By Jane M. Von Bergen
The Philadelphia Inquirer
What do exotic dancers, Sleepy’s mattress delivery men, graduate assistants, FedEx drivers, cleaning contractors, student interns, carpenters and college football players have in common?
They are all struggling, in some legal way, to determine whether they are employees or something else altogether.
Is the exotic dancer actually an independent contractor, running her own tip-generating business and leasing pole space from an adult entertainment bar? Or is she an employee, working assigned hours and wearing (or not wearing) what she is told?
Are Sleepy’s drivers independent contractors who own their trucks and get paid by the delivery, or are they more like employees, because they have to wear a Sleepy’s uniform, follow a Sleepy’s schedule, and allow the company to attach a logo to their trucks?
What about Division I college football players on scholarships? Are Temple University’s players, for example, actually employees at the school?
The National Labor Relations Board’s regional director in Chicago made headlines last month when he determined that Northwestern University’s college football players are not simply students on athletic scholarships. They are, Peter Sung Ohr ruled, employees, and, therefore, entitled to unionize.
Saying that players, under tight control by their coaches, spend more time practicing, training, traveling to away games, and generating revenue for their school than they do hitting the books, Ohr decided that the players were employees.
“It’s tapping into a broader issue of what defines work for an employer and employee,” said Lonnie Golden, a professor of economics and labor at Pennsylvania State University in Abington.
The examples fall into two broad categories.
One, generating an avalanche of lawsuits, focuses on “misclassification”, employees are misclassified as independent contractors.
Companies don’t have to contribute to unemployment or workers’ compensation funds for independent contractors. No overtime either.
Even so, sometimes independent-contract status helps workers, providing flexibility and perhaps a higher hourly rate. In the Sleepy’s case, some drivers registered their businesses with the state.
But it is illegal to call someone an independent contractor when that person is acting like an employee, with the company exercising control over most work activities.
The U.S. Labor Department has said it will crack down on misclassification cases.
There have been cases involving carpenters and cleaning contractors. Nationally, there are more than 20 pending cases involving FedEx drivers.
“There are a couple of different layers,” said Anthony L. Marchetti Jr., a Cherry Hill, N.J., lawyer who represented the Sleepy’s drivers before the New Jersey Supreme Court in March.
“It’s hard to find good work that will support a family,” he said. “Someone who is out of work will do whatever is necessary to get a paycheck. They are willing to waive the protections of the laws.
“The companies have seized on this.”
Former Sleepy’s driver Sam Hargrove, 48, of Willingboro, N.J., listed his business with the state. But, he said, “there was nothing independent about it. It’s about control.”
Misclassification is one category; the other is whether an individual is primarily a student, or primarily an employee.
Besides the latest case involving the football players, other cases in this category have been brought by unpaid student interns and by graduate students who receive scholarships and stipends and must teach undergrad classes.
Case law has gone both ways on the graduate student issue.
But a ruling by the Pennsylvania Labor Relations Board in 2001 determined that Temple’s teaching graduate students were also Temple employees. The students, now numbering close to 800, formed the Temple University Graduate Students Association.
“We’re doing work for the university that is making them money and has nothing to do with what we’re doing as students,” said shop steward Matt Unangst, 28, now pursuing a Ph.D. in history.
Unpaid interns have filed lawsuits claiming their on-the-job tasks do not further their education and simply amount to work without wages.
PBS talk-show host Charlie Rose agreed to pay $110,000 in July 2013 to settle a lawsuit by unpaid interns on his show.
The next step for Northwestern’s administration occurs Wednesday, the deadline for the university to ask NLRB officials in Washington to review the Chicago director’s decision.
“Northwestern believes the decision overlooked or completely ignored much of the critical testimony supporting the university’s position that student-athletes are not employees,” the university said in a statement.
On April 25, Northwestern football players can vote on whether to join the College Athletes Players Association union. The ballots will be impounded until the NLRB in Washington decides whether to consider the case, or until it reaches its decision.
The players’ bid to be unionized is a big deal in employment law, with implications for universities and their athletic programs. But not to Temple’s football players, now in spring workouts.
“I’m not familiar with the whole thing going on in Washington,” said Owls defensive back Alex Wells, 19.
Offensive lineman Kyle Friend, 20, a business major, said he only heard about it after a professor asked for his opinion.
“I don’t think of myself as an employee,” he said.
Their coach, Matt Rhule, said he doesn’t see his players as employees. But, he said, he’s pro-union. “Anything that gives the players a voice, I think that’s a good thing.”