A lawsuit filed against NFI back in 2015 over issues of driver classification – a case that has still not been resolved roughly five years later – is going to mediation…again.
And that’s not actually unusual, according to two attorneys for the plaintiffs.
The case, on behalf of a group of plaintiffs who were NFI drivers, was first filed back in 2015. A long list of all the documents filed in the case – a list that goes on for more than 160 entries – shows that the case’s meandering path through federal district court in New Jersey was stopped at other times in the past because the parties entered mediation. But those efforts never produced a settlement.
“We have a lot of these independent contractor cases, and this is just typical of many other cases,” Harold Lichten of the Boston-based law firm Lichten & Liss-Riordan said of the NFI litigation. “They all last this long.”
Lichten said his company is handling probably about 30 cases at present involving driver classification.
In a filing last week, attorneys for both the drivers and NFI jointly requested a stay in the case “to facilitate potential resolution. The parties have agreed to mediate on June 2, 2020.” The case has included an effort to move its jurisdiction into state court in New Jersey (unsuccessful, though the case was filed there originally because that’s where NFI is headquartered) and an effort to make it a class action (also unsuccessful so far). There are eight individual drivers who are plaintiffs in the case though they and their attorneys continue to seek class status.
According to the suit filed by the drivers in mid-2015, the issue is work that they performed for NFI, hauling groceries from an NFI facility to Trader Joe’s stores in Connecticut, Massachusetts, New Jersey, New York and Rhode Island.
The drivers used their own trucks rather than NFI vehicles. The trucks were leased to NFI and carried an NFI logo on the tractor and trailer.
“Plaintiffs were entirely dependent upon NFI for their business, as they were not permitted to perform delivery services for any other company during their time working for (NFL, a subsidiary of NFI),” according to one of the many documents in the case, describing the plaintiffs’ basis for the suit.
The drivers were paid per mile along with fuel surcharges. “Plaintiffs could not negotiate the price paid per mile or the price paid for fuel surcharges,” the drivers’ lawsuit contends. The suit also charges that they were paid for a number of miles per trip that were set by the company regardless of actual miles driven, were not compensated for bringing returns back from the Trader Joe’s stores to the warehouse in Nazareth, Pennsylvania, and were given a long list of other requirements for which there was no compensation.
And then the suit gets to the heart of the matter in so many employee classification lawsuits involving independent contractors and the companies that employ them – “the nature of the services that Plaintiffs and Class Members performed, and the manner in which they performed these services, made it clear that they were actually employees. NFI was in complete control of the manner in which Plaintiffs and Class Members and others performed their services.”
Lichten, joined on the call with FreightWaves by Sarah Schalan-Bergen of the Philadelphia law firm of Berger Montague, said most of the cases they pursue on driver classification involve drivers who do work on behalf of just one company. “The people we represent work for these companies day in and day out, usually doing a specific route,” Schalan-Bergen said. “Our position is this whole industry has misclassified these individuals. They say they are independent contractors when they are really employees and this is a big issue in the law.”
Although the NFI case is in federal court, state laws on independent contractor classification such as those in Massachusetts or New Jersey will be used to determine the outcome, they said.
Asked whether the NFI case was any more significant than others, Lichten joked that it is more notable only because “you see them driving up and down the highway.”
Both attorneys said employee classification suits are a major part of their respective firms’ activities.