Employer reliance on independent contractors has continued to attract the time and attention of courts, regulators and litigants. Notably, the New York Joint Enforcement Task Force on Employee Misclassification recently issued its Annual Report stating that the New York Department of Labor found 133,000 workers were misclassified as independent contractors in 2014. See NYS Dep't of Labor, Annual Report of the Joint Enforcement Task Force on Employee Misclassification (Feb. 1, 2015).

As this month also marks the one-year anniversary of the New York Commercial Goods Transportation Industry Fair Play Act, we thought it would be a good time to review the requirements of that law. The column also discusses other developments regarding independent contractors over the course of the last year, including the National Labor Relations Board's (NLRB) new test for independent contractor misclassification, and notable rulings by New Jersey and California courts.

Delivery Drivers

In the fall of 2014, the NLRB revisited its standard for classifying workers as independent contractors not protected under the NLRA in FedEx Home Delivery, 361 NLRB No 55 (2014). In this 3-1 decision (member Philip Miscimarra recused himself), the board held a group of FedEx home delivery drivers classified as independent contractors were covered employees.

FedEx refused to recognize or bargain with the Teamsters local union claiming to represent a group of Connecticut drivers, contending the drivers were independent contractors. In finding the workers were employees, the board stated its decision was guided by the non-exhaustive list of common law factors acknowledged by the U.S. Supreme Court and outlined in the Restatement (Second) of Agency §220 (1958), with no one factor being determinative. These include, among others, extent of control by the employer; whether the employer supplies the instrumentalities, tools and the place of work; length of employment; and whether the work is part of the regular business of the employer.