The New Jersey DOL is very aggressive on the issue of independent contractor status, i.e. the issue of misclassification. The latest, perhaps best (or worst) illustration of this view is the agency’s determination that court reporters are employees for purposes of the Unemployment Law. This errant decision, which cuts against traditional modes of thinking on
independent contractor
New Jersey Wage Deduction Class Action Revived by Appellate Division: More Independent Contractor Fallout
When employers classify individuals as independent contractors, they are not obligated to provide them with certain benefits, as they would statutory employees. Sometimes, if those individuals are found to not be independent contractors, those “failures” come back oftentimes to haunt the employers. Another example of this phenomenon has happened in that a New Jersey appellate…
Referees Settle Independent Contractor FLSA Action: No “Penalty” for Either Side
By Mark Tabakman on
The issue of whether athletic referees are independent contractors has surfaced a few times in the last few years. Here, in Pennsylvania, the Pennsylvania Interscholastic Athletic Association (the PIAA) that engages these referees has agreed to settle with a group of these individuals for $260,000 to close out a FLSA action, based on misclassification. The…
The New Jersey Unemployment Law’s ABC Test: Alphabet Soup Tough for Employers to Swallow (or Beat)
By Mark Tabakman on
Posted in Independent Contractor
The test for independent contractor is often a tough one to meet. Especially in New Jersey which has (as do many other States), the famous (or infamous) A-B-C test. The courts also support this test as is again evidenced by the NJ Supreme Court’s refusal to take a case challenging a ruling under that test. …
USDOL Opinion Letter Takes Expansive View Of Independent Contractor Status
By Mark Tabakman on
Posted in Independent Contractor
The issue of independent contractor is in the forefront of today’s legal scene, on numerous fronts. There is also an issue with changing technology and its impact on these thorny issues. Now, the USDOL has issued an Opinion Letter addressing this issue as concerns the so-called gig economy. The Opinion Letter focuses on individuals who…
Settling With (Only) the Named Plaintiff in Collective Actions: The Way To Go!
By Mark Tabakman on
Posted in Class Actions, Overtime Issues
I often preach that, when dealing with a class action, the employer should try to pick off the named plaintiff, perhaps overpaying to do so (or maybe not). In this interesting case, the parties settled (i.e. with the named plaintiff) right after the class had been decertified. The plaintiff had argued that he was misclassified…
The Unemployment “ABC” Test for Independent Contractor Status: A Mount Everest for Unwary Employers
By Mark Tabakman on
Posted in Independent Contractor, Working Time
There is a tripartite test for independent contractor under the New Jersey Unemployment Compensation statute (and many other States), the so-called “ABC” test. Under this test, services performed by an individual for remuneration shall be deemed to be employment unless it is shown to the satisfaction of the Department of Labor that: (a) Such individual…
Preemption Defense in FLSA Class Actions: Magic Bullet? Maybe/Maybe Not
By Mark Tabakman on
Posted in Class Actions
When hit with a wage hour suit, class action or single, employers are well advised to look for a preemption argument, whether from a union contract (e.g. National Labor Relations Act) or a statutory construct. If the preemption argument is successful, the entire suit goes away. Therefore, such an argument can become the proverbial “magic…