hour
Given the extensive use of euphemisms in the exotic dancing trade, we’ll apologize in advance for any unintended puns. We’ve written on the issue of the classification of exotic dancers or strippers in the past [April 8, 2011, October 19, 2011, November 21, 2012], but the question continues to ripple through the courts.  While the … Continue Reading

Conservative Kansas Joins the Liberal Ninth Circuit in Rejecting the Independent Contractor Classification of Delivery Drivers

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractors
Last month we blogged about two Ninth Circuit opinions that deemed FedEx Ground drivers to be employees rather than independent contractors under California and Oregon law.  Last week the Kansas Supreme Court joined them, applying Kansas law to reach the same conclusion in Craig v. FedEx Ground System, Inc. (Oct 3, 2014). While the Ninth … Continue Reading

Merits Trump Certification Issues in Two Southern District of New York Cases

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Independent Contractors, Overtime Claims
Three years ago, the Supreme Court found in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011) that courts “frequently” will need to look to the merits in determining whether certification is appropriate, particularly where the issues of the merits and certification may overlap.  Despite this pronouncement, plaintiffs often assert that courts should … Continue Reading

U.S. Open Umpires and Linesmen Are Independent Contractors, Court Rules

Photo of Todd LebowitzBy Todd Lebowitz on Posted in FLSA, Independent Contractors, Overtime Claims
In an opinion that disappointingly failed to take advantage of countless pun opportunities, a federal judge in New York otherwise got it right, ruling that the United States Tennis Association properly classified U.S. Open tennis officials as independent contractors, not employees.  Meyer v. United States Tennis Ass’n, No. 1:11-cv-6268 (S.D.N.Y. Sep. 11, 2014). The lawsuit, … Continue Reading

Arizona District Court Rejects Joint Employer Arguments in Independent Contractor Case Alleging Misclassification of Truck Drivers

Photo of Greg MersolBy Greg Mersol on Posted in Independent Contractors
A month ago we discussed the Ninth Circuit’s decision in Ruiz v. Affinity Logistics Corp., Case No. 12-56589 (9th Cir. June 16, 2014), in which the employer treated its delivery drivers as employees in everything but name, resulting in the unsurprising finding that they were employees and not independent contractors.  An Arizona district court has … Continue Reading

California Supreme Court Eases Path Toward Class Certification of Independent Contractor Misclassification Claims

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Class Certification, Independent Contractors
Managing independent contractor relationships requires a delicate balance, perhaps best described (unknowingly, of course) by the band .38 Special in the song “Hold On Loosely”: Just hold on loosely But don’t let go If you cling too tightly You’re gonna lose control Maintaining too much control causes the loss of control.  And so it goes … Continue Reading

California Court Proves That They’ll Print Anything These Days With Denial of Decertification in Newspaper Carrier Case

Photo of Jeffrey VlasekBy Jeffrey Vlasek on Posted in Independent Contractors, Overtime Claims, Wage and Hour
When James Bond brandishes his Walther PPK and walks into a printing plant, you know one thing is certain – you will be “treated” to at least a half-dozen newspaper puns.  And, since this article is about a recent California case involving newspaper carriers, it will, of course, be no different. Ever since Wal-Mart Stores, … Continue Reading

California Court Affirms Summary Judgment Against Putative Class of Insurance Agents

Photo of Greg MersolBy Greg Mersol on Posted in Independent Contractors, Wage and Hour
Court Finds That Insurance Agents Were Independent Contractors As A Matter Of Law As we have noted in prior blogs, litigation involving alleged independent contractor status is on the rise, and is increasingly the topic of class action claims. Plaintiffs in these cases tend to argue that they were misclassified as independent contractors and were … Continue Reading
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