Virtual Workers and Economic Reality: Independent Business Owners Claim they were Employees

Call center service provider Great VirtualWorks is facing a collective action complaint about its alleged violation of the FLSA (Fair Labor Standards Act) and minimum wage/overtime laws of Kentucky and Pennsylvania. The case alleges that Great VirtualWorks misclassified “independent business owners” as independent contractors rather than employees.

However, the so-called business owners are in fact individual employees working from their homes, Burton and Dlhopolsky said. According to the complaint, these employees are performing hourly-paid work duties such as telephone-based customer service, sales service, and technical support for Great VirtualWorks’ client companies.

Great VictualWorks says on its website that it is in the business of providing small and large corporations with the highest quality customer service, sales & support and technical expertise for its client’s consumer base. It mostly takes into its “network of skilled, knowledgeable representatives” those it describes as traditionally underserved. These individuals include the work-at-home moms, college students, retirees, veterans and the minorities. Great VictualWorks proudly says it gives this segment of the population “the vital opportunity to earn an income working part time.”

But two such individuals, Burton and Dlhopolsky, alleged that Great VirtualWorks has been violating the FLSA, mislabeling them to avoid paying them as rightful employees all the hours they spent actually working for the company.

According to the complaint, as provided in the FLSA and in wage and hour laws of  Kentucky and Pennsylvania, Great VirtualWorks has at all times of Burton and Dlhopolsky’s “employment” been in control of their work schedules and activities. There were also times, they added, when Great VirtualWorks required them to work more hours or during specific days like on weekends.

The plaintiffs argued that they and other similarly situated individuals were not business owners or contractors as labeled by Great VirtualWorks because in all the time they worked for the company, they had not been required to make significant investments in equipment or materials,  to exercise any specific skills, or make a significant profit or loss from their work.

The plaintiffs said Great VirtualWorks relied on them and similarly situated employees to perform an integral part of its business of providing telephone-based customer service, sales service and technical support to other companies.

Burton and Dlhopolsky worked for Great VirtualWorks in 2015 and 2016. They are now seeking the unpaid minimum, overtime, and contractually-owed wages, liquidated damages, fees and costs, and other remedies they may be entitled to during this time. The same goes for other similarly situated employees in the putative FLSA collective class.

Burton and Dlhopolsky said that during the time they worked as “independent business owners”, Great VirtualWorks failed to pay them for work they performed before, during and after shifts, as well as during periods in which they were temporarily disconnected from the company’s timekeeping system.

The work for which Burton and Dlhopolsky seek pay includes connecting to the company from their own homes or places of work, opening computer applications with which to perform the company’s needed telephone-based customer service, sales service and technical support (5-20 minutes); having brief rest breaks (the FLSA says 5-minute to 20-minute breaks must be counted as hours worked); troubleshooting activities in times they got disconnected to the company’s network during their shift; performing post-work duties such as shutting down computers and applications; performing related work such as reviewing emails and completing notes when not engaged in calls but clocked in; taking part in required online training; and attending mandatory meetings or coaching sessions.

As a result, the Complaint alleges, the pay actually received averaged less than $7.25 per hour, which is the minimum wage under federal law as well as in Kentucky and Pennsylvania. On top of this, their overtime was being paid correctly, they allege.

Great VirtualWorks is a  corporation headquartered in Fort Lauderdale, Florida that provides telephone-based customer service, sales service and technical support to customers of client companies such as Great Healthworks, makers of the dietary supplement Omega XL.

The collective claims brought under the FLSA here allegedly apply to similarly situated individuals in other states in addition to Kentucky and Pennsylvania.

Currently the lawsuit is stayed pending an upcoming ruling by the United States Supreme Court on a legal issue relevant to the employees’ claims, which is whether Great VirtualWorks can require them to submit their claims to individual arbitration.

The amended collective class action complaint with jury demand is recorded in Kentucky as  Case No. 0:17-cv-00063-HRW. The plaintiffs are represented by Barkan Meizlish Handelman, Goodin Derose Wenz, LLP and JTB Law Group, LLC.

If you have questions or information to provide, you may contact the following attorneys:

Trent Taylor; ttaylor@barkanmeizlish.com; (800) 274-5297

Robi Baishnab; rbaishnab@barkanmeizlish.com; 800) 274-5297

Nicholas Conlon; nicholasconlon@jtblawgroup.com; (877) 561-0000)