Is a worker an employee or an independent contractor? This is a familiar question among workers nationwide. When there is a misclassification of workers as independent contractors, an individual may be missing out on benefits and protections to which they could be entitled as an employee.
Recently, Grubhub delivery drivers from across the country filed a class action lawsuit alleging that the company misclassified them as independent contractors instead of employees. This is similar to a lawsuit faced by Uber, a taxi service that matches drivers and riders through an online application, wherein the drivers alleged that they too were employees and entitled to employee rights and benefits.
Grubhub is a food delivery service that allows customers to order prepared food from restaurants and track food delivery through an online application. Customers pay with a credit card through the Grubhub online application, and they can order from restaurants that do not offer their own online ordering and delivery service. The drivers pick up the food from the restaurant and deliver it to the customer.
Grubhub delivery drivers argue that they are employees since the company assigned them specific delivery routes, mandatory uniforms, and the company required that they work scheduled delivery shifts. If the workers are successful, Grubhub could be held liable under the federal Fair Labor Standards Act (FLSA) for wage and hour violations and violations of state law as well. Grubhub workers could be entitled to minimum wages and overtime. Currently, Grubhub refers to its delivery workers as “delivery partners” and classifies them as independent contractors instead of employees who could be entitled to certain benefits and rights.
The ABC Test in New Jersey
In New Jersey, the “ABC Test” has traditionally been used to determine whether an employee is eligible for unemployment compensation. The New Jersey Supreme Court has created a standard that is quite high for employers to meet and found that the worker is an employee of the company in the unemployment context unless the employer can show that:
- A) The worker is not controlled while he or she is performing the service.
- B) The worker’s service is not within the usual course or place of business where the service is usually performed.
- C) The worker is usually working in an independent trade or business.
Grubhub operates in 1,000 cities in the U.S., according to its website. Grubhub is part of a new movement, like Uber, whereby technology and employment intersect and where expectations of workers are rapidly changing. It is not surprising that lawsuits crop up where technology and innovation may be changing faster than employment laws. Courts are left to decide whether workers’ new situations should be classified as employment relationships. Employers must stay apprised of the changing employment marketplace and court decisions throughout the country to protect workers’ rights.
Cherry Hill Employment Lawyers at McOmber McOmber & Luber, P.C. Represent Misclassified Workers
If you or someone you know believes that they are an employee of a company that misclassifies them as an independent contractor, seek the counsel of the experienced Cherry Hill employment lawyers at McOmber McOmber & Luber, P.C. Contact our offices in Marlton, New Jersey at 856-985-9800 or Red Bank, New Jersey at 732-842-6500 where we serve clients throughout the state. You can also call us toll free at 888-396-0736 or contact us online.