Berwick vs. Uber: Small Decision, Uber-Sized Headache

Uber-misclassificationIn a somewhat unexpected, but not that surprising, ruling, the California Labor Commissioner, on June 3, 2015, issued a 12-page decision in favor of a pro se plaintiff driver against mighty Uber Technologies, Inc. for misclassification of the plaintiff as an independent contractor instead of an employee. The award though a modest $4,152.20 may have a multi-million dollar impact upon Uber and its competitors, particularly their business model and foundational argument that they are “just a neutral technological platform.”

The path started out difficult for Uber. The Labor Commissioner noted that California law presumes that a worker providing personal, not business, services is an employee, shifting the burden of proof of independent-contractor status to the employer. And, that burden, thanks to the Berwick ruling, just got Uber-heavy for the burgeoning tech-ride industry.


Union or Not, the NLRB Has Employers (and Their Employee Handbooks) In Its Sights

NLRB-union-election-ruleHere’s something that often comes as a surprise to my clients with a non-union employee base: the NLRA (National Labor Relations Act) likely applies even without any union employees.

Yep – you read that right.

In fact, the NLRA’s application is quite broad, covering the vast majority of private employers in the United States.

And because there aren’t already enough rules and regulations that employers need to comply with (read that again, with sarcasm), the NLRB has been making things even more difficult for employers lately, paging through employee handbooks and going line by line to find potential issues. In particular, the NLRB has been taking a hard stance against employers whose handbooks set forth policies that try to zip the lips of disgruntled employees when it comes to talking about things like how much they (don’t) make and how horrible their bosses are.


Employee Misclassification in the Entertainment Industry

flim-productionEmployee misclassification is one of the leading labor abuses in the country. In fact, in recent years, both the Internal Revenue Service and the U.S. Department of Labor have launched a misclassification initiative to combat this pervasive issue.

Misclassification runs rampant in the entertainment industry, where terms like “low pay/no pay”, “copy, credit, meals”, and “deferred payment” get thrown around freely in order to meet budget. With the ease of access to affordable high quality recording equipment and editing software, the fast-growing independent market has only added to the I.R.S. and U.S. Department of Labor’s frustrations in this regard.

The Fair Labor Standards Act defines the term “employ” very broadly as follows: to “suffer or permit to work.” Most individuals providing services to a for-profit business will be deemed an employee under the law unless a specific exclusion applies. A good rule of thumb is this: if you are asking someone to perform work that is benefitting you, start with the assumption that they are your employee, unless an exception proves otherwise.

While by no means a comprehensive list of all “employee misclassification” concerns, here is a brief overview of three of the most common misclassifications, and when and how they can lawfully be applied to support your project.


Gimme a W!  Gimme an A!  Gimme a G!  Gimme an E!  What’s that Spell?!? . .

nfl-cheerleaders-wage-litigation2NFL cheerleaders are one of the more recent groups to Bring It On! in the form of wage and hour litigation for the alleged failure of their teams to pay them a minimum wage.

In fact, to date, cheerleaders from five NFL teams have filed lawsuits against their respective teams alleging that they were not paid a legal wage for the time spent rehearsing, performing, and appearing at events. These spirit spreaders allege that they received little – and, in some cases, no – compensation for their heavy pompon lifting. The litigating squads include the Raiderettes, the Ben-Gals, the Tampa Bay Buccaneers Cheerleaders (boooooorrrring), the Flight Crew, and the since-disbanded Buffalo Jills. (I’ve gotta be honest – I couldn’t keep a straight face while typing that last one. Seriously? The Buffalo Jills?)


California’s On-Duty Meal Period – Not a Waiver of a Meal Period!

California On-Duty Meal PeriodsUnder California law, employees are required to take an off-duty 30-minute meal period before the end of the 5th hour of work. Employees who work less than 6 hours may waive the 30-minute meal period by mutual consent of the employee and employer. Employees who work more than 10 hours are required to take a second off-duty 30-minute meal period before the end of the 10th hour of work. Employees who work no more than 12 hours may waive the second 30-minute meal break by mutual consent of the employee and employer only if the first meal break was not waived.

During the meal period, employees are relieved of all duty and should be completely off work for at least 30 minutes.

The Wage Orders recognize an exception to this rule where the “nature of the work” performed by the employee prevents him/her from being relieved of all duty.  The test for on-duty meal periods is satisfied so long as:


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Don’t Turn Unemployment Compensation Into Unemployment Complication

background checks

Unemployment comp.  Not the sexiest of topics.  But I get a lot of questions from employers on the issue, the appropriate resolution of which would spare me a lot of stress when a termination-related case lands on my desk.  (After all, this is all about me, right?)

The proper handling of unemployment compensation claims also might save an employer – and its EPLI carrier – a fair bit of moolah if the termination ends up the subject of litigation.  So, even if you don’t care about my well-being, you’ll still want to read on.

Should Employers Appeal UC Decisions?
First, the most common question I get is:  Should I appeal an adverse unemployment comp determination?

Employers often ask how far an adverse UC decision will follow them, wondering whether to appeal a decision granting benefits to the employee.

The Eastern District of Pennsylvania in Mathis v. Christian Heating and Air Conditioning (Civ. No. 13-3740, Mar. 12, 2015), recently made the answer to that question very clear (at least under Pennsylvania law).  The employer argued that because the state court found that the employee was ineligible for UC benefits because he voluntarily quit, the employee should be precluded from arguing in his separate discrimination case that he was involuntarily terminated.  (Hmmm . . . be careful what you ask for.)


Takeaways for Employers on the Hillary E-mail Debacle

5 Reasons Employers Should Prohibit Employees From Using Personal Email Accounts

Recently, a political firestorm has erupted as news stories revealed that Former Secretary of State (and likely Presidential Candidate) Hillary Clinton utilized private e-mail accounts to conduct government business during her tenure as Secretary of State.  Pundits from the left, right, and center have weighed in on the political impact of Clinton’s e-mail practices.  But putting politics aside, as the story of Clinton’s e-mail usage unfolds, employers should be asking if it is a good idea to allow their employees to send work-related e-mails on private e-mail accounts.  In fact, the wise employer should enact and enforce policies that mandate employees to use company-issued e-mail accounts for work-related communications and prohibit employees from using private e-mail accounts to send work-related e-mails.  Here are five reasons why such a policy is smart for employers.

1. The Ability To Access and Monitor An Employee’s E-mail Communications
A policy which prohibits employees from using personal e-mail accounts to send work-related e-mails ensures that an employer will have the ability to monitor an employee’s work-related e-mails. If employees are sending work-related information via their private e-mail accounts, an employer has little, if any, ability to access those e-mails.  Indeed, even if the employee accesses his or her private e-mail account on a company issued computer, an employer’s hands may be tied when it comes to monitoring and reviewing the e-mails contained in the employee’s private e-mail account.


Pregnant Dancers are Sexy and They Know It

image-679whhd7In considering a motion for summary judgment that may have been written just so I could write about it, in Berry v. The Great American Dream, Inc. (No. 13-CV-3297-TWT), the Northern District of Georgia decided – once and for all – that pregnant women can be sexy.

Now, you might be thinking – what circumstances could possibly have caused a court to consider that question and come to that conclusion?

In comes The Great American Dream, Inc. d/b/a PinUps.  (Yes, another stripper case.)

Two months after she became pregnant, Pin Ups terminated one of its dancers who left work early one day and failed to pay the required “leave early fee.”  (Notably, she was specifically told that if she paid the fee, she’d get her job back.)  The dancer sued PinUps, alleging that she was told she was being fired because she was pregnant.  (Ah, the dreaded material question of fact.)

I give the employer’s attorneys credit for thinking outside the box to get around this summary judgment-stopping situation.  It seems (in my defense-oriented mind, anyway) that the employer had a legitimate non-discriminatory reason for terminating the plaintiff.  If the plaintiff’s statement regarding the reason for her termination is not credible, the employer will win the day in the end.  But that would require a lengthy and expensive trial, and why not try to avoid that, if at all possible?


To Grant Leave or Not to Grant Leave…That is the Question

Employers covered by the Family and Medical Leave Act often are surprised to find out that the onus is on them to provide eligible employees notice of FMLA rights in the event of a qualifying absence and to properly designate that absence as leave under the FMLA.  (As if employers don’t have enough on their plates…)

The FMLA entitles an eligible employee to leave if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.”

Well, what does that mean?
A “serious health condition” is “an illness, injury, impairment or physical or mental condition” that involves either “inpatient care” or “continuing treatment” by a health care provider.

Continuing treatment” includes a “period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves” (1) treatment two or more times within 30 days of the first day of incapacity or (2) treatment on one occasion that results in a regimen of continuing treatment under the supervision of a health care provider.

So, what does that mean?
Say you have an employee who is feeling lousy because of unregulated high blood pressure and who leaves work, goes to the doctor, gets a prescription for blood pressure medication, and stays off of work for a few more days – is that sufficient to bring the FMLA into play?


Calling all Office Romeos…to Sexual Harassment Training


In television courtroom drama style, all over the legal news this past week we’ve seen updates from the trial in Marchuk v. Faruqi & Faruqi (Case No. 1:13-cv-01669, S.D.N.Y), a case brought by a junior female associate against her former law firm.  In an ode to what we would like to think as “days [long] gone by,” the associate alleged that in the few months she was employed with the firm, a firm partner engaged in repeated sexual harassment of her and then sexually assaulted her at the firm holiday party.  Faruqi defended on the grounds that all sexual interaction was consensual and that the alleged sexual assault never happened.  This past Thursday, a jury found the law firm and partner partially liable for creating a hostile work environment.

I read an article suggesting that this is an isolated instance of a lawyer behaving badly rather than representative of a larger problem in the legal industry.

But is Faruqi really an “outlier?”
As employment lawyers, we deal with sexual harassment cases all of the time (although perhaps not always quite as “colorful” as Faruqi).  Why would law be different than other vocations?  The long hours, close quarters, constant stress, and lack of sleep can be a recipe for disaster when it comes to maintaining decorum in the workplace.