Todd H. Lebowitz

Partner

Cleveland
T +1.216.861.7899
F +1.216.696.0740

"[Todd] has a great legal mind and his customer service skills are phenomenal - he always follows up."

— Chambers USA 2015

Overview

Todd Lebowitz has a practice niche handling independent contractor misclassification disputes and joint employment issues. He has successfully represented clients in defending claims of misclassification, obtaining outright dismissals in class actions and settlements as low as zero dollars, based on programs he has developed for clients. Todd advocates that companies using independent contractors take a proactive approach to evaluating their contracts and practices. There are almost always facts that can be changed to protect companies against misclassification challenges without sacrificing business needs. Todd’s clients range from Fortune 500 companies to regional and mid-size businesses, and his proactive approach includes designing and implementing customized strategies for reducing misclassification risks — but in a way that makes business sense. Todd particularly likes the challenge of designing multi-state independent contractor programs, taking advantage of his understanding of the myriad state and federal tests for determining who is an employee. Todd’s 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 maintains a national employment litigation practice and also practices in the area of sports law. He has litigated employment discrimination cases in more than 20 states, and he regularly advises clients on resolving complex, day-to-day personnel problems covering the full scope of employment-related concerns, including background checks, hiring, disability issues, medical leaves, FMLA, discipline, terminations and reductions in force. His approach to employment law is to help companies solve legal problems in a way that makes business sense.

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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 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 independent contractor and joint employment issues, including on CNN, Bloomberg, and others. In the field of professional sports, 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 currently serves on the board of directors for the Society for American Baseball Research (SABR), where he has been a member since 2000.

Todd is the leader of BakerHostetler's Contingent Workforce team.

Select Experience

Employment Law
  • Independent Contractor Misclassification Issues: Co-founder of multidisciplinary task force to advise employers on the use of non-employee workers, including independent contractors and staffing agencies. Multidisciplinary approach includes evaluation of employment, benefit, and tax issues, including Affordable Care Act compliance, as well as analysis using the multitude of federal and state legal 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.
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.

Athlete & Other Individual Representation

  • Representation of MLB 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.
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Experience

Employment Law
  • Independent Contractor Misclassification and Joint Employment Issues: Co-founder of multidisciplinary task force to advise employers on the use of nonemployee workers, including independent contractors, staffing agencies and vendor labor. Multidisciplinary approach includes evaluation of employment, benefit and tax issues, including Affordable Care Act compliance, as well as analysis using the multitude of federal and state legal standards. Actively works with national and regional employers to evaluate and advise on their use of independent contractors and vendor-supplier workers; regularly reviews master service agreements with staffing agencies; and helps clients proactively reduce risks. 
  • 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 & Other Individual Representation

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

  • Representation of MLB 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 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.

Recognitions and Memberships

Recognitions

  • Chambers USA: Labor & Employment in Ohio (2011 to 2012 & 2015 to 2020)
    • Band 4 (2015 to 2020), 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

Emerging Issues

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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Employment Law Spotlight
Whaddaya Call It? DOL Proposes New Independent Contractor Test
By Todd H. Lebowitz
September 23, 2020
Soda or pop? Pill bug or roly poly? What you call things depends on where you live. In 2014, the New York Times published this 25-question dialect quiz that will tell you, with startling accuracy, where you or your parents are from. The...
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Employment Law Spotlight
Joint Employment Test Gets Muddied Again: Federal Court Rejects New DOL Test
By Todd H. Lebowitz
September 9, 2020
Muddy Waters is how you want your blues, not how you want your laws. A federal district judge in New York yesterday kicked up a lot of mud in an area of the law that had finally seen some clarity – the definition of “joint employment.” Now...
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Employment Law Spotlight
Something Is Rotten in the State of California? Ride Share Misclassification Ruling Is Merely Act I
By Todd H. Lebowitz
August 13, 2020
“To be or not to be” are the opening words of a soliloquy by Prince Hamlet. With that, I have exhausted what I remember about Shakespearean plays without consulting Wikipedia. Having consulted Wikipedia, I can confirm that this soliloquy...
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Employment Law Spotlight
Gator in Your Basement? Nope, That's Just the NLRB Sharpening Its Joint Employer Test
By Todd H. Lebowitz
March 3, 2020
“Be careful as you go down the stairs, officer. An alligator lives in my basement.” Police in Madison Township, Ohio, last week found a 5-foot gator penned in the basement of a family home. The family said that “Alli” was a pet they’ve...
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Employment Law Spotlight
Bring Forth the Tiger-Dogs! Here's a Quick Status Check on the Challenges to California's New Independent Contractor Law
By Todd H. Lebowitz
February 10, 2020
When outside forces pose a threat to people’s livelihood, people will go to great lengths to fight back. For example, when monkeys began ravaging the crops of a farmer in Karnataka, India, the imaginitive farmer painted his dog to look...
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