Eric Brant v. Schneider National Inc. ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2122
ERIC R. BRANT,
Plaintiff-Appellant,
v.
SCHNEIDER NATIONAL, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 20-cv-01049-WCG — William C. Griesbach, Judge.
____________________
ARGUED JANUARY 21, 2022 — DECIDED AUGUST 3, 2022
____________________
Before HAMILTON and KIRSCH, Circuit Judges. *
HAMILTON, Circuit Judge. Plaintiff-appellant Eric Brant ap-
peals the district court’s dismissal of his claims against
Schneider National, Inc. and its two subsidiaries (together,
* Circuit Judge Kanne was a member of the panel that heard argument
in this case but died on June 16, 2022. He did not participate in the decision
of this case, which is being resolved under 28 U.S.C. § 46(d) by a quorum
of the panel.
2 No. 21-2122
“Schneider”). Schneider is engaged in the business of hauling
freight and hires some drivers as employees, while bringing
others on as purported independent contractors. Brant hauled
freight for Schneider under an agreement that labeled him as
an independent contractor in 2018 and 2019. Brant came to
believe, however, that Schneider was engaged in a scheme to
misclassify his employment status, and he filed this suit.
Brant claims that Schneider (i) violated minimum wage re-
quirements under the federal Fair Labor Standards Act and
Wisconsin law; (ii) unjustly enriched itself under Wisconsin
law; and (iii) violated federal Truth-in-Leasing regulations.
The district court granted Schneider’s motion to dismiss all
claims on the pleadings. Brant appeals.
We reverse and remand for further proceedings. The dis-
trict court erred by giving decisive effect to the terms of
Schneider’s contracts. In many areas of the law, the district
court’s approach would be sound, but not under the Fair La-
bor Standards Act. As explained below, in determining
whether a person is an employee under the Act, what matters
is the economic reality of the working relationship, not neces-
sarily the terms of a written contract. “The FLSA is designed
to defeat rather than implement contractual arrangements.”
Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1544−45 (7th Cir.
1987) (Easterbrook, J., concurring). Brant’s allegations about
the economic reality of his working relationship with Schnei-
der state a viable claim under the FLSA, as well as under the
other laws he relies upon.
I. Factual and Procedural Background
Schneider is a major motor carrier and in 2019 oversaw
thousands of trucks in its freight business. Schneider hires
No. 21-2122 3
most of its drivers as employees, but in 2020 it designated
more than a quarter of its drivers as independent contractors.
In the industry, such contractors are referred to as “owner-
operators.” They frequently own their own trucks and drive
for carriers as they choose. Owning a truck for hauling freight
requires a significant capital investment, and Schneider
sought to recruit drivers who had not independently made
that investment by leasing Schneider’s trucks to some drivers
who would then drive for Schneider under contract. Brant be-
came an “owner-operator” under such an arrangement with
Schneider, and he worked for the carrier from December 2018
to August 2019.
Brant’s relationship with Schneider involved two related
contracts: (i) the Lease, under which he leased a relatively new
Freightliner truck from Schneider; and (ii) the Operating
Agreement, under which Brant would lease the truck back to
Schneider and receive 65% of the gross revenue for shipments
he hauled for Schneider. The Operating Agreement pur-
ported to give Brant substantial control over his work. It also
included provisions permitting him to haul loads for other
carriers and to hire other drivers to assist if he desired. He was
also responsible for all operating expenses under this con-
tract. Schneider retained sole discretion, however, to deny
him permission to haul loads for other carriers. The Lease also
depended in part on the continuation of the Operating Agree-
ment. Termination of the Operating Agreement would trigger
a default on the Lease if Brant could not secure Schneider’s
permission to enter a new agreement with Schneider or an-
other carrier. Defaulting on the Lease would be serious.
Schneider reserved the right on default to take measures such
as declaring as due the remaining sums for the entire two-
year term of the Lease.
4 No. 21-2122
Brant and Schneider provide starkly different accounts of
Brant’s actual work. Brant alleges that he struggled to haul
enough profitable shipments to keep ahead of his operating
costs and charges from Schneider. In his account, Brant was
not able to exercise his independent expertise to increase his
margins. He simply had to say yes to as many loads from
Schneider as he could, even when they were highly undesira-
ble. For example, Brant claims that during the week of May 2,
2019, he drove over 3,000 miles hauling five shipments for
Schneider, and because of the expenses that Schneider de-
ducted from his pay he received zero net pay. In Brant’s view,
the Operating Agreement and Lease were designed to mis-
classify him as an independent contractor, while Schneider
controlled him in the manner of an employee without respect-
ing his rights under federal and state employment laws.
Brant claims that at one point he sought to terminate the
Operating Agreement and haul freight in his leased truck for
another carrier. He alleges that Schneider demanded such a
large security deposit to allow him to haul for another carrier
that he was unable to afford it. Schneider eventually seized
Brant’s truck when he later terminated the Operating Agree-
ment and could not pay the additional security deposit.
Schneider sees things differently, relying on the terms of
the written contracts. Schneider explains that it extended
credit to Brant that allowed him to lease a truck and operate
his own independent business. In Schneider’s view, Brant
freely engaged to haul freight for the carrier and was free to
accept or reject the shipments he was offered while retaining
total operational control of his business. To Schneider, the Op-
erating Agreement and Lease show that Brant was an inde-
pendent contractor whom Schneider enabled to manage his
No. 21-2122 5
own operations, to hire additional drivers, or to haul loads for
other carriers.
Brant sued Schneider in July 2020, claiming violations of
federal and state law. First, Brant alleged that Schneider failed
to pay him the federal minimum wage that he was due as an
employee under the FLSA. Second, he alleged that Schneider
also failed to pay him the minimum wage required for an em-
ployee under Wisconsin law. Third, Brant alleged that his
contracts with Schneider were void as unconscionable, and
that Schneider unjustly enriched itself by retaining certain
money deducted from his pay in violation of Wisconsin law.
Fourth, Brant alleged that Schneider violated certain Truth-
in-Leasing regulations requiring the disclosure of information
to owner-operators, giving him a cause of action under 49
U.S.C. § 14704(a)(2).
Before resolving whether Brant could proceed on his
FLSA claim as a collective action under 29 U.S.C. § 216(b), the
district court granted Schneider’s motion to dismiss on the
pleadings. Brant v. Schneider Nat’l, Inc., 2021 WL 179597 (E.D.
Wis. Jan. 19, 2021). The court gave Brant leave to amend and
instructions on deficiencies he needed to cure if he could.
Brant filed an amended complaint, but the district court found
that he had not cured the problems with his complaint and
entered judgment against him, dismissing the case with prej-
udice.
II. Analysis
We review de novo a district court’s dismissal for failure
to state a claim under Rule 12(b)(6). Sloan v. American Brain
Tumor Ass’n, 901 F.3d 891, 894 (7th Cir. 2018). In evaluating
the complaint’s sufficiency, we accept as true all well-pled
6 No. 21-2122
facts and make any reasonable inferences in the non-movant’s
favor. Id. at 893. Dismissal under Rule 12(b)(6) is appropriate
if the complaint fails to provide “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A plaintiff needs to provide
“enough detail to give the defendant fair notice of what the
claim is and the grounds upon which it rests, and, through his
allegations, show that it is plausible, rather than merely spec-
ulative, that he is entitled to relief.” Reger Development, LLC v.
National City Bank, 592 F.3d 759, 764 (7th Cir. 2010), quoting
Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). If the
complaint is plausible, the plaintiff “receives the benefit of im-
agination, so long as the hypotheses are consistent with the
complaint.” Chapman v. Yellow Cab Cooperative, 875 F.3d 846,
848 (7th Cir. 2017), quoting Twombly, 550 U.S. at 563. We ad-
dress Brant’s claims in turn.
A. FLSA Claim
The Fair Labor Standards Act provides: “Every employer
shall pay to each of his employees who in any workweek is
engaged in commerce” the federal minimum wage, which is
now $7.25 per hour. See 29 U.S.C. § 206(a). Employers who
violate § 206(a) are liable to their employees for unpaid wages
and may also be liable for liquidated damages. See §§ 216(b)
& 260. There is no question that Brant engaged in commercial
activities covered by the Act. Thus, to state a claim for viola-
tion of the FLSA’s minimum wage provisions, he must allege
facts giving rise to a plausible inference that he was an em-
ployee within the meaning of the Act and that he was under-
paid for at least one workweek. Hirst v. SkyWest, Inc., 910 F.3d
961, 966 (7th Cir. 2018).
No. 21-2122 7
Brant satisfies the latter point easily. For example, he al-
leges that during the week of May 2, 2019 he drove over 3,000
miles to deliver five shipments, but received no net pay for
the week. Because Brant’s complaint allows a plausible infer-
ence that he was underpaid during at least one workweek, he
has stated a claim for minimum wage under the FLSA if we
can plausibly infer from his complaint that he was an em-
ployee covered by the Act.
Under the FLSA, and with certain exceptions not at issue
here, the definitions of key relevant terms are both broad and
circular:
(d) “Employer” includes any person acting di-
rectly or indirectly in the interest of an employer
in relation to an employee….
(e)(1) … the term “employee” means any indi-
vidual employed by an employer.
…
(g) “Employ” includes to suffer or permit to
work.
29 U.S.C. § 203.
The Supreme Court noted in 1947 that these definitions in
the FLSA are broad and do not clarify how to address “prob-
lems as to the limits of the employer-employee relationship
under the Act.” Rutherford Food Corp. v. McComb, 331 U.S. 722,
728 (1947); see also United States v. Rosenwasser, 323 U.S. 360,
362 (1945) (“A broader or more comprehensive coverage of
employees within the stated categories would be difficult to
frame.”). The common law also provides only limited guid-
ance in marking the outer reaches of the FLSA’s coverage. The
8 No. 21-2122
Act was designed to reach working relationships that would
not have qualified as employer-employee under the common
law. Walling v. Portland Terminal Co., 330 U.S. 148, 150–51
(1947). Congress designed the FLSA to reshape the economy
to avoid the economic and social ills caused by low pay and
long hours for workers, and the Act requires a different inter-
pretation of its broader terms. See Fair Labor Standards Act of
1938, Pub. L. No. 75-718, § 2(a), 52 Stat. 1060, 1060; Rutherford
Food, 331 U.S. at 727.
If we looked only at the face of Brant’s contracts with
Schneider, we would agree with the district court that Brant
could not be deemed an employee. It is well established, how-
ever, that the terms of a contract do not control the employer-
employee issue under the Act. We look instead to the “eco-
nomic reality of the working relationship” to determine who
is an employee covered by the FLSA. Simpkins v. DuPage Hous-
ing Authority, 893 F.3d 962, 964 (7th Cir. 2018); see also Ruther-
ford Food, 331 U.S. at 729 (use of “independent contractor” la-
bel does not remove FLSA protections when work “follows
the usual path of an employee”); Lauritzen, 835 F.2d at 1544–
45 (Easterbrook, J., concurring) (“The FLSA is designed to de-
feat rather than implement contractual arrangements. If em-
ployees voluntarily contract to accept $2.00 per hour, the
agreement is ineffectual.”). Workers are employees under the
FLSA when “as a matter of economic reality [they] are de-
pendent upon the business to which they render service.”
Simpkins, 893 F.3d at 964, quoting Lauritzen, 835 F.2d at 1534.
This court generally applies the six-factor test set out in
Lauritzen to determine whether economic reality indicates a
worker is an employee. Simpkins, 893 F.3d at 964; Lauritzen,
835 F.2d at 1534–35. The Lauritzen factors are:
No. 21-2122 9
1) the nature and degree of the alleged em-
ployer’s control as to the manner in which
the work is to be performed;
2) the alleged employee’s opportunity for
profit or loss depending upon his manage-
rial skill;
3) the alleged employee’s investment in equip-
ment or materials required for his task, or his
employment of workers;
4) whether the service rendered requires a spe-
cial skill;
5) the degree of permanency and duration of
the working relationship;
6) the extent to which the service rendered is
an integral part of the alleged employer’s
business.
835 F.2d at 1535. 1
No single factor is necessarily controlling—the ultimate
conclusion on employee status is made by examining the to-
tality of the circumstances. Simpkins, 893 F.3d at 964. We con-
sider throughout our review of these factors the degree to
which Brant was dependent on Schneider, with greater
1 Other circuits apply similar multi-factor tests to plot the boundaries
of employer-employee relationships under the FLSA. See, e.g., Acosta v.
Paragon Contractors Corp., 884 F.3d 1225, 1235 (10th Cir. 2018); Kerr v. Mar-
shall Univ. Bd. of Governors, 824 F.3d 62, 83 (4th Cir. 2016); Glatt v. Fox
Searchlight Pictures, Inc., 811 F.3d 528, 536–37 (2d Cir. 2016).
10 No. 21-2122
dependence weighing in favor of an employer-employee re-
lationship. Lauritzen, 835 F.2d at 1538.
1. Control
First, we consider the nature and degree of Schneider’s
control over the way that Brant performed his work. This con-
trol inquiry has roots far deeper than the other Lauritzen fac-
tors and originates in the common-law test to find the master-
servant relationship giving rise to respondeat superior liabil-
ity. See Oliver Wendell Holmes, Jr., Agency, 5 Harv. L. Rev. 1,
14–15 (1891) (noting that extent of employer’s control is logi-
cal limit for liability for actions of servant); Seymour D.
Thompson, Respondeat Superior, 5 S. L. Rev. (New Series) 238,
251–52 (1879) (defining limit of master/employer relationship
by right to control actions of servant/employee). One way to
understand this factor is to ask whether the worker has con-
trol over such a meaningful portion of his labor that he oper-
ates as a separate economic entity, i.e., as an independent con-
tractor. See Parrish v. Premier Directional Drilling, L.P., 917 F.3d
369, 381 (5th Cir. 2019).
The Operating Agreement provided that the “Owner-Op-
erator shall determine the manner, means and methods of
performance of all Freight Transportation Services.” The
Agreement included a variety of provisions purporting to
grant the driver broad authority over his or her own work. It
said Brant was free to choose which shipments to accept or
reject, and even whether to take any loads at all. The Agree-
ment permitted him to hire drivers to take some or all respon-
sibility for a shipment. Brant was also required to bring his
own truck, to select routes, to manage his schedule, to weigh
and inspect shipments, and to pay for operating costs like fuel
and taxes. Schneider argues that these terms in the Agreement
No. 21-2122 11
show that Brant maintained a high degree of control over his
work, consistent with his classification as an independent
contractor.
But according to Brant’s allegations, these contractual pro-
visions did not reflect the economic reality of his work under
Schneider and are not dispositive. See Simpkins, 893 F.3d at
964; Lauritzen, 835 F.2d at 1545 (Easterbrook, J., concurring).
Brant alleges that Schneider “exercised complete control over
all meaningful aspects of the transportation business in which
Plaintiff … worked.” As we will see, Brant alleges he was sub-
ject to significant monitoring and had little ability to exercise
the limited rights for operational control of his work granted
on the face of his contracts with Schneider. This alleged lack
of genuine control over the conduct of his work weighs in fa-
vor of finding Brant was an employee.
Control Over Conduct: As a freight carrier, Schneider con-
trolled advertising, billing, and negotiation with customers
over the terms of shipment contracts. Brant alleges that
Schneider’s control also extended into the minutiae of how he
worked and delivered his loads. Brant alleges he was held to
the same operational standards and policies as employee-
drivers for Schneider, including requirements for “personal
appearance and demeanor,” “how to pick up and deliver
loads,” and “how to hire extra help to assist with loading and
unloading.” Allegations that a purported employer required
workers to adhere to such formal policies and procedures can
suggest employee status. See Schultz v. Capital Int’l Security,
Inc., 466 F.3d 298, 307 (4th Cir. 2006) (reversing defense ver-
dict after bench trial; undisputed facts, including requirement
that workers adhere to detailed standard operating
12 No. 21-2122
procedures, showed employee status even when workers oc-
casionally exercised independent judgment).
Monitoring: Schneider also retained the right to gather re-
motely and to monitor huge quantities of data about how
drivers conducted their work, including: (i) “Owner-Opera-
tor’s speed, hard braking incidents, collisions, and critical
driving events;” (ii) “hours of service;” (iii) “engine opera-
tional data;” and (iv) “any other telematics data which may
be captured.” The Agreement required Brant to consent to al-
low Schneider to use this data “for any reason [Schneider]
deems advisable,” and Schneider had the right to terminate
the Agreement immediately for any traffic law violation iden-
tified. Brant alleges that Schneider did not permit him to drive
over 70 miles per hour even when the posted speed limit was
higher and that he was subject to discipline if he failed to com-
ply. This allegedly high degree of scrutiny into the fine details
of the driver’s operations, along with the constant threat of
termination for non-compliance, weighs in favor of status as
an employee rather than an independent contractor.
Hiring Helpers: Schneider also argues that “Brant’s ability
to hire his own employees to transport freight weighs heavily
in favor of the conclusion that he exercised control over the
manner of performing his work consistent with an independ-
ent contractor.” Under the contracts, Brant could, at least in
theory, hire another driver to assist with or to take over his
shipments entirely. When a worker hires helpers to assist in a
job, that fact weighs against employee status. See United States
v. Silk, 331 U.S. 704, 719 (1947) (suggesting fact that truckers
“hire their own helpers” supports independent contractor sta-
tus under Social Security Act), abrogation in part recognized
by Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 325 (1992)
No. 21-2122 13
(noting abandonment of Silk’s emphasis on construing term
“employee” in the Social Security Act “in the light of the mis-
chief to be corrected and the end to be attained”); see also
Rutherford Food, 331 U.S. at 723 (“Decisions that define the cov-
erage of the employer-employee relationship under the Labor
and Social Security acts are persuasive in the consideration of
a similar coverage under the Fair Labor Standards Act.”). 2
The district court noted that it was “unaware” of an em-
ployer-employee relationship in which the employer would
allow the employee to contract with a third party to perform
the work. Brant v. Schneider Nat’l, Inc., 2021 WL 179597, at *4,
citing Derolf v. Risinger Bros. Transfer, Inc., 259 F. Supp. 3d 876,
880–81 (C.D. Ill. 2017) (finding terms of contracts between
truck drivers and carrier weighed against employee status).
Brant’s theoretical ability to hire help can bear little weight
if it was not consistent with the economic reality of his control
over his work. See Simpkins, 893 F.3d at 964 (reversing sum-
mary judgment deeming plaintiff to have been independent
contractor). Brant alleges he was not able to take advantage of
the ability to hire help because Schneider maintained total
control over the number, nature, and profitability of the ship-
ments offered. The Operating Agreement also authorized
Schneider to charge a variety of fees for each new driver hired
by Brant. Fixed costs were high and margins tight for drivers
under the Operating Agreement and Lease with Schneider,
2 Darden noted that Congress responded to Silk’s broad interpretation
of the term “employee” in the Social Security Act by amending the Act to
conform more closely to traditional common-law understandings of the
term. 503 U.S. at 324–25. Congress never made such changes to the FLSA,
however, and the FLSA should be interpreted more broadly based on its
more expansive definitions. Id. at 325–26.
14 No. 21-2122
and Brant alleges that “few, if any, other Drivers hired substi-
tutes” for this reason. If Brant wanted to take the financial risk
of hiring help, Schneider reserved “the right to arrange, at
Owner-Operator’s expense, to have a qualified third-party ven-
dor monitor” the new driver’s compliance with federal safety
standards. (Emphasis added.) Unlike the truckers in Silk,
Brant alleges, it was not economically feasible for him to hire
help, and his theoretical ability to do so under the contract
does not indicate he was an independent contractor. See Silk,
331 U.S. at 719.
Supply Equipment: Next, the requirement that Brant supply
his own truck, or “Equipment,” does little to establish control
over the conduct of the work because Brant leased his truck
from Schneider itself. In Wisconsin, a vehicle lease transfers
the right of possession and use of the vehicle to the lessee,
which would ordinarily afford a significant amount of control
over work done with the vehicle. See Wis. Stat. § 411.103(1)(j).
In this case, however, the Operating Agreement required
Brant to lease his truck back to Schneider in a grant of “exclu-
sive possession, control, and use” of the Equipment, in com-
pliance with 49 C.F.R. § 376.12(c)(1). According to Brant,
Schneider even controlled Brant’s maintenance schedule and
which mechanics he could use. Under Brant’s allegations, he
may have had legal responsibility for the truck but little con-
trol over it. Nor could Brant rest secure in his access to and
use of the truck. Schneider could declare the Lease in default
and trigger financial penalties triggered for, among others, (i)
a missed payment of rent or any fee under the Lease; (ii) fail-
ure to observe a condition of the Lease; or (iii) termination of
the Operating Agreement.
No. 21-2122 15
Routes and Schedules: The Operating Agreement was also
written to give Brant the ability to choose the route and sched-
ule to follow when delivering a shipment, subject to an im-
portant caveat. Shipments had to be “timely” to meet the de-
mands of Schneider’s customers. This is not surprising, given
the nature of the business. But Brant alleges that, due to
Schneider’s strict pick-up and delivery time requirements,
“As a practical matter, Drivers had no choice with respect to
the route.” The need to access fuel stops where it was possible
to purchase fuel on Schneider’s credit also constrained route
choice. We agree with the Ninth Circuit that “the ability to de-
termine a driving route is simply a freedom inherent in the
nature of the work and not determinative of the employment
relation.” Narayan v. EGL, Inc., 616 F.3d 895, 904 (9th Cir. 2010)
(internal quotation marks omitted). Yet Brant alleges that the
economics of his work constrained his route selection, so his
nominal freedom to choose a route did not determine whether
he controlled his labor.
In sum, regardless of some of the nominal rights granted
under the written contracts, Brant alleges that Schneider im-
posed detailed control over the conduct of his work and en-
forced that control by monitoring his operations and collect-
ing data on his driving. As a matter of economic reality, Brant
alleges, he could not hire additional drivers to assist or take
over shipments, did not bring his own truck to the work, and
had no real ability to exercise choice over his schedule and
routes. At least on the pleadings, this factor weighs in favor of
finding Brant was an employee of Schneider.
2. Opportunity for Profit or Loss
Next, we consider the degree to which Brant’s opportunity
for profit or loss depended upon his managerial skill.
16 No. 21-2122
Lauritzen, 835 F.2d at 1535. This question gets to the heart of
the economic relationship. In theory, under the Operating
Agreement and Lease, Brant had the ability to modulate the
kind and volume of his work with Schneider, and could even
pick up additional work from other carriers to add to his in-
come. Brant had the ability to choose which Schneider ship-
ments to haul, and in theory could select more shipments with
higher profit margins. If Schneider did not offer enough ship-
ments, or if the offered shipments were not favorable, the Op-
erating Agreement allowed Brant to use the truck he leased
from Schneider (and then back to it) to haul freight for other
carriers. That, at least, is Schneider’s theory. As we will see,
Brant alleges these theoretical rights had little impact on his
actual ability to increase profits.
Choosing Shipments: First, Brant alleges that he could not
actually exercise the right to turn down shipments to select
more profitable options. He says that Schneider offered him
shipments without providing information about what alter-
natives might be offered or when, and the risk of failing to
make enough money to cover Lease payments was too high
for Brant to risk waiting for better shipments to become avail-
able. A failure to pay rent under the Lease would trigger a
default, allowing Schneider to exercise a variety of potential
remedies, including (i) terminating the Lease and demanding
payment of the entire remaining amount of rent due for the
Lease term; or (ii) requiring the driver to purchase the truck
outright. “Drivers rarely exercised the option” to turn down
a shipment because it was too risky. Brant was dependent on
Schneider to pay his rent back to Schneider under the Lease.
And as we will see, he alleges that Schneider did not actually
permit him to drive for other carriers, giving more weight to
No. 21-2122 17
his limited ability to adjust the profitability of the shipments
he took from Schneider.
Brant further alleges that Schneider would not actually al-
low him to decline to haul particularly unprofitable ship-
ments. He alleges that Schneider “regularly required that
Drivers, including Plaintiff, move empty trailers from one lo-
cation to another at rates that did not even cover the cost of
fuel to accomplish the task.” Brant was told that Schneider
“would terminate his contract if he refused to take these as-
signments.” Schneider characterizes this arrangement as “an
ordinary feature of operating one’s own business as an inde-
pendent contractor.” We disagree because that one feature of
the parties’ relationship cannot be considered in isolation. Un-
der the overall arrangement, according to plaintiff’s allega-
tions, the single biggest determinant of his profit for a work-
week was not his managerial skill but Schneider’s choice of
loads to offer him—or to require him—to haul. As a matter of
actual practice, Brant alleges, he simply had to take the loads
that Schneider gave him as often as possible in the hopes of
staying ahead of the pay deductions, rent, and costs.
Hauling for Other Carriers: Both Schneider and the district
court emphasized Brant’s contractual ability to haul loads for
other carriers. Brant alleges he was similarly unable to take
advantage of that theoretical right. First and most simply,
Brant alleges that, despite the terms of the written contract al-
lowing it, Schneider told him that it would not permit him to
haul for other carriers. Even if Schneider changed its mind, it
retained sole discretion to deny his request to haul freight for
a different carrier. Schneider also reserved the right to arrange
for third-party monitoring of compliance with federal safety
regulations, at Brant’s expense, during trips for other carriers.
18 No. 21-2122
Even if Brant requested and received approval to haul for an-
other carrier and could have afforded to pay for third-party
monitoring of his safety compliance, he would have been re-
quired under the Agreement to remove or cover Schneider’s
identification on his truck, and to display his own or the other
carrier’s information when applicable. Brant alleges more
generally that Schneider’s system for approving and monitor-
ing trips made for other carriers was “so complex and onerous
that Drivers could not, as a practical matter, carry loads for
anyone other than” Schneider.
More generally, Brant’s exposure to potential loss through
his relationship with Schneider does not necessarily indicate
he was an independent contractor. Instead, it may show only
that Schneider “chose to place this added burden on its oper-
ators.” Usery v. Pilgrim Equipment Co., 527 F.2d 1308, 1313 (5th
Cir. 1976) (reversing summary judgment for employer and or-
dering relief for plaintiffs as employees).
In sum, Brant alleges that as a practical matter, he could
not exercise his managerial skill to increase profits by select-
ing more profitable loads or by driving for other carriers
when Schneider offered shipments with unfavorable terms.
The complaint describes a relationship under which drivers
like Brant had no realistic option other than to take the ship-
ments that Schneider offered, even when they were unprofit-
able. He could not haul for other carriers and relied on Schnei-
der to receive enough favorable shipments to make a profit.
In other words, he was dependent on Schneider to make a
profit or loss. This factor also weighs in favor of considering
Brant to have been an employee of Schneider.
No. 21-2122 19
3. The Alleged Employee's Investment
Next, we consider Brant’s potential investment in equip-
ment or materials required for hauling the shipments, or his
employment of workers. Lauritzen, 835 F.2d at 1535. As noted,
Brant alleges he did not employ workers to aid him in hauling
his shipments because he lacked control over the shipments
on offer. Schneider argues that Brant invested heavily in his
work by signing a costly lease for one of Schneider’s trucks.
His lease agreement required him to pay over $40,000 per year
in rent. Schneider points to case law suggesting that a
“driver’s investment of a vehicle is no small matter.” Herman
v. Express Sixty-Minutes Delivery Service, Inc., 161 F.3d 299, 304
(5th Cir. 1998).
Herman does not help Schneider’s argument on this point.
Although the Fifth Circuit ultimately affirmed for other rea-
sons a judgment deeming those delivery drivers to be contrac-
tors, it found on similar facts about investments that the in-
vestment factor actually favored treating them as employees.
161 F.3d at 304. Schneider is correct that Brant spent large
sums of money while hauling freight for Schneider on the
truck lease, fuel, and equipment. But this investment was
made with no up-front payment and depended entirely on
Schneider’s providing a truck, mobile computing platform,
and other equipment by extending its own credit to Brant. In
theory, perhaps, Brant could have obtained his own truck,
computer, and other necessary equipment with no involve-
ment from Schneider, but he did not do so.
Brant alleges that Schneider offered its truck leases with
no down payment required, no payments during the first
weeks of work, and no out-of-pocket investment by the driv-
ers. Even the security deposit for the truck was deferred and
20 No. 21-2122
paid in installments. Brant was totally dependent on Schnei-
der’s credit to operate, and he leased his truck back to Schnei-
der under the Operating Agreement. This level of depend-
ency on Schneider’s credit and provision of equipment
weighs in favor of employee status. See Max Trucking, LLC v.
Liberty Mutual Ins. Corp., 802 F.3d 793, 805 (6th Cir. 2015) (af-
firming judgment after trial that drivers were employees un-
der Michigan worker’s compensation law because they were
“effectively economically dependent on Max Trucking for
their ability to operate as truckers” (citation omitted)); Tobin
v. Anthony-Williams Mfg. Co., 196 F.2d 547, 548–50 (8th Cir.
1952) (reversing denial of injunction; drivers who purchased
trucks without pledging credit and paid through deductions
from earnings were employees, in part because they had “no
substantial investment in their trucks, and their ownership is
no more than nominal”).
Brant alleges that he had the means to engage in the
freight-hauling business only because Schneider advanced a
truck, equipment, and many other resources up front on
Schneider’s own credit. Even though Brant was ultimately
charged for these costs, his “disproportionately small stake in
the [trucking] operation is an indication that [his] work is not
independent of the defendants.” Lauritzen, 835 F.2d at 1537.
The investment factor also weighs in favor of employee status.
4. Special Skill
Next, we consider whether special skills required to per-
form the work may indicate independent contractor status.
Lauritzen, 835 F.2d at 1535. Excellence at any occupation can
be said to require skills, but this inquiry is focused on special-
ized skills that set the independent contractor apart from
other workers. Id. at 1537. As we noted in Lauritzen,
No. 21-2122 21
developing the specialized skill required to recognize which
pickles to pick and when was “no different from what any
good employee in any line of work must do. Skills are not the
monopoly of independent contractors.” Id.
Similarly, when assessing whether women who operated
laundry pick-up stations were employees of a laundry com-
pany, the Fifth Circuit emphasized that the basic business and
organizational skills the women displayed to operate their
stations were valuable, but “many successful employees need
these same abilities and perform similar tasks.” Pilgrim Equip-
ment, 527 F.2d at 1315. Special skills weigh in favor of inde-
pendent contractor status partly because independent con-
tractors often develop relationships with many businesses
based on expertise and can command higher rates through
superior performance. See Baker v. Flint Eng’g & Constr. Co.,
137 F.3d 1436, 1443 (10th Cir. 1998). With these concepts in
mind, an assessment of the skills Brant needed to haul freight
for Schneider is inconclusive.
Schneider leased Brant a truck that could weigh up to 40
tons with trailer and cargo and required him to provide “com-
petent professional drivers” responsible for the operation and
maintenance of the vehicle. Commercial truck-driving re-
quires skills beyond those of automobile drivers, but the skills
demanded by Schneider do not set Brant apart from the many
other commercial truck drivers whom Schneider treats as em-
ployees. Brant also alleges that he performed his work accord-
ing to the same procedures and standards required of Schnei-
der’s employee-drivers. Brant’s talents “do not change the na-
ture of [his] employment relationship with the defendants” so
as to make him an independent contractor, but they also re-
quire more training and skill than may be demanded of many
22 No. 21-2122
employees. Lauritzen, 835 F.2d at 1537. This factor is neutral at
best for Schneider’s position.
5. Permanency and Duration
Next, we ask whether the permanency and duration of the
relationship indicates an employment relationship. Lauritzen,
835 F.2d at 1535. Brant alleges that he signed Operating
Agreements that were “routinely renewed.” Schneider sent
reminder notices to drivers who failed to sign a new contract
promptly. Brant leased his truck from Schneider for 24
months, and he alleges that Schneider included this longer
lease term in the expectation that it would offer to renew the
one-year Operating Agreement after the first year.
Schneider notes that its Operating Agreements with Brant
did not automatically renew, but again, we are interested in
economic reality, not just contractual terms. See Simpkins, 893
F.3d at 964; Lauritzen, 835 F.2d at 1545 (Easterbrook, J., concur-
ring). Automatic renewal would weigh more heavily in favor
of employee status but is not required. As a matter of practice,
Brant pleads, Schneider did renew its contract with him in
January 2019. This indicates a relationship with enough dura-
tion to weigh in favor of employee status, though weakly. See
Lauritzen, 835 F.2d at 1537 (affirming summary judgment find-
ing employee status; harvesters’ temporary, exclusive work-
ing relationships that were renewed “year after year” showed
relative permanency consistent with employment); see also
Flint Engineering, 137 F.3d at 1442 (affirming summary judg-
ment finding employee status; duration and permanence of
riggers’ relationship with alleged employer indicated em-
ployee status, although riggers “rarely work for Flint more
than two months at any one time, and rarely for more than
No. 21-2122 23
three months during any twelve-month period”), citing Lau-
ritzen, 835 F.2d at 1537.
6. Integral Part of Alleged Employer's Business
The last Lauritzen factor is the degree to which Brant’s ser-
vice was integral to Schneider’s business. 835 F.2d at 1535.
Schneider is a freight hauling company, and Brant alleges that
he hauled shipments for Schneider in the same way as the
company’s employee-drivers. Schneider admits that this fac-
tor “likely weighs in Brant’s favor.” We agree.
To sum up on the FLSA claim, we consider Brant’s allega-
tions about the economic reality of his working relationship
with Schneider using the Lauritzen factors as applied to the
totality of the circumstances, and we seek to gauge whether
Brant was sufficiently controlled by and dependent upon
Schneider to come within the protection of the FLSA as an
employee. See Simpkins, 893 F.3d at 964; Lauritzen, 835 F.2d at
1538. No one Lauritzen factor is decisive, see Simpkins, 893 F.3d
at 964, but five of the six factors, including control, weigh in
favor of employee status, and the sixth is at best neutral.
Based on facts alleged in the complaint, Brant had little true
control over the conduct of his work and was totally depend-
ent on Schneider to turn a profit. He was not able to exercise
his theoretical contractual rights to hire workers or to haul for
other carriers. In short, Brant alleges facts allowing the plau-
sible inference that he was so controlled by and dependent on
Schneider that he must be considered an employee as a matter
of economic reality. Id. Because Brant also alleges he was not
paid the minimum wage during at least one workweek, he
states a legally viable claim for minimum wage under the
FLSA.
24 No. 21-2122
B. Wisconsin Minimum Wage Claim
Brant also alleges that Schneider violated Wisconsin’s
minimum wage law. Wisconsin has a longer history of regu-
lating minimum wages than the federal government. It
adopted a law requiring employers to pay a “living wage” to
women and minors in 1913. William L. Crow, History of Legis-
lative Control of Wages in Wisconsin, 16 Marq. L. Rev. 188, 192
(1932). Wisconsin has continued to update its minimum wage
regulations. See, e.g., 2015 Wis. Act 55, § 3078gm; Historical
Résumé of Minimum Wage Regulations in Wisconsin, Dep’t of
Workforce Dev., https://dwd.wisconsin.gov/er/laborstand-
ards/minwageregs.htm (last visited Aug. 3, 2022).
The district court consolidated the inquiries under the
FLSA and Wisconsin minimum wage law, but we do not be-
lieve that is appropriate here. Some states expressly indicate
that certain state minimum wage provisions should be inter-
preted to conform with the FLSA, see, e.g., Mo. Ann. Stat.
§ 290.505(4) (“this section shall be interpreted in accordance
with the Fair Labor Standards Act”), but Wisconsin has not
done so for the provisions at issue here. The closest Wisconsin
comes is to incorporate certain FLSA exemptions into the Wis-
consin definition of employee, but these provisions are not
relevant here. See Wis. Stat. § 104.01(2)(b)(3). Because the def-
initions of employer and employee are distinct under the
FLSA and Wisconsin law, and Wisconsin courts have not ad-
hered to a Lauritzen-style multi-factor test, we treat Brant’s
claim for minimum wage under Wisconsin law separately.
Relevant here, Wisconsin law requires that “Every wage
paid … by any employer to any employee” be no less than the
state minimum. See § 104.02. To avoid dismissal, Brant
needed to plead facts showing it is plausible that he was an
No. 21-2122 25
employee protected by these state minimum wage provisions
and that he was not paid the Wisconsin minimum wage dur-
ing at least one workweek. See id.; Twombly, 550 U.S. at 570.
The general Wisconsin minimum wage equals the federal
minimum wage of $7.25 per hour, and as noted above, Brant
alleges that he received less than this in compensation from
Schneider during at least one workweek. See 29 U.S.C.
§ 206(a)(1)(C); Wis. Stat. § 104.035(1)(a). He states a claim for
minimum wage under Wisconsin law if we can plausibly infer
from the pleadings that he was an employee within the mean-
ing of the Wisconsin law.
Wisconsin’s minimum wage law defines “employee”
broadly and in reference to the definition of “employer”:
(2)(a) “Employee” means every individual who
is in receipt of or is entitled to any compensation
for labor performed for any employer.
…
(3)(a) The term “employer” shall mean and in-
clude every person, firm or corporation, agent,
manager, representative, contractor, subcon-
tractor or principal, or other person having con-
trol or direction of any person employed at any
labor or responsible directly or indirectly for the
wages of another.
…
(8) “Wage” means any compensation for labor
measured by time, piece, or otherwise.
§ 104.01.
26 No. 21-2122
Wisconsin courts do not appear to have addressed
squarely the boundary between employee and independent
contractor for minimum wage purposes. In the absence of an
authoritative opinion from the Wisconsin Supreme Court, we
interpret §§ 104.01 and 104.02 as we believe the state’s highest
court would construe them. Laborers Local 236 v. Walker, 749
F.3d 628, 634 (7th Cir. 2014). As we noted in Laborers Local 236,
“Wisconsin law requires courts to ‘focus primarily on the lan-
guage of the statute,’ as Wisconsin courts ‘assume that the leg-
islature’s intent is expressed in the statutory language.’” Id.,quoting State ex rel. Kalal v. Circuit Court for Dane County, 681
N.W.2d 110, 124 (Wis. 2004). We begin our analysis with the
statutory text.3
The mention of control in the definition of “employer” in
Wisconsin’s minimum wage law is significant, though it is not
the exclusive method of showing employer status.
§ 104.01(3)(a). The text of the statute suggests that a business
can also become an employer by being responsible for a per-
son’s wages, i.e., compensation for labor. See
3 We identified only a handful of reported cases citing Wisconsin’s
minimum wage provision, and none of them address the line between em-
ployee and independent contractor. See Kieninger v. Crown Equip. Corp.,
924 N.W.2d 172 (Wis. 2019) (time spent driving between home and job site
in company vehicle); Martinez v. Department of Indus., Labor & Human Re-
lations, 478 N.W.2d 582 (Wis. 1992) (constitutionality of statute permitting
legislative supervision of administrative rules, employee status not at is-
sue); Sheaffer v. Industrial Comm’n, 139 N.W.2d 106 (Wis. 1966) (employee
status not at issue in case on counting tips as part of minimum wage);
O’Brien v. Travelers Inn, LLC, No. 2018AP1483, 2019 WL 1284828 (Wis.
App. Mar. 21, 2019) (employee status not at issue; employer violated law
by providing lodging but no pay).
No. 21-2122 27
§ 104.01(3)(a) & (8). Even so, the textual reference to “control”
links this definition to the broader sweep of Wisconsin law.
Wisconsin defines employer and employee differently un-
der its minimum wage law than in other labor and compen-
sation contexts, such as worker’s compensation, §§ 102.04 &
102.07, and unemployment insurance, § 108.02(12) & (13). The
state’s courts have interpreted the boundaries of employee
status repeatedly in these and other areas of law during the
last century and place a heavy emphasis on the alleged em-
ployer’s right to control the manner and conduct of the work.4
Based on the text of § 104.01(3)(a) and the consistent focus
on control shown across various areas of Wisconsin employ-
ment law, allegations giving rise to a plausible inference of
control over a person employed at labor are enough to plead
that a person or business is an employer under Wisconsin’s
minimum wage law. For the reasons stated above in the dis-
cussion of control under the FLSA, we believe the Wisconsin
Supreme Court would find that Brant pleads sufficient facts
to allow a plausible inference that Schneider controlled his
work as an employee. Because he plausibly alleges that
4 See Price County Tel. Co. v. Lord, 177 N.W.2d 904, 910 (Wis. 1970) (un-
employment compensation); Employers Mut. Liability Ins. Co. v. Brower, 272
N.W. 359, 361 (Wis. 1937) (tort liability), quoting Kolman v. Dvorak, 262
N.W. 622, 623 (Wis. 1935); Badger Furniture Co. v. Industrial Comm’n, 227
N.W. 288, 289 (Wis. 1929) (worker’s compensation); Miller & Rose v. Rich,
218 N.W. 716, 717 (Wis. 1928) (entertainer was contractor not covered by
worker’s compensation law because “[h]is act was not subject to direction
or control”); James v. Tobin-Sutton Co., 195 N.W. 848, 848–49 (Wis. 1923)
(tort liability); Madix v. Hochgreve Brewing Co., 143 N.W. 189, 190–91 (Wis.
1913) (workplace injury); Rieke v. Labor & Indus. Review Comm’n, No. 85-
2307, 1986 WL 217248, at *2–3 (Wis. App. Sept. 17, 1986) (worker’s com-
pensation).
28 No. 21-2122
Schneider was his employer and that he was paid less than
the Wisconsin minimum wage in at least one workweek,
Brant states a claim for minimum wage under Wisconsin
law. 5
C. Unjust Enrichment
Brant also seeks compensation for unjust enrichment un-
der Wisconsin law. Recovery for unjust enrichment is based
not on breach of a contract but on “the moral principle that
one who has received a benefit has a duty to make restitution
where retaining such a benefit would be unjust.” Sands v.
Menard, 904 N.W.2d 789, 798 (Wis. 2017), quoting Watts v.
Watts, 405 N.W.2d 303, 313 (Wis. 1987). Brant cannot recover
for unjust enrichment if he entered a valid contract with
Schneider. Carroll v. Stryker Corp., 658 F.3d 675, 682 (7th Cir.
2011). As a threshold matter, Brant must plead facts allowing
a plausible inference that the Operating Agreement and Lease
were not valid. See Twombly, 550 U.S. at 570. Then, to make a
claim for unjust enrichment, Brant must allege facts that if
5 This result is consistent with Wisconsin law addressing the em-
ployer-employee relationship between truck drivers and the companies
they work for in other legal contexts. See Star Line Trucking Corp. v. Depart-
ment of Indus., Labor & Human Relations, 325 N.W.2d 872, 878–79 (Wis. 1982)
(truck drivers who owned their trucks were not employees for unemploy-
ment compensation purposes when evidence did not show company con-
trolled the drivers); Employers Mut. Liability Ins. Co. v. Brower, 272 N.W.
359, 360–62 (Wis. 1937) (truck driver who owned his truck was not em-
ployee for tort liability purposes in part because company had almost no
right to control details of his work); Badger Furniture Co. v. Industrial
Comm’n, 227 N.W. 288, 289–90 (Wis. 1929) (salesman who owned his car
and sold goods for multiple manufacturers was not employee for worker’s
compensation purposes when company had no right to control his activi-
ties).
No. 21-2122 29
true would allow the plausible inference that (i) he conferred
a benefit on Schneider; (ii) Schneider appreciated or had
knowledge of the benefit; and (iii) Schneider accepted or re-
tained the benefit under circumstances making it inequitable
to do so. See Sands, 904 N.W.2d at 798.
1. Validity of the Contracts
Brant argues his contracts with Schneider were not valid
because they were unconscionable under Wisconsin law. Wis-
consin describes unconscionability as “the absence of mean-
ingful choice on the part of one of the parties, together with
contract terms that are unreasonably favorable to the other
party.” Wisconsin Auto Title Loans, Inc. v. Jones, 714 N.W.2d
155, 165 (Wis. 2006). To find a contract is unconscionable,
there must be a combination of procedural and substantive
unconscionability—one or the other alone is not enough. See
id. at 164; Discount Fabric House of Racine, Inc. v. Wisconsin Tel.
Co., 345 N.W.2d 417, 425 (Wis. 1984). “The more substantive
unconscionability present, the less procedural unconsciona-
bility is required, and vice versa.” Wisconsin Auto, 714 N.W.2d
at 165.
For procedural unconscionability, we consider factors that
affected the formation of the contract and whether there was
a “real and voluntary meeting of the minds.” Id. For substan-
tive unconscionability, we consider factors that bear on the
“reasonableness of the contract terms themselves.” Deminsky
v. Arlington Plastics Machinery, 657 N.W.2d 411, 422 (Wis.
2003) (citation omitted).
Brant alleges the Operating Agreement and Lease were
procedurally unconscionable because (i) on his own, he could
not understand the long, complex documents, which were
30 No. 21-2122
filled with legal terminology; (ii) Schneider prevented him
from obtaining legal advice before signing to help him under-
stand; and (iii) he was unable to negotiate the terms of the
contracts if he had understood them. In Wisconsin, the factors
to consider for procedural unconscionability include but are
not limited to:
age, education, intelligence, business acumen
and experience, relative bargaining power, who
drafted the contract, whether the terms were ex-
plained to the weaker party, whether alterations
in the printed terms would have been permitted
by the drafting party, and whether there were
alternative providers of the subject matter of the
contract.
Wisconsin Auto, 714 N.W.2d at 166.
Brant has completed high school and some community
college and online courses. The Operating Agreement and
Lease consist of 80 and 30 pages, respectively, of dense legal
prose. Brant alleges that the highly technical language of
many of the contractual provisions was beyond his ability to
understand without help and in limited time, and Schneider
did not permit him to obtain legal advice about the contracts
before signing. Even if Brant had understood the contracts,
Schneider did not permit negotiation over contractual terms.
Without significant time or legal assistance, we must assume,
it would be difficult for someone with Brant’s education and
experience to understand the terms of the Operating Agree-
ment and Lease. Brant alleges a mismatch in bargaining
power and inability to obtain an explanation of the contracts’
terms that allows a plausible inference of low-grade proce-
dural unconscionability. See 714 N.W.2d at 166.
No. 21-2122 31
Schneider argues that even if the Operating Agreement
was procedurally unconscionable when Brant entered it, he
signed a second Operating Agreement in early 2019, for
which he had ample time to prepare. This is not a persuasive
rebuttal. Brant’s Lease of the truck lasted two years. When he
signed the second Operating Agreement, he remained obli-
gated under the Lease—if it was valid. Brant might have a
weaker claim for procedural unconscionability for his second
Operating Agreement, but that does not mean he cannot state
a claim.
Next, Brant alleges that the Operating Agreement and
Lease were substantively unconscionable. Under Wisconsin
law, we assess substantive unconscionability by determining
whether the contract terms are commercially reasonable or lie
outside the limits of what is reasonable and acceptable. Wis-
consin Auto, 714 N.W.2d at 166. This inquiry is done in light of
the relevant commercial background. Id.
Brant alleges procedural unconscionability only relatively
weakly, so he must allege a greater degree of substantive un-
conscionability than he would otherwise. 714 N.W.2d at 165.
Brant points to several provisions of the Operating Agree-
ment that have the intended effect of inoculating Schneider
against potential financial harm from its own violation of fed-
eral and state employment law. The first purports, among
other things, to require Brant to “defend, indemnify and hold
harmless” Schneider for any legal liability arising out of, in
part:
(ii) compliance or non-compliance with any ap-
plicable federal, state or local employment laws;
32 No. 21-2122
(iii) any employment issues relating to Owner-Op-
erator or its agents or employees, including but
not limited to, allegations of discrimination, retali-
ation, violations of public policy, failure to pay over-
time or wages when due, failure to comply with
any applicable federal, state or local law enti-
tling eligible employees to meal and/or rest
breaks….
Owner-Operator Operating Agreement at 22, Dkt. 71-2 (em-
phases added).
Schneider crafted this indemnity provision in broad terms
that ostensibly shift to Brant himself any liability not only for
Brant’s violations of employment laws but also for its own em-
ployment law violations of any kind, even if Brant was the vic-
tim of Schneider’s violations. Enactments of Congress and the
Wisconsin legislature are not so easily defeated by such ag-
gressive drafting of a contract. See, e.g., Barrentine v. Arkansas-
Best Freight Sys., Inc., 450 U.S. 728, 740 (1981) (“FLSA rights
cannot be abridged by contract or otherwise waived because
this would ‘nullify the purposes’ of the statute and thwart the
legislative policies it was designed to effectuate); Brooklyn Sav-
ings Bank v. O’Neil, 324 U.S. 697, 704 (1945) (“It has been held
in this and other courts that a statutory right conferred on a
private party, but affecting the public interest, may not be
waived or released if such waiver or release contravenes the
statutory policy.”).
Wisconsin law enforces some indemnity provisions that
shift liability, such as for the indemnitee’s own negligence,
though these provisions must be presented conspicuously
and will be construed strictly. See Deminsky, 657 N.W.2d at
420–23 (requiring purchaser of used machinery to indemnify
No. 21-2122 33
seller for injury to purchaser’s employee). But the provisions
drafted by Schneider do more than assign risk for the indem-
nitee’s torts in a private transaction. If these provisions in
Schneider’s contracts are valid, then Schneider and other com-
panies can turn back the clock to a time when low wages, long
hours, workplace discrimination, and other forms of abuse
were subject to relatively little regulation. Furthermore,
Schneider may have little need to test the validity of these pro-
visions through enforcement if they have the intimidating ef-
fect on employees that seems to have been intended.
The Operating Agreement contains an additional provi-
sion that is triggered if Brant is determined to be an employee
of Schneider. When implemented, the Agreement would be
rescinded and Brant would immediately owe Schneider all
gross compensation received under the contract and would
relinquish any rights to balances in escrow funds then owed
to him by Schneider. Rescission of the Agreement also consti-
tutes a default on the Lease unless Schneider exercises its sole
discretion to approve the driver to enter a new contract with
another carrier within five days. As explained above, default-
ing on the Lease can lead to serious financial consequences.
These contractual provisions seem to have been designed
to evade federal and state employment law, to nullify reme-
dies under those laws, and to discourage workers from assert-
ing their rights. The legal effect of these provisions, if any,
may be limited by contract doctrines other than unconsciona-
bility. See, e.g., American Family Mut. Ins. Co. v. Cintas Corp.
No. 2, 914 N.W.2d 76, 82–83 (Wis. 2018) (suggesting Wisconsin
law may not enforce certain contract provisions that violate
public policies to “protect a weaker party against the unfair
exercise of superior bargaining power by another party”); In
34 No. 21-2122
re F.T.R., 833 N.W.2d 634, 652 (Wis. 2013) (“A contract will not
be enforced if it violates public policy.”); see also Kellogg v.
Larkin, 3 Pin. 123, 135–37 (Wis. 1851) (noting “legislative en-
actment” is best evidence of “uncertain and fluctuating” lim-
its of public policy in contract law).
Brant alleges a low degree of procedural unconscionabil-
ity due to the complexity of the contracts and Schneider’s ef-
forts to deny Brant legal counsel to review them. The infer-
ence of substantive unconscionability based on the indemnity
and rescission provisions discussed above is fairly strong. In
combination, Brant alleges more than enough for us to infer
plausibly that his contracts were so “unreasonably favorable”
to Schneider that they were void as unconscionable. Wisconsin
Auto, 714 N.W.2d at 165.
2. Unjust Enrichment
Again, to state a claim for unjust enrichment Brant must
allege facts that, if true, would allow the plausible inference
that (i) he conferred a benefit on Schneider; (ii) Schneider ap-
preciated or had knowledge of the benefit; and (iii) Schneider
accepted or retained the benefit under circumstances making
it inequitable to do so. See Sands, 904 N.W.2d at 798. Schneider
does not attempt to defend its indemnity and rescission pro-
visions, and it addresses little of the substance of Brant’s un-
conscionability argument. Brant clearly alleges that he con-
ferred a benefit on Schneider that it appreciated in the form of
the payments and paycheck deductions he made for operat-
ing expenses. He has also plausibly alleged that his contracts
with Schneider were unconscionable and void. The Operating
Agreement purported to make Brant liable for any employ-
ment law violations by Schneider while it allegedly engaged
in an unfair and illegal scheme misclassifying Brant. The
No. 21-2122 35
inference is that Schneider may have thought these in terrorem
provisions would facilitate its alleged efforts to misclassify
Brant as an independent contractor. Brant has plausibly al-
leged circumstances under which it would be inequitable for
Schneider to retain the benefit conferred.
D. Truth-in-Leasing Claim
Finally, Brant also alleges that Schneider violated several
federal regulations that can support a private right of action.
The Department of Transportation regulates the activities of
motor carriers like Schneider under the ICC Termination Act
of 1995, Pub. L. No. 104-88, § 13501, 109 Stat. 803, 859. Within
the Department, the Federal Motor Carrier Safety Admin-
istration enforces regulations that impose restrictions on lease
agreements between motor carriers and owner-operators of
trucks. These rules are known as the Truth-in-Leasing regula-
tions. See 49 C.F.R. Part 376; see also Lease and Interchange of
Vehicles, 43 Fed. Reg. 29812, 29812 (July 11, 1978) (identifying
promotion of “truth-in-leasing” as one objective). Schneider
provided a truck to Brant under the Lease, and through the
Operating Agreement, Brant then leased that truck back to
Schneider for use during shipments. Brant’s Truth-in-Leasing
claims are based on both the Lease through which he obtained
his truck and the Operating Agreement through which he
leased it back to Schneider.
The Truth-in-Leasing regulations are designed “to pro-
mote full disclosure between the carrier and owner-operator
in the leasing contract, to promote the stability and economic
welfare of the independent trucker segment of the motor car-
rier industry, and to eliminate or reduce opportunities for
skimming and other illegal practices.” 43 Fed. Reg. at 29812.
Brant alleges that Schneider violated three of these regulatory
36 No. 21-2122
requirements, including the requirement (i) to make available
certain documentation used to calculate Brant’s pay; (ii) to
provide documentation supporting deductions from his pay;
and (iii) to specify the amount of any escrow fund required.
See 49 C.F.R. § 376.12(g), (h), & (k) (2020).
Brant can sue Schneider for damages from these potential
regulatory violations under 49 U.S.C. § 14704(a)(2). See
Owner-Operator Independent Drivers Ass’n v. Mayflower Transit,
LLC, 615 F.3d 790, 791–92 (7th Cir. 2010) (considering a suit
under § 14704(a)(2) for alleged chargeback violations). To
state a claim, Brant must allege facts from which we can plau-
sibly infer that Schneider violated one or more of the regula-
tions and that he was damaged as a result. See § 14704(a)(2).
First, Brant alleges that Schneider violated 49 C.F.R.
§ 376.12(g) by failing to disclose that a copy of the rated
freight bills would be available prior to settlement for his
shipments. Section 376.12(g) provides, in relevant part:
When a lessor’s revenue is based on a percent-
age of the gross revenue for a shipment, the
lease must specify that the authorized carrier
will give the lessor, before or at the time of settle-
ment, a copy of the rated freight bill, or, in the case
of contract carriers, any other form of documenta-
tion actually used for a shipment containing the
same information that would appear on a rated
freight bill.
(Emphases added.) This disclosure requirement protects
owner-operators from unscrupulous carriers who might be
tempted to hide such information, to underpay for the ship-
ment, and to pocket the difference. Without the requirement
No. 21-2122 37
that this information be made available before settlement,
drivers like Brant might never know if they were being un-
derpaid.
Brant alleges that the Operating Agreement—which con-
tains the relevant lease provisions for this claim—did not dis-
close that this information would be available at or before set-
tlement as required. His allegations add up to a violation of
the regulation. However, Brant must also allege damages to
state a claim under § 14704(a)(2).
Schneider argues that Brant fails to allege that any poten-
tial Truth-in-Leasing violations caused damages. In support
of this argument against Brant’s first Truth-in-Leasing claim,
Schneider points to Stampley v. Altom Transport, Inc., 958 F.3d
580 (7th Cir. 2020). But Stampley was quite different as to both
its facts and its procedural posture. In Stampley, the driver re-
ceived computer-generated summaries of the rated freight
bill when he was paid. Id. at 587. In contrast, Brant does not
allege that he actually received these documents. In Stampley,
the driver complained that his carrier did not include certain
tank-wash charges billed to the customer in these computer-
generated summaries. However, the lease he entered with his
carrier included a provision waiving “all rights to contest the
validity or accuracy of any/all payments” after 30 days. Be-
cause he did not contest any payments within 30 days, or re-
quest documentation to verify the computer-generated sum-
maries he received of the rated freight bill, we enforced the
contract and found his claim failed. Id. at 587–89. We also con-
sidered Stampley on appeal of the district court’s grant of sum-
mary judgment, whereas Brant’s claim comes to us on a mo-
tion to dismiss on the pleadings. Schneider’s suggestion that
38 No. 21-2122
Stampley forecloses Brant’s damages argument under
§ 376.12(g) is unpersuasive.
Section 376.12(g) is a disclosure mandate that protects
owner-operators by requiring that the lease disclose the avail-
ability of information useful to ensure the carrier does not
shortchange the driver at settlement. The lease must specify
when this information is to be made available, and then the
carrier must provide it or be in breach of contract. Because
Schneider did not clarify in the Operating Agreement when
this information would be available—i.e., at or before settle-
ment—Brant allegedly did not know that one of the signifi-
cant disclosure protections provided him by the Truth-in-
Leasing regulations was being violated.
There is no allegation that Schneider actually provided
equivalent information from the rated freight bill at or before
the time of settling payment with Brant for a shipment. In-
stead, Brant alleges that Schneider “did not provide Plaintiff
… with copies of documents from which the rates and charges
… are computed,” and that Schneider “underpaid Plaintiff.”
He further alleges that the failure to disclose the rated freight
bill or equivalent information to him prevented him from con-
testing the alleged underpayment. This sufficiently alleges he
was harmed by the violation for him to state a claim for relief
under 49 U.S.C. § 14704(a)(2).
Second, Brant alleges that he was harmed by Schneider’s
failure to provide information required to determine the va-
lidity of chargebacks deducted from his pay. Such charge-
backs are governed by 49 C.F.R. § 376.12(h):
The lease shall clearly specify all items that may
be initially paid for by the authorized carrier,
No. 21-2122 39
but ultimately deducted from the lessor’s com-
pensation at the time of payment or settlement,
together with a recitation as to how the amount
of each item is to be computed. The lessor shall be
afforded copies of those documents which are neces-
sary to determine the validity of the charge.
(Emphasis added.) Brant alleges that Schneider withdrew ap-
proximately $1,200 from his bank account, and when he con-
tacted Schneider to request information about the charge, he
received nothing. Assuming, as we must, that these allega-
tions are true, Brant states a claim for a violation of § 376.12(h)
under 49 U.S.C. § 14704(a)(2).
Third, Brant alleges that Schneider did not disclose the
amount of all escrow funds in the Operating Agreement and
Lease in violation of 49 C.F.R. § 376.12(k)(1). Under
§ 376.12(k)(1), Schneider was required to specify in its lease
“The amount of any escrow fund or performance bond re-
quired to be paid by the lessor to the authorized carrier or to
a third party.” Brant alleges that “Schneider also deducts from
Drivers’ paychecks amounts to fund an ‘escrow account’ held
by Schneider as purported ‘security’ for unstated ‘obligations’
of Drivers. If at any point the ‘escrow account’ drops below
the balance required by Schneider, Schneider deducts addi-
tional funds from Drivers’ paychecks to replenish the ‘escrow
account.’” This allegation involves required escrow payments
that are allegedly not explained in the Operating Agreement
or Lease and are not further described. This is enough to allow
the plausible inference that Schneider violated § 376.12(k)(1).
Because Brant alleges that these escrow amounts were not re-
turned to him upon termination, he also alleges damages
40 No. 21-2122
from this potential violation and can state a claim for violation
of § 376.12(k)(1) under 49 U.S.C. § 14704(a)(2).
Brant has alleged legally viable claims for relief under the
Fair Labor Standards Act, Wisconsin minimum-wage law,
Wisconsin law of unjust enrichment, and the federal Truth-in-
Leasing regulations. The judgment of the district court is
REVERSED and the case is REMANDED for further proceed-
ings consistent with this opinion.