Delivery drivers urge New Jersey Supreme Court to adopt classification test

By Clarissa Hawes, Land Line staff writer | Friday, March 21, 2014

The delivery drivers who went to work for a New York-based mattress and furniture company wanted to be independent contractors. They wanted to make their own financial decisions and pick their routes. But soon after starting, they quickly discovered that little in their day was under their control.

Now those drivers say if they are to be treated like employees, they want the benefits.

The drivers originally filed a class action complaint back in 2010, claiming the mattress company controlled nearly every aspect of the drivers’ workday, while classifying them as independent contractors. According to court documents, the drivers sought to have their contracts revised “declaring that the drivers are, in fact, employees of Sleepy’s and are therefore entitled to all wages, payments and benefits to which other Sleepy’s employees are entitled.” 

In a preliminary hearing, an attorney representing them urged the New Jersey Supreme Court on Monday, March 17, to rule on a test standard that would determine a driver’s employment classification.

New Jersey Attorney Anthony Marchetti Jr. is pushing for a hybrid test that would settle the argument.

Marchetti, who represents the drivers who worked for Sleepy’s LLC, comes from a long line of truck drivers. Both of his grandfathers were truck drivers, and so was his dad, as well as uncles on both sides of his family.

In his argument before the high court, Marchetti said they are pushing for two tests that both use the same factors to determine employment status. The two tests include the “ABC test” used by the U.S. Department of Labor to determine employment status, as well as the D’Annunzio test.

“The Department of Labor test creates the presumption of employment status for somebody unless the company or the person trying to show they are not an employee can prove that there is no control, that the company does work that is outside the ordinary course of the alleged employer’s business,” Marchetti said. “They must also show that the so-called contractor truly has an independent business that could survive termination from the alleged employer.”

The D’Annunzio test is based on a New Jersey Supreme Court case, D’Annunzio v. Prudential Insurance Company of America. They found that a person classified as an independent contractor actually qualified as an employee because the company he was contracted to (Prudential) had extensive control over his work schedule and interfered with his own private practice.

The class action complaint was originally filed in U.S District Court in New Jersey back in 2010. Drivers claimed they “worked fulltime for Sleepy’s, are required to wear Sleepy’s uniforms, to adhere to Sleepy’s grooming standards, and to display Sleepy’s advertising on their vehicle upon Sleepy’s request.”

Drivers claim they were required to keep Sleepy’s scanners and a GPS with them at all times, as well as pass a background check from a specific company Sleepy’s contracted with before they could deliver for the mattress company.

In 2012, the court sided with Sleepy’s on the issue of employment status that the drivers were independent contractors by applying a 12-point “right-to-control test” established by the United States Supreme Court in Nationwide Mutual Insurance Co. v. Darden.

In its decision, the court found that Sleepy’s monitoring of delivery progress each day with electronic equipment, as well as required background checks on all deliveries, were requirements “to assure customer satisfaction and safety in a competitive business.”

Sam Hargrove, Andre Hall and Marco Eusebio, who are named plaintiffs in the class action complaint against Sleepy’s, then filed an appeal with the U.S. Court of Appeals for the Third Circuit. In July 2013, the Third Circuit kicked the test standard question up to the New Jersey Supreme Court

“Everyone who signs up to be a contractor does so for one of two reasons: Either they want to fulfill the American dream to be their own boss and attempt to build something for themselves and their family, or they are looking for work in a tough market,” Marchetti said. “The problem is where companies use this dream as a way to turn these workers into servants who are indentured to their leases or truck payments.”

Marchetti said he has worked on misclassification cases since 2005, when the firm he worked for represented a class of drivers for FedEx Ground. 

He said companies have found a way to finance their existence and their profits on the backs of drivers, who buy or lease a truck, sign a contract, but then unknowingly “sign away their rights to all of those worker protections.”

“The drivers have no protection, no rights under the contract or law and no real recourse,” he said. “Essentially the cases stand for one proposition. You cannot just put the contractor label on someone in order to avoid worker protection laws.”

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