On May 29, 2026, the U.S. District Court for the District of New Jersey issued a significant opinion in Tomasello v. ICF Technology, Inc., ruling that adult performers who livestream on online streaming platforms should be classified as independent contractors under the Fair Labor Standards Act (FLSA) but qualify as employees under New Jersey’s ABC test. The Court’s analysis underscores the growing divergence between federal and New Jersey worker classification standards — and the heightened risks employers face when engaging workers in the Garden State.
In evaluating the threshold classification question, the Court applied two distinct legal frameworks and reached opposite conclusions when evaluating claims made by a class of adult entertainers under the FLSA and New Jersey’s Wage and Hour Law (NJWHL) and Wage Payment Law (NJWPL).
Under the FLSA's "Economic Reality" test, the Court found the performers were independent contractors. Three of the six factors — including the degree of the employer's control, the performers' opportunity for profit or loss, and the lack of permanence — favored independent contractor status. The Court emphasized that performers set their own schedules, chose their own streaming locations, set their own prices, and were free to simultaneously perform on competing platforms. While the defendants did exercise some degree of monitoring and enforcement over performer conduct, the Court...
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