in Newswire Published on May 8, 2017

Delivery Worker Hits Sears, HomeDeliveryLink with Misclassification Lawsuit

Last Updated on May 8, 2018

Kloppel v. Sears Roebuck & Company et al

Filed: May 8, 2017 ◆§ 1:17-cv-00389

Sears Holding Corporation, Sears, Roebuck & Company, and HomeDeliveryLink, Inc. (HDL) are on the receiving end of a proposed class action filed by a former home

Defendant(s)

Sears HomeDeliveryLink

Law(s)

State(s)

New York

Categories

Wage and Hour

Sears Holding Corporation, Sears, Roebuck & Company, and HomeDeliveryLink, Inc. (HDL) are on the receiving end of a proposed class action filed by a former home delivery driver who alleges the companies improperly classified him and similarly situated workers as independent contractors even though the defendants’ level of control over the individuals’ work indicates a clear employer-employee relationship.

According to the complaint, Sears contracts with HDL and other intermediary companies to carry out its home deliveries. In the lawsuit, the plaintiff runs down certain aspects of proposed class members’ work days, things over which the drivers say they had no control, in defense of his allegations of intentional employee misclassification, such as:

Drivers were required to report at a Sears-operated facility at 6:30 a.m. six days per week, at which time they were provided with a manifest of the day’s deliveries
Proposed class members were required to attend five- to 30-minute morning meetings to receive instructions on “aspects of deliveries,” such as how to assemble merchandise and interact with customers
Proposed class members were required to make deliveries in the order in which they appeared on daily manifests provided to them by the defendants in two-hour time windows
Drivers were required by the defendants to wear identical uniforms
Drivers were not permitted by the defendants to use helpers for deliveries “unless those helpers have passed background checks” conducted by an agent of the defendants

Not only does the plaintiff allege he and other drivers had almost every part of their work lives dictated by the defendants, the man claims HDL “kept track of [proposed class members’] performance through customer ratings,” which the company then posted. If a driver’s rating dropped below a certain level, the worker would be suspended, the lawsuit claims. Perhaps the most important allegation, however, involves what the defendants allegedly deduct from drivers’ pay:

“HDL deducts certain expenses directly from the compensation it pays, including when HDL determines, in its sole discretion, that a delivery has been made in a manner it deems unsatisfactory (e.g., damaged goods, damage to customer property). HDL will deduct the cost of such damage from paychecks,” the lawsuit claims, adding that other expenses, including truck rental, fuel and insurance liability costs, were also taken from workers’ compensation.

“[The defendants] unlawfully received kick-backs from [the plaintiff], as well as the other New York drivers, and made a statement or representation that failure to provide these kick-backs would result in termination,” the plaintiff alleges.

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