Practice Area: Employment Law & Unpaid Wages

Case Status: Under Investigation

Berger Montague is investigating a potential class action lawsuit on behalf of truck and delivery drivers who believe they have been misclassified as independent contractors by their employers.

Why would my employer misclassify me as an independent contractor?

There are two possibilities. The company could be trying to save money-businesses that hire independent contractors instead of employees don’t have to pay unemployment taxes, the minimum wage, overtime pay, or workers’ compensation insurance. The other possibility is that the company is confused by the federal and state labor laws that govern the distinction between employees and independent contractors.

How do I know if I should be classified as an independent contractor or employee?

According to the Department of Labor (DOL), if you’re in business for yourself, you’re an independent contractor. If you’re economically dependent on the company, you’re an employee. The DOL identifies six factors that determine whether a worker is economically dependent on the company they’re working for:

  1. The extent to which the work performed is an integral part of the employer’s business: If the work performed by a worker is integral to the employer’s business, it is more likely that the worker is economically dependent on the employer and is therefore an employee.
  2. Whether the worker’s managerial skills affect their opportunity for profit and loss: If the worker’s managerial skills do affect their opportunity for profit and loss, it is less likely that the worker is economically dependent on the employer and is therefore an independent contractor.
  3. The relative investments in facilities and equipment by the worker and the employer: The worker must make some investment compared to the employer’s investment in order for there to be an indication that they are an independent contractor.
  4. The worker’s skill and initiative: The worker’s skills should demonstrate that they exercise independent business judgment in order to suggest they are an independent contractor.
  5. The permanency of the worker’s relationship with the employer: Permanency or indefiniteness in the worker’s relationship with the employer suggests that the worker is an employee, as opposed to an independent contractor.
  6. The nature and degree of control by the employer: An independent contractor generally works free from control by the employer. Analysis of this factor includes who sets pay amounts and work hours, who determines how the work is performed, and whether the worker is free to work for others and hire helpers.

The level of control a worker has is especially relevant to truck and delivery drivers. In previous class action lawsuits that were filed, truck and delivery drivers claimed that the companies they worked for had significant control in that they:

  • Assigned routes to their drivers
  • Required their drivers to check in at certain times throughout the day
  • Required drivers to lease or purchase specific vehicles through the company
  • Regulated their drivers’ appearance (e.g. uniform, shaving requirements)
  • Controlled their drivers’ schedules
  • Had the ability to deny requests for time off
  • Controlled equipment (trucks, tools, cell phones, etc.)
  • Required drivers to attend mandatory meetings
  • Engaged in constant supervision of their drivers’ job performance and location
  • Required drivers to report to work at certain times
  • Didn’t allow drivers to use their trucks for any other carrier or purpose
  • Required drug and alcohol monitoring for their drivers

The less control a worker has, the more likely it is that they are an employee, not an independent contractor.

Have truck and delivery driver independent contractor lawsuits been successful in the past?

Yes. In November 2015, a New York appeals court upheld a decision that a Utah-based trucking company called C.R. England’s independent contractors were effectively employees, ruling that the company must pay additional unemployment insurance contributions on the truckers’ earnings.

In June 2016, FedEx paid $240 million to settle class actions by delivery drivers in 20 states who said they were misclassified as independent contractors and shorted on wages.

In July 2016, port trucking company group QTS paid $5 million to settle a class action lawsuit brought by nearly 400 Southern California port truck drivers who claimed they had been misclassified as independent contractors and shorted on wages and benefits.

If you are a truck or delivery driver and believe you may be misclassified as an independent contractor, contact Berger Montague. You may be able to start a class action lawsuit on behalf of yourself and other drivers at your company to recover your unpaid wages.

Do I have to pay to consult with an attorney?

We are happy to talk with you about your potential claims free of charge. If we decide to represent you in a lawsuit, we will enter into a written contingent fee agreement with you. A contingent fee agreement means we only get paid if we win, and that we will receive our fees from the amount paid by the Defendant in the case.

Please contact us to discuss the details of your case. You may:

  1. Use the contact form on this page.
  2. Email [email protected]
  3. Call 800-419-6044
schedule a free consultation

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