Class action says appliance delivery biz shorted drivers pay by misclassifying them as contractors

By Jonathan Bilyk | Jan 28, 2016

A group of delivery drivers for a business specializing in the home delivery of appliances, furniture and other products on behalf of a number of retailers, have brought a class action lawsuit against the shipping company, alleging the company has improperly classified its drivers as independent contractors, shorting them earnings in the process.

On Jan. 26, plaintiffs Cedric Morris, Paxton Williams and Donovan Jameson filed suit in Cook County Circuit Court against TopHat Logistical Solutions LLC, alleging violations of the Illinois Wage Payment and Collection Act and unjust enrichment. The complaint said TopHat is based in suburban Bloomingdale; the company’s website indicated it is based in Lake Geneva, Wis.

The plaintiffs, represented by attorneys with the firms of Siegel & Dolan, of Chicago, and Lichten & Liss-Riordan, of Boston, said they are also seeking damages on behalf of a class of other plaintiffs which they estimated could number in the thousands.

According to the complaint, Morris, of Maywood, worked for TopHat as a driver from 2010-2015; Williams, of Bellwood, from 2011-2015; and Jameson, from 2013-2014. The complaint alleged the drivers were all classified as independent contractors, by TopHat, which, according to its website, delivers various large products for such retailers as Sears, hhGregg, Grand Appliance and TV, Sleepy’s and MattressFirm, among others.

However, while the plaintiffs said they and other drivers were classified as independent contractors, subject to an agreement they signed with TopHat, they said the way TopHat managed their drivers should instead qualify them as employees, under the law.

“The behavioral and financial control manifested over the drivers by TopHat, both under the terms of their contracts and in fact, demonstrates that they are TopHat’s employees,” the complaint stated.

The complaint said TopHat required drivers to report to TopHat’s facility between 6 a.m. and 7 a.m. “six to seven days a week” to receive their route assignments and deliveries list; to wear uniforms; to make deliveries in a manner and in a time mandated by TopHat; submit to background checks and drug tests; to receive authorization from TopHat for any “helper” the drivers might bring along; to operate their vehicles under TopHat’s Department of Transportation number; and to check in with TopHat after each delivery or carry GPS devices, among other stipulations.

The drivers said they routinely worked 12-14 hours a day, but TopHat would deduct “certain expenses directly from plaintiffs’ checks, including deductions for insurances … equipment, truck rentals and uniforms,” as well as costs of “damage” from “unsatisfactory” deliveries, and additional penalties for “lateness” or “uncompleted deliveries.”

Yet, the complaint said, TopHat requires drivers to pay for their own fuel, vehicle maintenance costs and “payments to helpers.”

The complaint said, by “mischaracterizing” its drivers as independent contractors, TopHat “evades employment related obligations, such as social security contributions, workers’ compensation coverage and state disability and unemployment compensation.”

“TopHat illegally shifts these costs … to plaintiffs,” the complaint alleged.

The drivers asked the court to certify a class of other plaintiffs, including anyone who “contracted to provide delivery services … to TopHat” in Illinois.

The complaint asked the court to order TopHat to pay unspecified damages, including restitution for all deductions from drivers’ paychecks; unpaid wages, with interest; statutory damages; and attorneys’ fees.

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Siegel & Dolan TopHat Logisitical Solutions

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