If you drive for a rideshare or delivery app in New Jersey, the app almost certainly calls you an independent contractor. In our view, many drivers are misclassified employees under New Jersey law, and misclassified drivers may be owed real money: unpaid minimum wage, overtime, and compensation for the gas, mileage, and phone costs the apps push onto you.

Swartz Swidler is an employment law firm for workers in New Jersey and Pennsylvania. We represent drivers and couriers for Lyft, DoorDash, Grubhub, Instacart, Amazon Flex, and other app-based platforms. The consultation is free, and we handle these cases on contingency: we do not get paid unless we recover money for you.

Find Out If You Have a Claim

What Is Driver Misclassification?

Misclassification happens when a company treats a worker as an independent contractor even though the law treats that worker as an employee. The label matters because employees get rights that contractors do not: minimum wage for every hour worked, overtime pay, unemployment insurance, and protection from unlawful deductions.

The apps say drivers are in business for themselves. But look at who controls the work. The app sets your rates, decides which rides or deliveries you see, tracks you turn by turn, scores you, and can deactivate you at any time. In our opinion, that looks a lot more like employment than independence.

New Jersey’s ABC Test Favors Drivers

New Jersey uses what is known as the ABC test to decide whether a worker is an employee for wage purposes. The test comes from New Jersey’s unemployment law, and the New Jersey Supreme Court applies it to wage claims. Under the ABC test, a worker is presumed to be an employee unless the company proves all three of the following:

• A. The worker is free from the company’s control and direction in performing the work;
• B. The work is outside the usual course of the company’s business, or performed outside all of the company’s places of business; and
• C. The worker is engaged in an independently established trade, occupation, or business.

The company carries the burden on every prong, and failing even one prong makes the worker an employee. For drivers, prong B is often the hardest one for the apps to explain: in our opinion, a ride or a delivery is not outside the usual course of business for a company whose business is rides and deliveries.

What Misclassified Drivers May Be Owed

• Unpaid minimum wage. After you subtract dead miles, waiting time, and out-of-pocket expenses, many drivers earn less than New Jersey minimum wage for some or all of their hours. Employees are entitled to at least the minimum wage for every hour worked.
• Overtime. Employees generally earn time and a half after 40 hours in a week, and many full-time drivers put in far more than 40. Learn more about unpaid overtime claims.
• Vehicle and phone expenses. Gas, mileage, tolls, insurance, and your phone plan are costs the apps currently push onto drivers. New Jersey law limits what an employer may shift onto or deduct from an employee’s pay, and in our view employee drivers may be able to recover many of these costs.
• Unlawful deductions. Fees and charges taken out of a paycheck may violate New Jersey’s wage payment laws when the worker is an employee.

New Jersey strengthened its wage laws in 2019. Wage claims may reach back up to six years, and the law also allows for additional damages on top of the unpaid wages in many cases. Deadlines still apply, so it pays to ask sooner rather than later.

Not Just Rideshare: Delivery and Shopper Apps Too

The same legal tests apply to delivery and shopping platforms. We talk to couriers for DoorDash and Grubhub, shoppers for Instacart, and drivers for Amazon Flex. If an app controls your prices, your customers, and your standing on the platform, your classification is worth a hard look.

Forced Arbitration Does Not End the Fight

Most driver agreements contain arbitration clauses with class action waivers. The companies count on those clauses to discourage claims. Our approach is to bring claims one driver at a time in individual arbitration. Under the major apps’ own agreements, the company typically must pay most of the arbitration fees, and thousands of individual claims are much harder to ignore than one lawsuit. We have built our practice to handle driver arbitrations at scale.

Why Drivers Choose Swartz Swidler

• Employment law is what we do: wage and hour, misclassification, discrimination, and retaliation cases for workers in New Jersey and Pennsylvania.
• We have litigated wage claims against some of the largest companies in the country. See our cases.
• The consultation is free, and we take these cases on a contingent fee basis. We do not get paid unless we recover money for you.
• Talk to a person: call (856) 513-8050 or email rideshare@swartz-legal.com.

Driver Misclassification FAQ

I signed an agreement saying I am an independent contractor. Do I still have a claim?

Possibly. The label in the paperwork does not decide the question. New Jersey’s test looks at the reality of the working relationship, not the title the company chose, and courts have found workers to be employees despite signed contractor agreements.

What does it cost to hire you?

Nothing up front. The consultation is free, and we handle these cases on a contingent fee: we only get paid if we recover money for you. Results depend on the facts and circumstances of each case.

How far back can a claim go?

It depends on the claim, but New Jersey wage claims may reach back up to six years. Waiting can cost you months of recoverable wages, so it makes sense to ask early.

Can the app deactivate me for bringing a claim?

New Jersey law prohibits retaliation against workers for asserting their wage rights. If a company retaliates, that may be a separate claim with its own damages.

I drive for more than one app. Does that hurt my case?

No. Many drivers work on multiple platforms. Each relationship is judged on its own facts, and you may have claims against more than one company.

What if I drove mostly in Pennsylvania?

Pennsylvania and federal law use different tests than New Jersey, but misclassified drivers may still have claims. We represent workers in both states. Tell us where you drove and we will tell you what we think.

Talk to a Gig Economy Lawyer Today

You already did the work. If the law says you should have been paid like an employee, you may be owed back pay and expenses on top of what the app paid you. Find out where you stand: check your eligibility in about two minutes at GigDriver.Lawyer, or call (856) 513-8050.