Insights - May/June 2017 - 30

new Department of Labor leadership will act, there still are some
other prominent cases that are being watched closely.
One case challenges an Obama administration Labor
Department determination that people who work for multiple
employers can be organized for the purpose of collective
bargaining.
Another involves classification decisions in California and
other states that also are wending their way through federal
courts, and could eventually land at the Supreme Court, Feary
noted.
Feary cautioned against reading too much into recent
developments in a Swift Transportation case on the federal
level. It was brought by workers claiming misclassification as
independent contractors. While initial developments have been
unfavorable to the company, he said, it's too soon to predict an
outcome because it's "extremely early" in the case.

Intense State Activity
Plewacki and others noted that the current landscape
in trucking worker status cases includes intense efforts to
neutralize the independent contractor model on the state level,
including labor organizing actions by the Teamsters.
"As vigorously as the Teamsters are trying to assert
themselves, I don't see them gaining much traction on the
organizing side," he said. He also believes there aren't any major
cases in the offing on the scale of FedEx's Ground unit, where
one case was settled for $228 million.
Worker status cases will continue to be very active on the
state level, particularly in California, though other states such
as New Jersey, Illinois and Massachusetts also are hotspots,
experts said.
State rulings in classification cases will continue to favor
employee status in these states because legislators and
regulators there lean toward Democrats, and states have the
power to make and enforce their own laws and regulations,
experts said, unless current congressional Republicans' efforts to
change the law succeed.
Notable worker status cases typically are structured by
plaintiffs' attorneys to seek and become class action cases since
that status can create bigger payoffs for lawyers, the attorneys
said.
One important fact is that workers must be certified as a
class for a case to proceed, Hunt said. The case effectively goes
away unless the class is certified because there isn't adequate
financial reward for the plaintiffs' attorneys.

"Proposed legislation that industry
organizations are pressing hard for
passage in Congress very soon will
be the impetus that starts tipping the
scale toward a more favorable industry
environment as it relates to worker
classification."
- Rich Plewacki, attorney at Benesch, Friedlander,
Coplan & Aronoff

Hunt also said some cases are so flimsy that a single
individual has attempted to bring a class action case.

Actual Parties Left Out
"Too often, both parties get left out of the equation," Feary
said. "Workers and employers want that contractor relationship,
but plaintiffs' lawyers and the government seize on what they
need to collect the money and further their agendas."
Plewacki urged transport businesses to "remain vigilant" in
worker classification and leasing relationships by managing their
businesses on an arms-length basis with all contractors.
"In actual practice, the contract has to reflect the conduct
of the business, and the conduct has to reflect the contract," he
emphasized. "Both have to reflect and live by that vendor- vendee
relationship."
Hunt agreed that it's very important for companies to be
very careful in structuring agreements, including lease-purchase
contracts with drivers.
Broader dangers in the states, Hunt said, are very aggressive
actions in unemployment and workers compensation cases, as
well as wage and hour disputes.
Feary also believes that Teamster organizing efforts affect
state legislatures, encouraging representatives to advance prolabor policies.
Efforts to preserve independent contractor status on the
state level include a California Trucking Association suit against
the state's labor regulatory agency. IANA has provided financial
support for that litigation.

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30 Intermodal Insights | May/June 2017

Table of Contents for the Digital Edition of Insights - May/June 2017