In the late 1990s, the non-profit National Employment Law Project (NELP) was approached by a Manhattan delivery worker who walked almost two marathons a week, for as little as $1 an hour. Unlike most workers, his employer wasn’t someone he could look square in the eye. Instead, he delivered groceries for a web of subcontractors, which made it difficult to negotiate or understand any aspect of his employment.
It turns out he wasn’t alone. Scattered across New York City were 2,000 more workers like him – a network of mainly West African immigrants who congregated on street corners, signaling that they were available for work. Frequently, they were picked up by middlemen from Hudson Delivery and Chelsea Trucking, which provided cheap labor to major grocery store chains like Gristede’s and Food Emporium.
Today, more than half of all Americans pay to have groceries delivered straight to their door. Fueling this trend are hundreds of thousands of gig economy workers who work for Uber Eats, Doordash, and GrubHub, which collectively control more than 75% of the market. But in the 1990s, straight to your door grocery delivery was a relatively novel concept.
One man named Ismail Ngendakumana, who delivered groceries for a Gristede’s at 84th Street and Columbus Avenue, told the New York Times that he earned just $175 a week, including tips, working 70-hour weeks.
To compound the problem, many of the workers were undocumented immigrants, who were afraid of speaking out about any aspect of their work. Ngendakumana, for example, was a refugee from Burundi.
NELP lawyer Catherine Ruckelshaus pressed forward and was eventually joined by Outten & Golden partner Adam Klein. Together, they assisted the organizing workers in coordination with the New York State Attorney General’s Labor Bureau.
“Our clients were highly sophisticated and had a deep-rooted sense of community,” Klein recalls.
They were very focused on helping us and were incredibly engaged throughout the entire case. In the end, we were all united by the pursuit of justice, and a shared obligation to serve this expatriate community.
From that, an outspoken deliveryman named Faty Ansoumana became the face of the movement – and Ansoumana v. Gristede’s was filed as one of the first hybrid collective and class actions under both New York and federal law.
“We argued that the grocery stores took advantage of the men, misclassifying them as ‘independent contractors’ to evade minimum wage and overtime laws, Klein said.” This made their employment ripe for exploitation, and denied them basic protections, including medical benefits and paid leave.”
For their part, Gristede’s argued that they were not beholden to minimum wage laws, because the deliverymen were independent contractors. One argument was the deliverymen had the “discretion” to choose which street to walk on to reach their destination. But the court rejected this argument, given the workers’ lack of independence and how involved the grocery stores were in their day-to-day supervision.
In 2003, after years of litigation, the workers settled for $3.2 million. A similar claim against Duane Reade, which also employed the workers, led to them recovering another $320,000 in back pay.
Several workers were owed as much as $60,000, depending on their claims. Some used the money to move into better living conditions, while others sent it back to their families in West Africa.
Beyond this, 60 deliverymen were hired as Gristede’s employees – earning more than the minimum wage, plus tips, healthcare, pension, union and vacation benefits.
For his part, Ismail Ngendakumana had been severely underpaid for over three years. After the settlement, he told the media that he had never given up on hope.
I kept telling myself this is America. Some justice will happen someday.
And it did. But independent contractor misclassification endures today, particularly among immigrant, low-wage and gig economy workers, but also in seemingly unexpected places like well-funded tech startups, and home healthcare companies, and construction companies. In construction specifically, misclassified workers can lose as much as $20,000 a year in fair pay and benefits.
If you’re interested in learning more about the economic penalties associated with misclassification, The Century Foundation, and the National Employment Law Project are two good places to start. And if you believe your rights have been violated, remember that your voice matters – and you have power.
