Like many companies in the “gig economy,” Survey.com promotes itself as merely a mobile app company. Its app allows people to sign up for on-demand merchandising projects such as:
Stocking, facing, and rotating products
Setting up end caps, promotional fixtures, and point-of-sale displays
Affixing stickers and instantly redeemable coupons to your items
Individuals who complete projects generally receive a payment from Survey.com based on the size of the project. Since Survey.com classifies the workers that perform merchandising projects for them as independent contractors, they are not paid as w-2 employees or given any employee benefits.
A recent lawsuit filed on August 6th, 2018 in the United States District Court for the Northern District of California contends that Survey.com misclassifies its Merchandisers as independent contractors and as a result, violated their rights under the Fair Credit Reporting Act, the Fair Labor Standards Act, and the California Labor Code.
Survey.com is the latest gig economy company to be sued for labor violations in the wake of the California Supreme Court’s April 30, 2018 decision Dynamex Operations West, Inc. v. Superior Court. The Dynamex decision rejected the longstanding test for whether a work was an employee or contractor (which had led many company to misclassify their workers as independent contractors), and replaced it with the so-called “ABC Test” which is far more favorable to the worker.
Under the ABC Test, the burden is on the company (in this case Survey.com) to demonstrate that every worker is not an employee by proving all three of these elements:
- the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
- the worker performs work that is outside the usual course of the hiring entity’s business; and
- the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Shortly after the Dynamex decision, Lyft and Postmates were both hit with class action lawsuits alleging their drivers should have been classified as employees. Similar to the lawsuits against Lyft and Postmates, the lawsuit against Survey.com argues that Merchandisers should have been classified as employees because they were not free from Survey.com’s control or directions in connection with the performance of their work, they work they performed was not outside the usual course of Survey.com’s business, and they were not customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for Survey.com.
The Dynamex opinion is a massive victory for California workers who have been misclassified as independent contractors. If you are a contractor for Survey.com or another gig economy company whose entire platform is built on the work of its contractors, it is very likely that are owed wages and potential penalties under California law. Although the Dynamex decision was issued in April 2018, it has been held to apply retroactively, meaning you may be eligible to recover wages earned in prior years, subject to the applicable statutes of limitations. For further guidance, please contact our office.