Recently, state and federal authorities have been cracking down on companies that misclassify workers as independent contractors when they are truly employees. Connecticut has a very strict rule on this topic – one of the strictest in the country. It requires that an employer prove all three elements of the ABC test rather than just show in a more generalized way that the workers are independent.
The ABC requires employers to show (A) that they don’t exercise significant control over the work or even retain the right to control how they do their jobs, (B) that the work they do is outside the normal course of the employer’s business or away from their locations and (C) that the workers are independently established in a trade, profession or occupation. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690 (1995). Because this test is conjunctive, many employers have defeating claims that the worker was misclassified.
The next question that arises is: so what? What does an employee do if he or she was misclassified and if a lawsuit is successful, what is the remedy? Two lawsuits recently filed in Connecticut may answer these questions.
In Bokanoski v. Lepage Bakeries Park St. LLC, et al and Taveras v. XPO Last Mile, Inc., delivery drivers have filed class action lawsuits alleging misclassification as independent contractors and claim damages. While some lawsuits can claim unpaid overtime wages, if the truck the delivery driver uses weighs more than 10,000 pounds, the state and federal overtime laws don’t apply. So what is left?
In these cases, the drivers claim unlawful and unauthorized deductions from their pay. Companies frequently try to pass along the costs of insurance, including workers’ compensation and other forms of insurance, to the workers. They also sometimes have them pay for upkeep and maintenance of the vehicles. These are not charges that are typically passed on to true employees, so when there is a misclassification, these charges can be claimed as a remedy.
In Connecticut, we have a statute that prohibits the unauthorized withholding of any part of an employee’s wage. C.G.S. Section 31-71e says: “No employer may withhold or divert any portion of an employee’s wages unless … the employer has written authorization from the employee for deductions on a form approved by the commissioner,…” In these cases, the deductions are claimed to be over $400 per week in some instances. No court has yet ruled that this theory of recovery is permitted. These cases may set precedent in this area of the law. They are worth watching as these issues make their way through the courts.