HBO show puts a choke hold on independent contractor misclassification

Believe it or not, truckers and WWE wrestlers share something in common, and it’s job related. Many of them are getting screwed by being labeled as independent contractors rather than employees.

During a segment of HBO’s “Last Week Tonight with John Oliver,” host and comedian John Oliver dedicated more than 20 minutes to breaking down how terribly some WWE wrestlers are being treated by the company and its CEO, Vince McMahon. Essentially, the segment was an argument that is all too familiar within the trucking industry: independent contractor versus employee status.

In recent times, many WWE performers have died prematurely and at a higher rate than many industries. Bret “The Hitman” Hart was left with nothing after his contract came to an end. Hart’s brother, Owen, died at the age of 34 during a show in Kansas City.

Jake “The Snake” Roberts is now 63 years old. Despite being a very well-known former wrestler, Roberts could not afford medical bills stemming from a shoulder surgery. He had to resort to crowdfunding to earn the cash.

Like so many others, Roberts and Hart are, according to Oliver, the victims of independent contractor misclassification.

Hart received no sort of pension or compensation after his contract was up. Roberts did not receive any kind of health insurance during or after his time with WWE.

According to Oliver, McMahon had protected himself from any responsibility by making WWE performers independent contractors. Per federal law, independent contractors are exempt from most discrimination and occupational safety laws. Furthermore, they do not receive annual leave pay, no pension is available and the employer has no obligation to offer them health insurance.

Over the past several years, misclassification has also been a hot topic in the trucking industry. Wage lawsuits are filed on a regular basis by truck drivers screwed out of money due to erroneously being hired as an independent contractor.

Although wage lawsuits are popular in the West Coast due to the region’s tendency to be pro-worker, recent federal cases in the East Coast also have been victorious for drivers who were misclassified.

Earlier this year, the U.S. Court of Appeals for the Third Circuit ruled that the Federal Aviation Authorization Administration Act (FAAAA) of 1994 does not pre-empt New Jersey law for determining whether a truck driver is an employee or independent contractor. About a week ago, another federal court dismissed the Western States Trucking Association’s challenge of California’s standard for classifying workers, saying it isn’t pre-empted by federal law.

It’s worth noting that laws governing trucking jobs are a bit different than other occupations. However, the same principles apply. According to the Department of Labor website, Supreme Court precedent has considered the following factors to be significant when determining employment status:

1. The extent to which the worker’s services are an integral part of the employer’s business.
2. The permanency of the relationship.
3. The amount of the worker’s investment in facilities and equipment.
4. The nature and degree of control by the principal (examples: Who decides what hours to work? Does the worker work for any other company(s)? Who sets the pay rate?).
5. The level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise.

Regarding the first factor, contract truckers often work for companies where transport is its primary function.

Likewise, it goes without saying that WWE performers are essential employees of the company’s primary function.

In terms of permanency, truckers can sign long-term contracts with one company. However, many of these contracts do not hold the driver prisoner to the company, allowing them to contract with someone else as long as it satisfies noncompete clauses. WWE performers, on the other hand, have to sign exclusive contracts.

Degree of control is a popular argument in drivers’ wage suits. Essentially, who is calling the shots? Can the company fire you? How are pay and work hours determined?

Truckers who win wage suits are not in control of the when, where and how much. For WWE wrestlers, their schedule is at the mercy of the company.

Here’s a quote that applies to both trucking and WWE performers:

“How are they self-employed when you’re signed exclusively? You can’t work for nobody else. They tell you when and where you will work. They tell you who you’ll work. They can totally control your life, and yet they call you an independent contractor. How has the government allowed them to get away with that for 35 to 40 years?”

That’s a quote from former wrestling star and former Minnesota Gov. Jesse Ventura during a 2010 interview on the “Howard Stern Show.” Ventura tried to unionize the performers in 1986. However, McMahon put that effort on the chopping block. Again, see the parallels to the trucking industry.

The above video went viral, opening the general public’s eyes to the widespread problem of misclassification. Oliver pointed out that outrage from fans has the potential to change company policy. He’s not wrong. Public outrage that followed a USA Today report on port drivers opened the flood gates to lawsuits and policy reviews.

Hopefully, this exposure to misclassification can get the ball rolling for some citizen-driven smackdown on current employment laws, including transportation workers.