Omnicare named co-employer, remains target of fair wage suit

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A federal court has found that Omnicare Inc. and its contractor, Act Fast Delivery, jointly employ a group of drivers under a year-old, co-employment standard.

The Wednesday ruling by a judge in West Virginia, where Act Fast is based, means that more than 200 workers previously tagged as independent contractors can go after the pharmaceutical company and its delivery service for back wages they claim they are owed.

Omnicare had sought a summary motion to be released from the case. But U.S. District Judge Irene C. Berger favored the arguments by plaintiff Eric Young. She specifically noted in her ruling Omnicare's extensively detailed contract, which mapped routes, scheduled timing and even gave Omnicare the power to recommend specific drivers be terminated.

“This amount of control exercised by Omnicare clearly amounts to the ability to direct and control the plaintiffs,” Berger wrote.

Young is joined by fellow delivery drivers who claim both companies violated the Federal Labor Standards Act by improperly classifying them as “independent contractors” to avoid paying overtime.

Another judge certified the class action lawsuit last August. In it, attorneys for the plaintiffs claim that when drivers began delivering medical and pharmaceutical products, they were required to sign “Independent Contractor Agreements.” Because of those agreements, the lawsuit alleges, the drivers were improperly classified as independent and paid per delivery or route rather than by the hour.

The drivers claim that under federal law they were actually employees who were entitled to minimum wage and overtime pay.

An Omnicare spokesman declined comment, citing the ongoing case. The company, however, argued in filings that it needed detailed contracts with Act Fast to ensure quality control and compliance and had not intended to act as an employer.