Todd H. Lebowitz

Partner

Cleveland
T +1.216.861.7899
F +1.216.696.0740

"[Todd] is extremely responsive, timely and has a hands-on approach to all of his work." "He's extremely knowledgeable."

— Chambers USA 2022

Overview

Who Is My Employee? Todd Lebowitz has built a practice niche helping companies nationwide answer that question. Independent contractor misclassification and joint employment claims can be costly. Todd helps businesses create common sense, customized solutions that limit risk. His in-depth understanding of the many classification tests that apply to different laws, different industries, and different states has made him a go-to resource for Fortune 500 companies, regional and local businesses. 

Todd leads the firm’s national Contingent Workforce Practice Team. Todd has successfully defended misclassification claims of all sizes, obtaining outright dismissals in numerous class actions and reaching settlements as low as zero dollars, often based on programs Todd had developed for the same client. Todd advocates a proactive review of contracts with independent contractors, staffing agencies, and other providers of non-employee labor. Steps can almost always be taken to reduce risk and create the facts needed to successfully defend a classification dispute.

Todd’s award-winning blog, WhoIsMyEmployee.com explores issues related to independent contractor misclassification and joint employment, providing valuable information about risks, tips, trends and developments (sprinkled with vaguely related classic rock and ’80s pop culture references).

Todd also serves as a trusted advisor to clients on a broad range of complex employment law issues, including background checks, hiring, disability and accommodation issues, medical leaves, discipline, terminations and reductions in force. Todd closely follows the maze of federal, state and local background check laws and has designed nationwide background check compliance programs for large national employers. His approach to employment law is to help companies solve legal problems in a way that makes business sense. He strives to be responsive, attentive, and proactive, and he aims to partner with his clients in understanding their business needs and helping them to anticipate problems before they arise.

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Todd is certified as a specialist in Labor & Employment Law by the Ohio State Bar Association, and he has been recognized in Chambers USA, The Legal 500, and as an Ohio “Super Lawyer.” He speaks around the country on employment law issues, especially independent contractor and joint employment matters, and he has been consulted and quoted many times by national media sources on gig economy, independent contractor and joint employment issues, including on CNN, Bloomberg, and others.

Todd also maintains a sports and entertainment practice, advising his clients on a broad range of topics, including protecting private and confidential information, hiring domestic help, negotiating documentary and other TV deals, negotiating player contracts, protecting digital assets, and serving as a trusted advisor. His roster of clients have included a major league baseball team, a professional soccer league, a Cy Young Award winner, an NBA champion, a perennial NHL all-star, player agents and advisors, a magician, an Apollo 11 astronaut, and various other professional athletes, executives, and entertainers. Before entering law, Todd completed a research thesis titled “The Effect of Financial Reward on Intrinsic Motivation: A Study of Long-Term Contracts in Major League Baseball.” before entering the practice of law. His study received national press coverage for its conclusion that players elevate their motivation and performance levels the year before they enter the free agent market. Todd serves on the board of directors for the Society for American Baseball Research (SABR), where he has been a member since 2000 and a board member since 2011.

Experience

Employment Law
  • Team Leader and founder of BakerHostetler’s Contingent Workforce Practice Team, which takes a multidisciplinary approach toward advising employers on the use of non-employee workers, including independent contractors, gig workers, staffing agencies and other contract labor The team's multifaceted approach includes evaluation of employment, benefit, and tax issues, Affordable Care Act compliance, industry-specific regulations, and the constantly evolving federal, state, and local tests and standards. Actively works with national and regional employers to evaluate and advise on their use of independent contractors and regularly reviews master service agreements with staffing agencies. Recent risk assessment projects include company-wide analysis for a national insurance company and an international provider of audio and infotainment equipment.
  • Multiple ongoing independent contractor and joint employment projects, including proactive risk assessment and redrafting agreements, for nationwide clients across various industries, including insurance, electronics, manufacturing, property management and retail.
  • Obtained dismissal of a California class action alleging independent contractor misclassification and California Labor Code violations, with zero dollars paid to the plaintiffs. Dismissal resulted directly from changes to client’s independent contractor program that Todd had drafted a year earlier.
  • Secured a published opinion letter from the Department of Labor (DOL) on behalf of a client that wished to pay consultants on a per-project basis, with the per-project fee divided into biweekly installments. The DOL issued a response that clarified the legal issue at stake and allowed the client to move forward with its plans, confident that it was in compliance with the law.
  • Won motion to dismiss putative class action filed by independent contractors alleging violations of the Fair Credit Reporting Act. Todd prevailed by demonstrating to the federal court that the FCRA provisions did not apply, despite published guidance to the contrary by the Federal Trade Commission and despite claims by the contractors that they should be permitted to adduce evidence to try to show that they were employees.
  • Obtained reversal of independent contractor misclassification finding by New York State Department of Labor, after $420,000 in back assessments had been issued against the client, stemming from a filing for unemployment benefits by a single individual. Todd was hired three weeks before the hearing, after previous counsel had told the client that the case was unwinnable.
  • Background checks: Regularly advises employers and consumer reporting agencies on nationwide background check requirements under the Fair Credit Reporting Act and state and local laws, including ban-the-box developments. Advises clients on best practices in light of the patchwork of federal, state and local laws and the EEOC's current enforcement priorities and its disparate impact theory.
  • Successfully defended a multistate retailer in a putative class action alleging willful violations of credit card truncation requirements in the Fair Credit Reporting Act. Novel strategic approach and defense strategy resulted in an extremely favorable settlement for the client and avoidance of class certification.
  • Successfully avoided class certification and obtained summary judgment for a manufacturing client in an FLSA misclassification case alleging failure to pay overtime to shift supervisors.
  • Drafted arbitration agreements, employment agreements and master services agreements for clients across multiple industries and in multiple states. 
  • Fully admitted to practice in 10 federal and state jurisdictions; has litigated employment disputes in more than 20 states, including pro hac vice admissions.
Professional Sports

Team & League Representation

  • Drafted and negotiated player contracts for a Major League Baseball team.
  • Representation of Society for American Baseball Research (SABR) in broad range of legal matters, including drafting and negotiating business contracts with various industry partners, employment, and intellectual property protection.
  • Drafted a contract covering SABR's development of the SABR Defensive Index for use in the Rawlings Gold Glove Awards balloting process.
  • Drafted player agreements for eSports team.
  • Drafted a uniform player contract for a professional soccer league (now defunct).

Athlete, Entertainer & Other Individual Representation

Representation of numerous professional athletes and other sports industry clients in various personal and business matters, including personal services agreements, confidentiality agreements and data security. Examples include:

  • Representation of Cy Young Award winning baseball player in iPhone data breach and related investigation and data privacy protection strategies;
  • Representation of retired NHL star victimized by wine futures fraud scheme; recovered several hundred thousand dollars;
  • Representation of NBA champion player in drafting personal services and confidentiality agreement;
  • Representation of MLB All-Star in numerous personal ventures, including the hiring of a personal assistant, confidentiality agreements, estate planning, and personal business ventures;
  • Representation of MLB player and family members on business ventures, including contracts, intellectual property protections, and media negotiations;
  • Representation of MLB team executive in personal real estate transaction;
  • Representation of baseball trainer and inventor on patent matters.
  • Representation of Apollo 11 astronaut in negotiations for feature film documentary;
  • Representation of professional magician in documentary TV deal and various other endeavors.
     

Recognitions and Memberships

Recognitions

  • The Legal 500 United States (2021)
    • Recommended in Workplace and Employment Counseling
  • Chambers USA: Labor & Employment in Ohio (2011 to 2012, 2015 to 2022)
    • Band 3 (2022), Band 4 (2015 to 2021), Up & Coming (2011 to 2012)
  • Ohio State Bar Association: Certified Specialist in Labor and Employment Law
  • Ohio "Super Lawyer" (2013 to 2020)
    • Ohio Super Lawyers "Rising Star" (2011 to 2012)
  • The Best Lawyers in America® (2021)
    • Ohio: Litigation - Labor and Employment

Memberships

  • Society for American Baseball Research (SABR) (2000 to present)
    • Board of Directors, Secretary (2011 to present)
  • American Bar Association
  • Ohio State Bar Association
  • Cleveland Metropolitan Bar Association

Blog Posts

Community

  • Conservancy for Cuyahoga Valley National Park: Human Resources Committee

Admissions

  • U.S. Court of Appeals, Sixth Circuit, 1998
  • U.S. Court of Appeals, Ninth Circuit, 2012
  • U.S. District Court, Eastern District of Michigan, 2010
  • U.S. District Court, Southern District of Ohio, 2008
  • U.S. District Court, Northern District of Texas, 2006
  • U.S. District Court, Southern District of Indiana, 2006
  • U.S. District Court, Northern District of Illinois, 2005
  • U.S. District Court, Eastern District of Wisconsin, 2002
  • U.S. District Court, Northern District of Ohio, 1998
  • Ohio

Education

  • J.D., University of Michigan Law School, 1997, cum laude
  • B.A., University of Michigan, 1993

Blog

In The Blogs

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The Bargaining Table
Joint Employer Test Must Consider ‘Reserved or Indirect Control,' D.C. Circuit Rules
By Todd H. Lebowitz
August 1, 2022
In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released.It’sa two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub. On Friday, the D.C...
Read More ->
Employment Law Spotlight
Not Your Godfather's Smackdown: Joint Employer Test Must Consider ‘Reserved or Indirect Control,' D.C. Circuit Rules
By Todd H. Lebowitz
August 1, 2022
In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released.It’sa two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub. On Friday, the D.C...
Read More ->
Employment Law Spotlight
New DC Law Protects Marijuana Users from Adverse Employment Actions
By Todd H. Lebowitz, Katherine Ondeck Kent
July 25, 2022
Washington, D.C., employers will soon be prohibited from disciplining, terminating or refusing to hire individuals based on marijuana use or a positive marijuana test. The Cannabis Employment Protections Amendment Act of 2022 will take...
Read More ->
Employment Class Action Blog
Dead End for Class Certification? Ninth Circuit Provides Roadmap for Defending Independent Contractor Misclassification Class Claims
By Matthew J. Goodman, Todd H. Lebowitz
July 8, 2022
For businesses using independent contractor vendors, misclassification claims are usually well-suited for class certification. A plaintiff’s path toward certifying a class can be relatively smooth when all vendors of a particular kind are...
Read More ->
Employment Law Spotlight
Against the Odds: Did a Court of Appeals Just Grant Independent Contractors the Right to Strike and Organize?
By Todd H. Lebowitz
April 11, 2022
On June 4, 1923, jockey Frank Hayes rode 20-1 long shot Sweet Kiss to victory at Belmont Park. While that seems impressive, what made the win even more memorable is that at some point during the race, poor Frank died. He somehow stayed on...
Read More ->