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Claims that ‘bloggers’ for Vox Media were willfully misclassified as independent contractors will advance

By Marjorie Johnson, J.D.

A group of employees who provided blogging services to Vox Media, Inc. plausibly alleged that the company willfully misclassified them as independent contractors for purposes of invoking the three-year statute of limitations for their FLSA collective action asserting overtime and minimum wage violations. Denying the media giant’s partial motion to dismiss this collective action, in which it sought to limit their claims to the FLSA’s two-year statute of limitations, a federal court in the District of Columbia held that the plaintiffs plausibly alleged a willful violation by asserting that senior executives at Vox were formerly senior executives at America Online, Inc. (AOL) when a similar lawsuit was pending against AOL, and that Vox received multiple complaints from employees regarding their inadequate wages but did nothing (Bradley v Vox Media, Inc., September 4, 2018, Collyer, R.).

Classified as independent contractors. This FLSA collective action was brought against Vox Media, Inc., which operates approximately 319 sports websites through its business division, SB Nation. Each website is maintained by a “site manager,” whose relationship is governed by a blogger agreement. These agreements outline when and how often the site managers must create new content, specify that Vox maintains the authority to edit or remove such content, and include a non-compete clause.

The three named plaintiffs were site managers at different Vox websites, had entered into blogger agreements with the company, and were managed by a Vox “league manager.” Though they claimed that they usually worked 30 to 40 hours a week, two claimed they worked up to 50 hours per week during peak time while the third claimed she worked up to 60 hours per week. One received monthly pay of $75, another $125, and the third $400.

The plaintiffs’ FLSA lawsuit claimed that Vox misclassified them as independent contractors to prevent paying them minimum wage and overtime. At issue was Vox’s partial motion to dismiss, in which it sought to limit their claims to the two-year, rather than three-year, statute of limitations provided by the FLSA. Vox also moved the court to take judicial notice of four exhibits.

No judicial notice of LinkedIn profiles. At the outset, the court denied Vox’s request that it take judicial notice of several exhibits which included screenshots from plaintiffs’ LinkedIn profiles. The company argued that the exhibits helped prove that it did not willfully violate the FLSA since they showed that the plaintiffs did not consider themselves to be employees. Thus, the argument went, they were relevant to whether the alleged employee simultaneously worked for others—a key factor of the independent contractor analysis.

However, at the motion to dismiss stage, the issue was limited to whether the plaintiffs stated a plausible claim. Therefore, it was premature to consider whether they subjectively believed they were employees of Vox. And while LinkedIn profiles generally consist of self-reported employment information, at this point in the litigation, the court could not verify “with certainty” the accuracy of the information contained in these screen shots.

Plausibly alleged willfulness. The court also rejected Vox’s assertion that the plaintiffs failed to adequately plead a willful violation, limiting their FLSA claims to the two-year FLSA statute of limitations. A violation is willful if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Here, the plaintiffs argued that they adequately alleged a willful violation because they claimed that Vox senior executives were formerly senior executives at America Online, Inc. (AOL), when a similar lawsuit was pending against AOL, and that Vox received multiple complaints from employees regarding their inadequate wages but did nothing.

Similar lawsuit when execs worked for AOL. To support their allegation of willfulness, the plaintiffs focused on three executives of Vox—the CEO, the president, and its general counsel and chief legal officer—who they claimed were involved in the decision to classify them as independent contractors and deny them the pay required by the FLSA. They also alleged that each of these executives had previously worked for AOL during a time when that company was defending against a class action lawsuit, as well as an investigation by the Department of Labor (DOL) concerning its failure to pay AOL “community leaders” as employees.

Complaints to Vox management. In additions the plaintiffs also alleged that one of the named plaintiffs had complained to her manager about unpaid wages and that “upon information and belief,” Vox received complaints from other site managers concerning the company’s pay practices. Thus, they argued that the combination of prior knowledge of the AOL litigation and complaints from employees of inadequate wages was sufficient to support their allegation that Vox “knew it was illegal to classify the FLSA class members as independent contractors and fail to ensure they were paid at least the minimum wage and overtime required by law.”

After reviewing similar cases, the court determined that while the plaintiffs’ allegations of willfulness were not as “concrete or specific,” they were sufficient to raise a plausible right to relief under the three-year statute of limitations. And while the record may eventually support Vox’s position, for now, the plaintiffs were entitled to attempt to discover evidence to support their allegations.