October 2013 Monthly Independent Contractor Compliance and Misclassification Update

October 2013

In the Courts

  • A Florida federal district court denies a cable contracting company’s motion to decertify a conditionally certified class of cable technicians who brought a class action lawsuit against Broadband Interactive alleging that they were misclassified as independent contractors and denied minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). In denying the decertification motion, the Court found that the technicians were sufficiently similarly situated so that the FLSA claims could be tried fairly as a collective action. The Court also denied the parties’ cross-motions for summary judgment on the issue of independent contractor or employee status, concluding that genuine issues of material fact existed. Bobbitt and Butler v. Broadband Interactive, Inc., No. 8:11-cv-2855-T-24 (M.D. Fla. Oct. 21, 2013).
  • Three new complaints were filed in Georgia and Michigan federal district courts by exotic dancers seeking collective action status against adult night clubs. Following a trend seen over the past few years in lawsuits filed by dancers against businesses in this industry, the complaints allege, among other things, failure to pay overtime and minimum wages under the Fair Labor Standards Act and state minimum wage laws by misclassifying the dancers as independent contractors. The lawsuits allege that the club owners exerted direction and control over the dancers by establishing the dancers’ work schedules, requiring them to follow written guidelines and policies, requiring the dancers to perform in a specified manner on stage and for customers, regulating the dancers’ interactions with customers, setting the prices dancers were allowed to charge, requiring attendance at meetings, and financing advertising and marketing efforts undertaken on behalf of the clubs. The complaints also allege that the dancers must pay a “bar fee” or “house fee” to work any shift, were required to split their tips with others, suffered the imposition of financial penalties if they were late or failed to appear for a shift or violated any rules, and did not receive any wages, only gratuities – often forcing them to earn less than minimum wage. Berry and Newby v. Great American Dream, Inc. d/b/a Pin Ups, No. 1:13-cv-03297 (N.D. Ga. Oct. 3, 2013); Herman v. Foxy Lady, No. 1:13-cv-3517 (N.D. Ga. Oct. 24, 2013); Jane Does 1-3 v. The Coliseum, Inc. (E.D. Mich. Oct. 25, 2013).

Publishers’ note:  Ordinarily, there are many more court cases, legislative initiatives, regulatory actions, and other newsworthy activities each month.  Last month, there were 11 entries in the monthly update.  A slower month of IC compliance and misclassification news has often resulted in a deluge of matters the following month.

Published by Richard Reibstein, Lisa Petkun, and Andrew Rudolph.  Compiled by Janet Barsky.

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