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Contractor or Employee? California Legislature Decides.

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Is your Uber driver a contractor or employee? What about the person delivering your favorite meal through DoorDash? California legislators passed a bill, called AB 5, on September 11 requiring employers that utilize contract workers to perform ‘gig’ type work, to change the status from contractor to employee. Governor Gavin Newsom has not signed the bill, though it is expected he will after current negotiations are resolved. Primarily this includes ride-hail drivers (like Uber and Lyft) and delivery couriers (like DoorDash) but could become more far-reaching. Other possible occupations include nail salon workers, janitors, construction workers, home repair, and telemarketers. Some exemptions* in California already exist.

Contractor or employee – ABC guidelines

There are ABC guidelines that establish the classification of an independent contractor. These workers would not be considered employees:

(A)  free from the control and direction of the hiring entity – in fact as well as by contract;

(B) the work performed by the person is outside the usual course of the hiring entity’s business; and

(C) the person hired is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. 

This definition of an independent contractor does not generally fit ride-hail and delivery drivers.

Worker benefits

Currently California contract workers do not receive employee benefits such as vacation time, paid sick days, overtime, and reimbursement of expenses. As employees, they would receive these plus the ability to unionize and eligibility for unemployment insurance and workers’ compensation. They would have the security they currently lack. 

Employer objections to AB 5

Some employers, such as Uber, have proposed similar benefits without the classification as employees. They stress the flexibility workers currently have that they may lose as employees. Some small, often family businesses such as vineyards, or auto shops, are fearful of the effect it could have on their businesses.

The larger companies, such as Uber, threaten that this law can lead to eliminating many drivers – especially those in low traffic areas that would not justify the benefits of an employee. They also suggest schedules might need to be initiated, ridding drivers of the flexibility they desire. Experts, however, say the bill does not require set shifts, with Uber and Lyft entitled to continue letting drivers make their own schedule decisions. In fact, it would be strategic to use incentives, such as bonuses, to ensure there are sufficient available drivers at certain times and in certain places.

Current status

  • In last minute ammendments, California legislators gave larger cities the right to sue if companies don’t comply.
  • Uber, Lyft, and DoorDash pledged $90 million to support a ballot initiative that exempts them from the new law.
  • Though most drivers support the bill, many oppose it from fear it will limit their flexible schedules.
  • In July and August, Uber and Lyft worked on an agreement between labor groups and the governor’s office to establish a new category between contractor and employee while giving a minimum wage and the right to organize. The negotiations disintegrated, but company officials are optimistic a deal can be negotiated after the bill is passed.

Beyond California

New York, Alaska, and Oregon – and almost half the states –  already determined ride-hailing drivers were employees under current state laws for specific purposes. However, these findings could be overturned by new state laws clearly identifying drivers as contractors. 

There are still hurdles to make this a law across the country. For now, California with AB 5 is setting the standard, and it will be an example to other states as they deal with this massive change in the current working environment of millions of workers in California alone.

When this bill becomes law, we anticipate a law that gives security, benefits, and confidence to all contract workers in California.

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Exemptions

Specific categories of workers:

Includes (i) individuals licensed by the Department of Insurance; (ii) real estate licensees; (iii) physicians, surgeons, dentists, podiatrists, psychologists and veterinarians licensed by the State; (iv) licensed lawyers, architects, engineers, private investigators and accountants; (v) securities broker-dealers and investment advisors and their agents/representatives registered with the SEC or FIRA or licensed by the State; (vi) direct salespersons who otherwise meet Unemployment Code conditions;  and (vii) certain commercial fishermen.

Six-part test for exemption in the fields of graphic design, marketing, writing, editing, freelance photography, and human resources:

  1. Maintain a separate business location (which can be their home);
  2. Have a business license in addition to any required professional licenses;
  3. Have the ability to set or negotiate their own rates;
  4. Set their own hours (other than project deadlines);
  5. Customarily engage in the same kind of work with another entity or holds themselves out to other potential customers for the same kind of work; and
  6. Customarily and regularly exercises discretion and independent judgment in the work.

Supreme Court Considers Class Arbitration in Employment Law Claims

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On October 29, 2018, the Supreme Court heard oral argument concerning class arbitration in employment law claims in Lamps Plus, Inc. v Varela. What’s on the line? Whether general arbitration clauses in employment contracts preclude the right to a collective or class arbitration.

Cases affecting class arbitration in employment law claims

Dallas employment law attorney, Ben DuBose, says “Last year, the Supreme Court’s Epic Systems ruling struck a big blow by holding that arbitration clauses in employment papers override a worker’s rights to bring Fair Labor Standards Act claims in the court system.” Now, DuBose says, “Lamps Plus could further whittle down worker rights.”

The lower appellate court found against Lamps Plus by holding that the general arbitration clause, which did not expressly state it prevented collective or class arbitration, because of its ambiguity permitted class or collective arbitration.

While Lamps Plus does not directly involve Fair Labor Standards Act (FLSA) claims, its impact could apply to a broad range of employment law based claims.

The combination of last year’s Epic Systems ruling which held that forced arbitration clauses are enforceable in employment contracts, coupled with an adverse ruling in Lamps Plus would result in employees only being able to bring individual cases in arbitration – absent express language in an arbitration clause consenting to class arbitration.

Employee rights at stake

In an arbitration, the parties give up their 7th Amendment right to a trial by jury as well as their right to appeal on substantive grounds to a court of law. Instead, arbitration takes place outside of the court system with a private arbitrator, often selected by the employer per the terms of the arbitration clause.

Questioning from the Court during oral argument suggests the Court will be closely divided on what standard should be applied to determine parties have agreed to class arbitration. The Lamps Plus decision will be issued during the spring or early summer of 2019.

Sex Discrimination in the Workplace – An Ongoing Fight

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The Equal Pay Act of 1963 was enacted to prevent sex discrimination in employee wages. Signed into law on June 10, 1963, the Equal Pay Act was part of John F. Kennedy’s New Frontier. After signing the bill into law, President Kennedy remarked: “While much remains to be done to achieve full equality of economic opportunity – for the average woman worker earns only 60 percent of the average wage for men – this legislation is a significant step forward.”

As an amendment to the Fair Labor Standards Act (FLSA), the Equal Pay Act was part of the same legal framework that establishes federal wage and hour laws.

Equal Pay Act provisions

The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender, employees within the same establishment for equal work at jobs that require equal skill, effort, and responsibility, and that are performed under similar working conditions.

Significantly, the EPA does not contain an intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements of the prima facie case:

1. different wages are paid to employees of the opposite sex;
2. the employees perform substantially equal work on jobs requiring skill, effort, and responsibility; and
3. the jobs are performed under similar working conditions

If an employee can establish these elements, then the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.

1972 broadening of the Equal Pay Act

In 1972, the Education Amendments to the EPA broadened the Act to cover executives, outside salespeople and professionals. This short Bat Girl video from the Department of Labor illustrates the issue.

Current sex discrimination for equal pay status

Despite the progress of the last half-century since passage of the EPA, there hasn’t been much improvement in the last decade in closing the gap further between genders. The most recent research shows women in the United States still make only 80%, on average, of their male counterparts. A host of factors are attributed to the slowing of improvement on this issue.

U.S. Supreme Court Strikes Big Blow to Worker Rights

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Supreme Court strikes big blow to worker rights

The U.S. Supreme Court’s recent decision in Epic Systems Corp. v. Lewis struck a big blow to worker rights. At issue was whether employer arbitration agreements, often signed as beginning day employment papers, can prevent workers from pursuing their right to participate in class or collective actions against their employer under the Fair Labor Standards Act (FLSA).

The history

Enacted in the 1930s, the FLSA established wage and hour rights including the federal minimum wage and overtime pay for hours worked over 40 during the workweek. Under the FLSA, workers can recover for underpaid and miscalculated wages. The statute also provides that current and former employees can pursue a type of class action known as a collective action so that other workers that have suffered similar wage losses can be identified and joined into the case. Collective actions can also help streamline litigation by creating efficiencies in time and money.

The opposing statute at issue in Epic Systems Corp. is the Federal Arbitration Act (FAA). The FAA provides that parties may contractually agree to resolve disputes through binding arbitration rather than the court system. In an arbitration, the parties give up their 7th Amendment right to a trial by jury as well as their right to appeal on substantive grounds to a court of law.

The ruling

In Epic Systems Corp, the Court rejected National Labor Relations Board’s contention that class waivers violate employee rights to take collective steps for their “mutual aid and protection.” The Court ruled that employers can require employees to arbitrate disputes with their employer and waive their right to pursue or participate in class or collective actions. The FLSA is silent about overriding arbitration agreements. Ultimately, “[i]n the Federal Arbitration Act,” the Court held, “Congress has instructed federal courts to enforce arbitration agreements according to their terms – including terms providing for individualized proceedings.”

The future

As both Justice Gorsuch, writing for the majority and Justice Ginsburg, for the dissent, point out – this result is something Congress can fix statutorily by clarifying that collective action rights cannot be waived by arbitration agreements. The Court also provides a sliver of daylight to workers by acknowledging state law contractual defenses to arbitration clauses still exist with respect to class waiver arbitration agreements.

Arbitration can be equitable and advantageous for parties of comparable bargaining power that willingly enter into such an agreement. But, more often than not, employment agreements with arbitration clauses involve a large disparity in favor of the employer. Employees often aren’t even aware they’ve signed an arbitration agreement.

The U.S. Supreme Court’s broad holding that forced arbitration clauses and class action waivers are enforceable in employment contracts will have a broad impact on millions of workers and will likely impact other areas of employment law beyond wage and hour disputes.

It’s May Day!

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For some, May Day brings thoughts of children dancing around a May pole with streaming ribbons or baskets of flowers left secretly on a neighbor’s doorstep, but how did May Day actually start?

May Day history

Some may think it began with the huge demonstrations of military might seen in films of the old Soviet Union. In reality, for thousands of years many societies celebrated the welcome change of season on this day. The first known occurrence began with Beltane, a Celtic celebration of rebirth and fertility. When the Romans overtook the British Isles, their celebration of Floralia combined with Beltrane.

Maypoles probably originated in medieval times as villagers would dance around the pole – again as part of a fertility ritual. But in America, this was discouraged by the Puritans and never became a common occurrence.

May Basket Day, however, was celebrated by children delivering baskets of flowers and candies to neighbors and loved ones throughout the 19th and 20th centuries. These baskets were hung on the doors anonymously.

How did the current May Day begin?

In the early 1800s, workplaces were dangerous and the work was often long and hard, with many injuries and death – some jobs having a life expectancy in the early twenties. This led to the organization of labor unions. By 1884, the Federation of Organized Trades and Labor Unions determined “eight hours shall constitute a legal day’s labor from and after May 1, 1886” at their national convention.

Many labor unions backed this, and some began jousting for other reforms. The political climate worried citizens that a revolution would follow. One proclamation, printed just prior to May 1, 1886, clearly demonstrated this thinking.

• Workingmen to Arms!
• War to the Palace, Peace to the Cottage, and Death to LUXURIOUS IDLENESS.
• The wage system is the only cause of the World’s misery. It is supported by the rich classes, and to destroy it, they must be either made to work or DIE.
• One pound of DYNAMITE is better than a bushel of BALLOTS!
• MAKE YOUR DEMAND FOR EIGHT HOURS with weapons in your hands to meet the capitalistic bloodhounds, police, and militia in proper manner.

Chicago was the center for all this activity and its citizens thought a violent clash would occur. The first May Day ‘celebration’ was held in that city on May 1, 1886. More than 300,000 workers representing 13,000 businesses walked off their jobs across the country. But, the violence didn’t happen until May 3rd, between the police and the Metal Workers’ Union and their supporters at Haymarket Square.

The crowd was much smaller than a day earlier due to bad weather, but 3,000 people, including families, were present along with the mayor of Chicago. The mayor later said the crowd was orderly, but rumors of unrest began filtering through the crowd and the police presence. There were rocks thrown and brawling, which led up to a bomb thrown into the police ranks. The police began firing into the crowd and eight officers died. The bomb thrower was never identified or caught.

The results of that day in Haymarket Square

May Day was established as an international Workers’ Day and is an official holiday in 66 countries, but is not officially recognized in the US where it all began.

Through those years of strife well over a hundred years ago, we benefit from their struggles and sacrifices with eight hour work days, Saturday as well as Sunday as a weekend, the end of child labor, and many more improvements including overtime and wage laws.

The Haymarket monument has these words from those who lived that era:
“The day will come when our silence will be more powerful than the voices you are throttling today.”

Today, most of this history been lost except in the memories of a few. Instead, May Day is a time of enjoying the weather, attending outdoor festivals, and planting gardens, but while enjoying these activities, take a moment to remember that without these “rabble rousers” of the past our lives might be much different.