B E N J A M I N N . C A R D O Z O S C H O O L O F L A W • Y E S H I V A U N I V E R S I T Y LABOR AND EMPLOYMENT CLINIC (212) 790-0857 FAX (212) 790-0256 Daniel Silverman Michael Silverman Adjunct Clinical Professors of Law Co-directors JACOB BURNS INSTITUTE FOR ADVANCED LEGAL STUDIES BROOKDALE CENTER • 55 FIFTH AVENUE • NEW YORK, NY 10003-4391
February 1, 2011
VIA FACSIMILE AND FIRST CLASS MAIL
Division of Labor Standards
75 Varick Street, 7th floor
New York, NY 10013
Re: Recai Iskender
We are writing regarding Mr. Recai Iskender’s request that the Department of Labor investigate wage and hour and non-payment of wages violations. Mr. Iskender has informed us that the Department of Labor explained to him that it could not assist him, or investigate his employer Golden Link US Inc./Tropicana Atlantic City Corp (hereinafter “Tropicana”) because your office determined that Mr. Iskender is an “independent contractor.” We respectfully request that the Department of Labor reconsider this assessment of Mr. Iskender’s case. The degree of control that Tropicana exercised over the manner in which Mr. Iskender performed his duties, Mr. Iskender’s inability to contract his services to Tropicana’s competitors and Mr. Iskender’s inability to negotiate his rate of pay and hours demonstrate an employer-employee relationship between Mr. Iskender and Tropicana.
Mr. Iskender entered into a verbal agreement with Tropicana, the sole proprietary agent of Golden link US, Inc. in which he would drive one route per day to Atlantic City. Although Mr. Iskender was the title owner of the bus he used, Tropicana exerted control over the bus while employing Mr. Iskender. For example, when Mr. Iskender was unable to work due to 2 Department of Transportation regulations, Tropicana – not Mr. Iskender – chose drivers to operate Mr. Iskender’s bus. Mr. Iskender had no say in the matter and could not refuse Tropicana the use of his bus. Indeed, Tropicana took Mr. Iskender’s bus key and made copies for its other drivers to use.
Tropicana’s control over Mr. Iskender is also demonstrated by their prohibition against Mr. Iskender hiring assistants or delegating the work to anyone else. Because the evening shift workers were chosen by Tropicana, Mr. Iskender had no idea whether they had proper licensing or a safe driving record. He had no authority to veto any drivers Tropicana hired to drive his shifts, and had no power to hire a substitute of his choosing.
At all times that Mr. Iskender was driving for Tropicana, Tropicana required him to be accompanied by another Tropicana employee – a “tour guide.” This “tour guide” instructed him which routes to take, what speed to drive, the appropriate temperature for the bus, what movies he could show on the bus, and where he could pickup and drop off passengers. Furthermore, Tropicana sold tickets for bus service exclusively and Mr. Iskender was prohibited from negotiating the rates or charges with the passengers directly.
Under their employment agreement, Tropicana agreed to compensate Mr. Iskender $1200 per day, $600 in cash and $600 by check. Mr. Iskender maintained the bus, paid for insurance, and repairs. Although Mr. Iskender paid the insurance premium on the bus, Tropicana was the Certificate Holder and was insured under the policy.
The fact that Mr. Iskender owned his own vehicle, paid for insurance and repairs and was generally responsible for the Vehicle’s upkeep does not negate the possibility that he was an employee of Tropicana. As the Appellate Division, Second Department explained in Bhanti v. Brookhaven Memorial Hospital Medical Center, “[t]he determination of whether an employer-employee relationship exists rests upon evidence that the employer exercises either control over the results produced or over the means used to achieve the results.” 260 A.D.2d 334; 687 N.Y.S.2d 667(2nd Dept 1999). In the Bhanti case, complainant alleged three wage and benefits claims under NY CLS Labor § 191. There the court found that the claimant, a physical therapist, was undeniably an independent contractor since the claimant “possessed sole decision-making power regarding the type, nature, extent, duration, and follow-up therapy for each patient, was not precluded from competing with Brookhaven or from establishing his own private practice and was not required to work a fixed schedule.” Id. Mr. Iskender, conversely, did not, as detailed above, exercise decision-making authority in the manner in which he exercised his duties. As explained above, when Mr. Iskender drove shifts for Tropicana, he was required to have a Tropicana employee on the bus at all times who instructed him regarding most aspects of how he performed the required task. Furthermore, Mr. Iskender could not compete with other companies. These factors strongly support our position that Mr. Iskender was an employee of Tropicana.
Further evidence of the control that Tropicana had over the method and manner that Mr. Iskender performed his work was that he was not free to personally hire help. Under CBA Indus. v. Hudacs (In re Claim of Werner), 210 A.D.2d 526; 619 N.Y.S.2d 379 the court found the fact 3 that, each deliverer was free to hire others to fulfill their contractual obligation without any restriction or approval from the distributor and that Claimant retained sole responsibility for finding substitutes to be determinative of an independent contractor status. As stated above, the evening shift workers were chosen by Tropicana. These factors further demonstrate the extent of control that Tropicana exercised over Mr. Iskender and therefore show an employee/employer relationship.
In addition, the factors as set out on the Department of Labor website under “The Independent Contractor Relationship” (http://www.labor.state.ny.us/ui/dande/ic.shtm) further support the notion that Mr. Iskender’s contract with Tropicana was that of an employee and not an independent contractor. Mr. Iskender did not determine his own schedule, nor was he able to set or negotiate his own pay rate. Tropicana also controlled the signs and advertisements he displayed on his bus, specifically prohibiting certain displays Mr. Iskender would have preferred to display.
We believe that a balancing of factors set forth by the Department of Labor, as well as those articulated in the case law, clearly shows that Mr. Iskender was Tropicana’s employee and not an autonomous independent contractor. Therefore we respectfully urge the Department of Labor to investigate Mr. Iskender’s claim of wage and hour violations resulting from Tropicana’s nonpayment of over $30,000. It is likely the case that Tropicana failed to pay other similarly situated employees, making this an investigation which would protect more than simply one employee. We thank you for considering our request to reconsider this case.
Very Truly Yours,
cc: Recai Iskender