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A federal judge has dismissed a putative class action against Northwestern Mutual. The suit filed by a longtime insurance agent who claimed the company improperly classified him and his counterparts as independent contractors.

U.S. District Judge William J. Martini of the District of New Jersey granted Northwestern’s motion for summary judgment on plaintiff Fred Walfish’s claims that Northwestern Mutual had violated the New Jersey Wage Payment Law (NJWPL).

Walfish argued that, despite his classification as an independent contractor, Northwestern Mutual exerted a significant amount of control over the his day-to-day duties — including the deduction of expenses from agent commissions — meaning that he could be classified as an “employee” under the NJWPL, entitling him to the wage protections under that law.

(Related:  Tips When Considering a Commission-Based Job)

Northwestern Mutual countered that the NJWPL should be read to include an exclusion for insurance agents under New Jersey Unemployment Compensation Act; that the nature of Walfish’s relationship with Northwestern meets the “ABC Test” for classification as an independent contractor applicable under state law; and that any deductions made from Walfish’s commissions were legal and agreed-upon.

Martini wrote in his May 6 opinion that, because the court holds that the undisputed facts support a finding that defendants have met their burden on each of the three requirements of the ABC Test, the court need not address the defendants’ argument about the plaintiff’s consent to the commission deductions.

The ABC test presumes an individual is an employee unless an employer can show that:

  1. That person is free from direction relating to performance of service;
  2. That service is either outside the usual course of the business or performed outside of the normal place of business; and,
  3. The individual is routinely engaged in an independently established trade, occupation, profession or business.

Of part A, Martini said, “The court is unwilling to find that, by promulgating certain rules to ensure regulatory compliance, Northwestern exercised control and direction sufficient to fail Part A of the ABC test. Were that so, any business operating in a regulated industry would necessarily no longer be able hire workers under an independent contractor relationship unless it was willing to risk regulatory non-compliance.”

“Defendants have also met their burden under Part B under either of the alternative methods of satisfying that prong,” Martini added. “As to the course-of-business method, the uncontroverted testimony demonstrates that Northwestern does not ‘sell’ insurance.”

As for part C, Martini said Walfish did not contest Northwestern Mutual’s argument that it met its burden. And even after the termination of Walfish’s association with Northwestern, Fred Walfish Insurance continued “’to exist independently of and apart from the particular service relationship,’” the judge said.

“The undisputed facts demonstrate that plaintiff was free from control and direction in the sale of their insurance products, performed his services outside the normal place and course of defendants’ business, and continued Fred Walfish Insurance after the termination of his association with defendants,” Martini said. “The Court thus finds that Plaintiff was an independent contractor.”

Lucas Buzzard of Joseph & Kirschenbaum in New York represents Walfish, and Sean Lynch of Morgan, Lewis & Bockius represents Northwestern. Neither responded to requests for comment.

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