Adami v. Cardo Windows, Inc.

Citations: 299 F.R.D. 68; 2014 U.S. Dist. LEXIS 10805; 2014 WL 320048Docket: Civil No. 12-2804 (JBS/JS)

Court: District Court, D. New Jersey; January 28, 2014; Federal District Court

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Plaintiffs have filed a motion for conditional certification of a Fair Labor Standards Act (FLSA) "opt-in" collective action and a Rule 23 "opt-out" state wage class action. The court grants the FLSA collective action certification but denies the Rule 23 class certification without prejudice due to an ongoing Supreme Court of New Jersey case regarding the classification of workers as employees or independent contractors under the New Jersey Wage and Hour Law (NJWHL). The court partially grants Defendants' motion to seal documents and partially grants and denies Plaintiffs' motion to dismiss counterclaims by Cardo Windows, Inc.

Cardo Windows, Inc., operating as "Castle the Window People," sells and installs windows across several states, including New Jersey. The company claims its five operational facilities function independently. Plaintiffs Jack Varner and Fred Adami, who worked as installers for Cardo, logged extensive hours and primarily completed work in New Jersey, both classifying themselves as independent contractors through signed agreements. Roderick Arce, a former employee and partner at Cardo, managed installation operations and was later terminated under allegations of embezzlement.

The installation crews consist of "installers" and "helpers," with the primary distinction being that installers have certain qualifications and insurance, while helpers do not, although both perform similar tasks.

Cardo installers are assigned helpers based on workload, with helpers reassigned to installers with more work if necessary. Defendants assert that helpers are chosen and compensated by the installers. Both parties agree that Cardo supplies installation crews with necessary materials, and if unavailable, crews purchase materials for reimbursement. Cardo frequently hires new installers, primarily requiring them to have workers’ compensation insurance, a pickup truck, and installation tools, while applicants lacking these are offered helper positions. In 2009, Cardo employed 27 to 32 installers, most of whom had helpers. Plaintiffs claim Cardo invests significantly in training new installers and their helpers, while Defendants argue that Cardo primarily hires experienced installers who receive on-the-job training. 

Plaintiffs allege Cardo exerts substantial control over installers, requiring them to display Cardo branding and convey to customers that they work exclusively for Cardo, discouraging any suggestion of independent contractor status. Installers must inform their manager about job completion by a specific time and submit a time request form for days off. Defendants contend that installers set their own work schedules based on customer needs. Daily, Cardo management holds brief meetings with installers to review previous work, and provides a job packet containing essential documentation for each installation. Disagreements exist regarding work hours; Plaintiffs assert that some installers work seven days a week with mandatory six-day weeks, while Cardo began implementing alternating work schedules in 2008. Installers typically start at 7 AM and report their hours and job status to management in the evening.

Plaintiffs allege that Cardo installers typically work 60 to 65 hours weekly, while Defendants argue that work hours vary and are not mandated. Defendants claim that Plaintiffs Adami and Varner each averaged fewer than 8.75 working days in a 14-day pay period over the last two years. Installers are compensated based on submitted "Installer Pay Stubs" for completed jobs, receiving specific amounts per installation (e.g., $40 for a double hung window plus a $10 bonus). Payment is bi-weekly and contingent upon management approval of job bills, with installers not compensated for travel time but receiving a gas allowance.

Although Defendants do not dispute the payment process, they highlight the piecework nature as making it difficult to ascertain daily working hours. In 2010, Cardo required installers to sign a master subcontractor agreement after a workers’ compensation audit, with threats of paycheck withholding for non-signature. Adami and Varner did not read the agreement prior to signing and were not given copies. Plaintiffs argue that this agreement contradicts Cardo's actual practices regarding work assignments and compensation.

Additionally, Plaintiffs assert that Cardo did not pay overtime for hours exceeding 40 weekly in 2009 or 2010 and did not offer benefits like health or life insurance during that period. Cardo did not withhold federal payroll taxes or issue W-2s but did withhold state taxes based on residency. The company began withholding New Jersey payroll taxes in 2008 and adjusted practices following state rulings regarding employee classifications. Defendants maintain that Cardo treated installers as independent contractors, filed IRS 1099 forms, and that their practices were validated by the New Jersey Department of Labor in 2011, asserting that treating window installers as independent contractors is industry standard.

Cardo produced IRS 1099 forms for its installers from 2009 to 2012, showing 39 installers in 2009, 47 in 2010, 41 in 2011, and 39 in 2012. Many installers worked multiple consecutive years, with 15 working each year from 2010 to 2012. This supports the Plaintiffs' assertion of "14 core installers," including Adami and Varner. The Defendants contend there are significant differences between core installers and those who performed limited work, noting that most installers operated primarily in one state. Among 92 installers from 2009 to 2012, 27 were incorporated businesses and 65 were sole proprietors, with 14 of the sole proprietors working less than 40 hours per week, thus ineligible for overtime. Only 28 installers primarily worked out of New Jersey, of which 12 had binding arbitration agreements. Defendants also argue that Adami's experience was unique due to his close relationship with former owner Roderick Arce.

Procedurally, on May 10, 2012, Fred Adami filed a putative collective and class action against Cardo and several individuals, alleging violations of the FLSA, NJWHL, CIIC, and ERISA, and seeking injunctive relief for future compliance. Defendants answered on June 22, 2012, with Cardo counterclaiming against Adami for breach of contract. An amended complaint was filed on November 27, 2012, adding Jack Varner and Nicholas Brucato as parties. On December 11, 2012, Defendants moved to dismiss parts of the amended complaint, which resulted in some counts being dismissed by the court. A deadline for fact discovery on certification issues was set for April 30, 2013.

Plaintiffs filed a motion for conditional certification of an FLSA "opt-in" collective action and a Rule 23 "opt-out" state wage class action. Further discovery on class issues will follow the Court's decision on the class certification motion. Defendants moved to seal certain exhibits related to their opposition to the class certification and filed an Answer to the Amended Complaint, including a counter-claim against Jack Varner for breach of contract. In response, Plaintiffs moved to dismiss Cardo's counter-claims against Adami and Varner. The Court heard oral arguments on December 16, 2013, reserving decisions on the motions. It denied the Plaintiffs' Rule 23 state wage class certification motion without prejudice, pending a Supreme Court of New Jersey determination on employee versus independent contractor status. The Court allowed for supplemental briefing, after which Plaintiffs submitted new certifications and seven "FLSA Consent Forms," exceeding the scope of allowed supplemental briefing, thus not considered by the Court.

Plaintiffs argue for conditional certification of their FLSA claims, asserting that they and proposed collective members are similarly situated and request notice be sent to all window installers for Cardo from May 9, 2009, to the present. Defendants counter that certification is inappropriate due to the need for individualized determinations regarding employment status and the lack of similarity among proposed collective members, including those with different working conditions and contractual agreements. Ultimately, the Court granted conditional certification of the FLSA collective action but excluded helpers and installers with mandatory arbitration or class action waiver agreements from the definition of the collective action.

Conditional certification under the Fair Labor Standards Act (FLSA) allows "similarly situated" employees to collectively sue for unpaid overtime, requiring them to opt in to the case. The Third Circuit employs a two-step process for collective actions. The first step, the notice stage, occurs early in litigation when evidence is limited. During this stage, "conditional certification" is granted at the court's discretion to facilitate notice to potential class members; it does not determine the existence of a representative action. The court applies a lenient standard, requiring a "modest factual showing" from the plaintiffs that they are similarly situated, which involves presenting evidence of how the employer's policies affected them and other employees. If this showing is made, the court conditionally certifies the collective action for notice and pretrial discovery.

The second stage involves a more thorough examination after additional discovery, where the court makes a definitive ruling on whether opt-in plaintiffs are similarly situated to the named plaintiff. The burden lies with the plaintiff to demonstrate this by a preponderance of the evidence. Courts assess similarity on a case-by-case basis, considering factors such as employment location, the nature of claims, relief sought, and employment circumstances. Individualized defenses may also contribute to a finding of dissimilarity. Additionally, the court evaluates whether collective treatment will effectively reduce costs for plaintiffs and streamline the resolution of common legal and factual issues arising from the same alleged conduct.

The Court must assess whether individuals in the case are similarly situated for determining their status as employees or independent contractors, referencing Bamgbose v. Delta-T Grp. Inc. and Sperling. Under the FLSA, an "employee" is defined broadly, and courts are instructed to consider the overall circumstances of the work relationship, as per Rutherford Food Corp. The Third Circuit outlines several criteria to evaluate employee status, including the employer's control over work, potential for profit or loss, investment in tools, required skills, permanence of the relationship, and the integral nature of the service to the employer's business. Additionally, the economic dependency of the workers on the employer is considered.

In this case, the Court grants conditional certification based on the lenient standard at this stage. Plaintiffs assert similar claims and seek the same relief while working in the same corporate department under similar employment circumstances. Although they are not at the same location, they allege a uniform practice by Cardo in hiring and managing window installers. Defendants contend that differences in employment duration and work performed among installers complicate the situation. However, the Court finds that the shared job duties and business relationship among Plaintiffs and proposed collective members are sufficient for conditional certification. The requirement for all installers to sign independent contractor agreements suggests a common policy, reinforcing the notion of a single plan by the defendants. The Court concludes that the factual showing by Plaintiffs supports the need for conditional certification based on the analysis of the Martin factors.

Plaintiffs have provided evidence that Defendants exert significant control over their installers, requiring them to report to warehouses at specific times, communicate daily with managers, and follow detailed job specifications. Installers are instructed to present themselves as employees of Cardo, which mandates the display of Cardo signage on their vehicles and the wearing of branded clothing. Although installers are responsible for their own trucks and equipment, Cardo supplies all necessary materials. There is a core group of installers with a long-term relationship with Cardo, underscoring the integral role of window installation in the company’s operations.

Defendants cite the case Bamgbose v. Delta-T Grp. Inc. to argue that determining worker classification cannot be done collectively due to varying roles and responsibilities among workers. However, this case is distinguished from the current situation, as the differences among proposed collective action members are not as pronounced. Unlike Bamgbose, where workers had diverse skills and responsibilities, the job of Cardo’s installers remains consistent regardless of customer or location. Furthermore, variations in the installers' status as incorporated entities do not impact collective action certification at this stage, given the broad remedial intent of the Fair Labor Standards Act (FLSA) and the narrow construction of its exemptions against employers. The court finds that while certain individuals, specifically those who signed arbitration or class action waivers, should be excluded, the remaining differences do not hinder the conditional certification of the collective action.

The inclusion of sixteen corporations in the potential plaintiffs under the Fair Labor Standards Act (FLSA) is critical to the case's outcome. The Court determines that these corporations will be considered potential plaintiffs due to the remedial intent of the FLSA, referencing relevant case law. At this stage, the Court does not analyze whether Sales Managers are exempt but focuses on whether the plaintiffs have demonstrated that they are similarly situated to the other Sales Managers, which they have. Consequently, the Court grants the motion for conditional certification of a FLSA collective action, with the exclusion of helpers and installers who signed mandatory arbitration or class action waiver agreements. The Court finds insufficient evidence to show that helpers are similarly situated, as they are employed and paid by installers, and there are no records of helpers' identities. Additionally, installers with arbitration agreements are excluded because the named plaintiffs lack standing to challenge those agreements. The proposed notice form by the plaintiffs will not be accepted; instead, the parties must collaborate to create a fair and accurate notice. The conditional membership in the collective action will include all individuals who installed windows for Cardo within the three years before the notice date, excluding helpers and those with arbitration agreements. If the parties cannot agree on the notice form, the plaintiffs must file a motion to establish it within 21 days of the Order's entry.

Plaintiffs seek equitable tolling of the statute of limitations for potential collective action members under the FLSA, arguing that it is warranted when similarly situated plaintiffs cannot join the lawsuit through no fault of their own. They claim that Defendants have withheld the names and addresses of installers and helpers from the collective action period and have attempted to intimidate plaintiffs, notably through a criminal complaint against Plaintiff Adami. Defendants counter that the circumstances for equitable tolling are not met, asserting they are not obligated to disclose potential plaintiffs' information until conditional certification is granted, that the arbitration agreements were voluntary and did not hinder participation, and that the criminal complaint against Adami was legitimate and not intimidating. They also argue that the pending motion to dismiss has not impeded potential plaintiffs' ability to join. 

Under the FLSA, the statute of limitations for putative collective action members continues until they opt-in by filing consent forms. The Third Circuit recognizes equitable tolling in specific circumstances: if the defendant misleads the plaintiff, if extraordinary circumstances prevent the plaintiff from asserting rights, or if the plaintiff mistakenly files in the wrong forum. The Court finds that none of these situations apply in this case and does not support Plaintiffs’ claims of Defendants’ misconduct. Additionally, the Third Circuit has not definitively ruled on whether failure to disclose potential plaintiffs' information warrants equitable tolling, with courts outside the Circuit divided on the issue. The Court suggests that if the refusal to disclose such information were a sufficient basis for tolling, it would undermine the FLSA's statute of limitations or imply an unwritten disclosure requirement.

The Court determined that the Defendants' failure to provide potential plaintiffs’ names and contact information prior to conditional certification does not warrant tolling the statute of limitations. First, Congress, when enacting 29 U.S.C. § 256, anticipated a time lapse between the collective action complaint and the opt-in plaintiffs' written consents but did not include a provision for tolling the limitations period. Second, allowing equitable tolling under such circumstances would effectively toll the statute of limitations for all potential plaintiffs upon the filing of a complaint, which contradicts the explicit language of the statute. Consequently, the Court denied the Plaintiffs' request for equitable tolling.

Regarding the Plaintiffs' motion to certify a Rule 23 “Opt Out” State Wage Class Action under Fed. R. Civ. P. 23(b)(3) for overtime claims under the NJWHL, the Court denied the motion without prejudice. The denial was based on the pending certification by the New Jersey Supreme Court of the crucial issue of whether individuals are classified as employees or independent contractors under the NJWHL. Additionally, the Court raised concerns about the Plaintiffs' ability to meet the predominance and ascertainability requirements of Rule 23(b).

Before certifying a class, Plaintiffs must demonstrate compliance with at least one subsection of Rule 23(b). Specifically, for Rule 23(b)(3), they must show that common questions of law or fact predominate over individual questions and that a class action is the superior method for resolving the controversy. The predominance test is more stringent than the commonality requirement. If establishing essential elements of the claims necessitates individual treatment, class certification is inappropriate. The Court must conduct a rigorous assessment of the evidence and methods proposed by the Plaintiffs for proving their claims. Despite arguing that common questions predominate due to similarities in work performed, compensation, duties, hours, and harms suffered from Defendants' actions, the Court expressed skepticism about the Plaintiffs' ability to satisfy these requirements.

Joinder of multiple claims is deemed impracticable due to the small amounts owed to many class members, as most installers worked for Cardo briefly. Defendants argue that individual issues outweigh common questions, particularly concerning the classification of each installer as an “employee” under the New Jersey Wage and Hour Law (NJWHL). The Court intends to deny Plaintiffs’ motion without prejudice, pending the New Jersey Supreme Court's upcoming decision on the employee versus independent contractor classification. Defendants propose denying the motion with prejudice, asserting that Plaintiffs cannot meet the criteria for employee status under the NJWHL.

The Court's analysis will hinge on the applicable test for employment status, impacting the predominance determination under Rule 23(b). Additionally, ascertainability issues arise, requiring class definitions based on objective criteria and a feasible method to identify class members. If identifying class members necessitates extensive individualized inquiries or mini-trials, a class action may be unsuitable. 

While Rule 23(a) outlines four prerequisites for class certification—numerosity, commonality, typicality, and adequacy of representation—Plaintiffs must demonstrate these elements by a preponderance of the evidence. The current record lacks sufficient information regarding predominance and ascertainability, negating the need for further discussion on Rule 23(a) requirements.

Numerosity is a significant issue between the parties, with Plaintiffs required to propose a viable method for identifying potential class members given the differences among Cardo's installers. The Court agrees with Defendants that Cardo installers who signed arbitration and class action waiver agreements should be excluded from the class, as well as "helpers" or installers identified by Defendants as incorporated entities. The Court clarifies that it will not reopen class discovery, as Magistrate Judge Schneider set a deadline of April 30, 2013, for completing fact discovery on certification issues, with any additional requested discovery to be addressed after ruling on Plaintiffs' class certification motions. The Court notes that the parties had 11 months for discovery and conducted 14 depositions. Denying the motion without prejudice is deemed appropriate due to a pending question before the New Jersey Supreme Court in Hargrove, allowing Plaintiffs to refile their motion after addressing issues of predominance and ascertainability.

Defendants filed an unopposed motion to seal certain exhibits related to their opposition to Plaintiffs' class certification motion. Under Local Civil Rule 5.3(c)(2), a sealing motion must address four factors: the nature of materials, legitimate interests, the potential for serious injury, and the availability of less restrictive alternatives. Defendants initially sought to seal deposition testimony and confidential business information but withdrew part of the motion concerning some exhibits. They now seek to seal IRS 1099 forms containing sensitive personal information of Cardo installers. The Court grants the motion to seal these exhibits, recognizing the legitimate private interests of the installers in protecting their personal information, and notes that disclosure would cause harm, with no less restrictive alternatives available.

The Court has granted the Defendants’ motion to seal exhibits 13a-d and 15, which contain the IRS 1099 forms of both Plaintiffs and non-parties. Regarding the Plaintiffs’ motion to dismiss Cardo’s counter-claims for breach of contract, the Court will grant the motion concerning the counterclaim against Varner but deny it for the counterclaim against Adami. 

Key facts include that Fred Adami, a professional window installer, entered into an independent contractor agreement with Cardo Windows in March 2001, agreeing to provide all necessary supervision, labor, and tools for the installation work, maintaining control over the work methods. In March 2006, Adami and Cardo updated their agreement, reaffirming his independent contractor status, and again affirmed their relationship through a Master Subcontract Agreement in January 2010. Adami accepted responsibility for his own taxes and acknowledged he was not entitled to employee benefits. Cardo paid Adami significant amounts in 2009, 2010, and 2011, while Adami is alleged to have engaged in fraudulent activities against Cardo.

Similarly, Jack Varner, another professional window installer, entered into a similar independent contractor agreement with Cardo in 2003, agreeing to the same responsibilities and control over work methods. Varner also reaffirmed his independent contractor status in a 2010 Master Subcontract Agreement and accepted per-job payments as his sole compensation during his work for Cardo.

Varner agreed to take sole responsibility for all taxes related to his work and payments received, and he acknowledged that he would not receive any employee benefits from Cardo. Cardo paid Varner approximately $1,000,000 for his services. In the current litigation, Varner seeks reclassification as an employee to obtain employee benefits, overtime pay, and payment of employment taxes. 

Regarding procedural standards, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) can only be granted if the plaintiff's complaint fails to provide fair notice of the claim and its grounds, rendering the claim implausible. A complaint must contain sufficient factual matter to state a plausible claim. Legal conclusions or mere labels are insufficient, and courts typically cannot consider materials outside the pleadings unless they are integral to the complaint and undisputedly authentic. 

In this case, the court will consider documents attached to Defendants' original Answer, as they are integral to Cardo's breach of contract counterclaim and undisputed. The court will first address Plaintiffs' arguments against Cardo’s counterclaims, specifically that the court lacks supplemental jurisdiction over state law claims between non-diverse parties. For such claims to be entertained, they must share a common nucleus of facts with a claim under the court's original jurisdiction. Even with a shared nucleus, if state claims substantially predominate regarding proof, scope, or remedy, they may be dismissed without prejudice, allowing state courts to resolve them.

Cardo's counterclaims for breach of contract against Adami and Varner are rooted in an alleged violation of agreements that define their business relationship as independent contractors, which the Plaintiffs are attempting to contest in this litigation. The Court identifies that the state law breach of contract claims share a common nucleus of facts with the Plaintiffs' Fair Labor Standards Act (FLSA) claim, allowing the establishment of supplemental jurisdiction under 28 U.S.C. § 1367. Cardo argues that Adami has not waived his right to file a motion to dismiss after submitting an answer to the counterclaims, asserting that such a motion is permissible under Federal Rule of Civil Procedure 12(c). The Court confirms that the procedural posture does not affect its analysis.

Plaintiffs seek to dismiss Cardo’s counterclaims on the grounds that neither the FLSA nor the New Jersey Wage and Hour Law (NJWHL) allows counterclaims or offsets by employers against employees. They reference the case of Wheeler v. Hampton Township, which ruled that an employer cannot assert a claim for offsets against FLSA liabilities. Plaintiffs argue that Cardo's claims do not align with Wheeler because they arise from a breach of contract claim rather than a defense for an offset. The Court acknowledges the relevance of Wheeler to FLSA defenses but emphasizes that Cardo's counterclaims must be adjudicated under traditional contract law principles, requiring Cardo to demonstrate a valid contract, a breach, resulting damages, and its own performance of contractual duties.

New Jersey law mandates that a party must plead the performance of its own contractual duties in breach of contract cases. In this case, Cardo alleges that Adami and Varner breached agreements with Cardo. The court determined that Cardo's challenge to the classification of the plaintiffs as independent contractors and their request for compensation and benefits do not amount to a breach, as no specific agreement language prevents such challenges. Consequently, Cardo’s counterclaim against Varner was dismissed due to insufficient allegations of failure to perform under the agreements.

Regarding Adami, the court examined additional allegations suggesting a breach of the implied covenant of good faith and fair dealing. Cardo accused Adami of engaging in unlawful actions, including submitting fraudulent invoices, stealing supplies, and conspiring to defraud Cardo Windows. Under New Jersey law, every contract includes an implied covenant of good faith and fair dealing, which protects a party from the other party’s misconduct. The court concluded that Cardo's counterclaim against Adami contained sufficient factual allegations to support a claim for breach of this implied covenant, particularly related to fraud, conversion, and conspiracy allegations.

The Court denies Plaintiff Adami's motion to dismiss Cardo's counterclaim for breach of contract related to an implied covenant of good faith and fair dealing. It grants Plaintiffs' motion for conditional certification of a Fair Labor Standards Act (FLSA) collective action, confirming that potential members are similarly situated. However, it denies without prejudice the motion for certification of a Rule 23 state wage class action due to the New Jersey Supreme Court's recent acceptance of a case concerning the criteria for classifying individuals as employees versus independent contractors under the New Jersey Wage and Hour Law (NJWHL). The Court also grants Defendants' motion to seal certain IRS 1099 forms and dismisses Cardo's counterclaim for breach of contract against Varner, while allowing the counterclaim against Adami to proceed due to additional allegations.

Further, Plaintiffs allege that Cardo instructs installers to misrepresent their employment status. The Court reviews documents from a 2011 New Jersey Department of Labor investigation, concluding they do not substantiate Cardo's treatment of installers as independent contractors. The only document stating the claimant was not owed money was authored by Nicholas Cardillo. Cardo's counterclaims against Adami also include fraud, conversion, and tortious interference with contract. The Court notes differing approaches in the Third Circuit regarding conditional certification motions based on independent contractor misclassification.

Plaintiffs in the case were found not to be similarly situated due to significant variations in their skills, responsibilities, and experiences with the defendant, making a collective evaluation of employee versus independent contractor status impractical. "Helpers" were excluded from the collective action due to a lack of identifiable records, while installers with mandatory arbitration or class action waivers were also excluded as the named Plaintiffs lacked standing to challenge those waivers. The court distinguished this case from two Third Circuit cases involving independent contractor misclassification, noting that those cases had robust factual records following conditional certification, whereas the current case did not. Additionally, the present record is more comprehensive than previous inadequate cases because it includes detailed testimony from an installer with personal knowledge of Cardo’s practices. The court determined that the collective action period should start three years prior to the notice date, based on allegations of willful FLSA violations. Defendants were directed to provide relevant documentation for 2013 and 2014. Although Plaintiffs' counsel was unclear on which claims were being certified under Rule 23, the opinion specifically addresses class certification for claims under the New Jersey Wage and Hour Law (NJWHL). The Third Circuit has sought clarification from the New Jersey Supreme Court regarding the applicable employment test under the NJWHL, which has been accepted for review.

Four distinct employment tests have been recognized under New Jersey law. In the case of Hargrove v. Sleepy’s, LLC, the plaintiffs did not contest the Court’s denial of their motion without prejudice. Under Rule 23(a), a class action can proceed if: 1) the class size makes individual joinder impractical; 2) there are common legal or factual questions; 3) the claims of the representative parties are typical of the class; and 4) the representative parties can adequately protect the class's interests. The plaintiffs contend that Cardo's counterclaims violate the Thirteenth Amendment by seeking to recover all wages paid to them. Cardo's counterclaim against Adami seeks recovery of amounts paid under their contracts, while the claim against Varner demands reimbursement for costs and damages due to Varner's breach, including taxes and employee benefits. The Court deems Cardo's damage pleadings sufficient to withstand a motion to dismiss. Cardo's counterclaim against Varner asserts that Varner's request for reclassification as an employee and the associated benefits breaches their independent contractor agreement. The language in Cardo's counterclaim against Adami mirrors this assertion.