Two Austin Drivers Accuse Uber of Wrongful Termination

In May, Uber Technologies, Inc and Lyft, Inc. abruptly removed their services from Austin, Texas. As a result, thousands of drivers in the area lost their jobs. Two of those former drivers, Todd Johnston from Uber and David Thornton from Lyft, filed two proposed California class action lawsuits. In response to new regulations that were implemented, the two companies moved out of Austin, Texas.

The plaintiffs’ attorney indicated that the success of the suits depend upon the same common issue that Uber and Lyft have been battling in various forums: the question of whether drivers are misclassified as independent contractors. The two previous drivers cited the Worker Adjustment and Retraining Notification Act (WARN) as a basis for their lawsuits. According to the statute, employers who have 100 or more employees working 20 or more hours a week (on average) must provide 60 days notice before a mass layoff or plant closure resulting in a mass layoff. The goal of this particular legislation was to provide workers with the opportunity to find alternative employment, find and arrange for any necessary or advantageous retraining, make accommodations for loss of pay, etc.

The plaintiffs claim that Uber and Lyft’s departure from Austin, Texas resulted in 10,000 drivers contracted to operate in the city being “laid off.” According to the wording in the above cited statute, this type of action (resulting in the “laying off” of more than 500 workers) calls for an appropriate notification. Legal experts viewing the case indicate that the plaintiffs face an uphill battle as for the statute to apply to the situation, laid off workers must have been “employees.” Uber and Lyft classify their drivers as independent contractors – a classification that comes with significantly different rights and benefits in comparison to workers classified as employees.

In April an unrelated lawsuit reached a settlement with terms dictating that drivers are to be considered independent contractors – not employees. Having noted that, we have yet to see a definitive court ruling on this particular issue. So while it will be an uphill battle for these plaintiffs to establish themselves as “employees” of Uber and Lyft in the eyes of the court, the possibility is there.

If you have questions regarding what constitutes a misclassification, please get in touch with one of the experienced employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Drivers’ Employment Status Leaves Uber Being Sued…Again!

Uber is being sued again. The question of the Uber drivers’ employment status has opened the class action floodgates. Within two weeks of the settlement of $100 million for class action lawsuits in California and Massachusetts that sought driver reclassification from independent contractors to employees, Uber is fielding two new cases against their company.

Following the California and Massachusetts case resolution, similar nationwide class-action lawsuits have been filed on behalf of Uber drivers in both Florida and Illinois courts. The drivers (plaintiffs) allege that Uber, a San Francisco company, is in violation of the Fair Labor Standard Act. The new suits seek unpaid overtime wages and work-related expenses on behalf of drivers.

The class action suit that was filed in Illinois takes the familiar allegations to a new level by attempting to recover tips that drivers earned which they allege the company stole from them or caused them to lose through Uber policies and communications.

Legal representation for the Illinois class action lawsuit indicated that the settlement with California and Massachusetts drivers was an obvious attempt by Uber to band aid the situation when it called for much more drastic methods. Many drivers who work using the Uber service do so as a means of supporting themselves and their families. They need the protection of wage and hour laws and overtime pay requirements, just as much as the rest of the workers in the nation.

Uber responded to the new legal activity with a statement indicating that 90% of their drivers work with Uber because they enjoy being their own boss and that the reclassification of drivers from independent contractors as employees would take that away from them. They would no longer have the flexibility that the status of independent contractor affords. Uber “employees” would have designated shifts, a fixed hourly wage that would limit their earnings, and prohibitions would keep them from driving for additional ride-sharing apps.

If you have questions about the misclassification of workers or if you are an independent contractor and have questions about misclassification of employees, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug and Bhowmik.

$12M Lyft Settlement: Company Refuses to Classify Drivers as Employees

In late January 2016, Lyft, a ride-hailing service out of California, agreed to pay a $12.25 million settlement in order to provide extra job security to members of a proposed class including both current and former drivers. The drivers filed suit against Lyft in California federal court. One of the more interesting terms of the settlement agreement for many is Lyft’s insistence that drivers will still NOT be classified as employees.

The suit filed against Lyft is just one of several that popular “ride” services are dealing with in both state and federal courts. Another popular ride service that is handling similar suits is Uber Technologies Inc. The numerous suits in the last few years against these types of ride providing companies seek a clearer delineation between employees and independent contractors (which is the current classification of drivers at such companies). In the suit recently settled against Lyft out of California federal court, the company made a few additional concessions that were included in the proposed settlement:

• Lyft conceded the right to terminate drivers at will enabling drivers to “turn down” rides without fear that they will lose their ability to drive for the company.
• Lyft agreed to create a “favorite driver” option for riders to use to designate their favorite drivers – providing drivers with the opportunity for additional benefits.
• Lyft conceded paying costs to arbitrate driver grievances.
• Lyft conceded the implementation of a prearbitration process. 
• Lyft conceded the provision of drivers with additional “rider” info (passenger ratings, etc.)

Lyft representation announced that the company was pleased with the resolution of the matter and that opportunity the settlement terms presented to preserve the flexibility of the drivers that is necessary for them to control their own driving schedule on the platform while still providing consumers with affordable, safe transportation as originally intended. The company designed their platform as a symbiotic relationship between driver and rider. The driver controls when they drive, where they drive and how far they drive and consumers get home safely.

The original plaintiff, driver Patrick Cotter, filed suit against Lyft in September 2013. He alleged that the company’s classification of drivers as independent contractors was inappropriate as they were treated like employees. He also alleged that the company’s policy to “skim” 20% of drivers’ tips as an “administrative fee” was in violation of California labor law. He cited company required inspections of drivers’ vehicles (personal cars) and insurance policies, the company’s right to fire at will, mandatory policies and training, etc. as actions more suited to the role of an “employee” according to California labor law and that drivers were misclassified as independent contractors. The suit was originally proposed as a nationwide class action, but at a later date was limited to California drivers.

The counsel for the plaintiffs saw the terms of the proposed settlement as positive even if they did not attain all that they hoped for with the legal proceedings. Lyft did not agree to reclassify drivers as employees as other “sharing economy” services have recently (i.e. Shyp, Instacart, etc.), but they did agree to make changes that will provide significant benefits to their drivers.

If you would like additional information about misclassification of employees as independent contractors, we would love to discuss it with you. Contact one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik today. 

Raiders Cheerleaders “Cheering” New California Labor Code Section 2754

The Oakland Raiders cheerleaders might be the group that is the most enthusiastically cheering for the new Labor Code Section 2754. The Raiderettes filed a class action case against the Raiders in 2014 in a fight to win status as employees that would grant them the protection of wage and hour laws. The plaintiffs in the case (cheerleaders/Raiderettes) alleged that, as independent contractors, they received contract pay of $125/game. This rate of pay was provided regardless of how many hours the cheerleaders worked and resulted in less than $5/hour. Minimum wage for California employees at the time of the suit was $8/hour and was since raised to $10/hour.

The Raiderettes are not the only of their kind to feel like they are not being treated fairly on the job. As other professional sports teams’ cheerleaders have filed similar suits, legislature is taking action to address the problem. As of January 1st and in accordance with new Labor Code Section 2754 added by AB 202, cheerleaders for professional sports teams in California will be deemed employees according to state law.

Some wonder if the new legislation could hint at a broader policy against misclassification as independent contractors. Legislative history clearly indicates the apparent concern for the issue of independent contractor classification noting that the Employment Development Department reports for 2012 alone indicated:

$36,348,078 in payroll assessments and

$9,131,000 in tax fraud assessments

(According to the June 24, 2015 Senate Floor Analyses)

The California Division of Fair Labor Standards also agrees that independent contractor classification is a rampant problem – even going so far as to report it as such on their website alongside their concern regarding the lack of a bright-line test.

In fact, the independent contractor classification problem is not one that is limited to California. According to the U.S. Department of Labor Administrator’s Interpretation from July 2015 noted that the misclassification of workers as independent contractors is more and more common in U.S. workplaces. It was also noted that when the economics realities test is combined with the expansive definition of “employ” according to the Fair Labor Standards Act most workers are actually employees – not independent contractors.

If you have questions about your own status as an independent contractor or need information on how to decide if you are actually a misclassified employee, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

Employers Reclassifying Workers to Save Money

July 16, 2015 -Courts and regulatory agencies are increasing the scrutiny coming at employers regarding the relationship with their workers: businesses and independent contractors, contractors and subcontractors, employers and employees. In response, many employers are utilizing different tactics to classify their workers; reclassifying workers to save money by taking them off formal payroll and lowering costs. 

For years, employers have shifted work off their actual employees and on to independent contractors. This relabeling of the workforce with slight alterations to their work conditions left many in court or owing settlements. As this misclassification of employees as independent contractors is receiving such intense focus across industries, many businesses are now turning to other types of employment relationships:

Setting up Workers as Franchisees

Setting up Workers as Owners of LLCs

Both of these methods help to shield the business from tax and labor statutes that are attached to the formal payroll for actual employees of the company.

These new tactics have state and federal agencies aggressively putting a stop to the setup: passing local legislation to address the issue, filing briefs in worker’s lawsuits, and closely keeping an eye on the increasing popularity of what regulatory agencies see as an equally questionable alternative to the independent contractor employment model that has experience such a crackdown.

As employers are finding it more difficult to save costs by avoiding an official payroll, workers are finding that they are required to assume more risk. They suddenly need to shoulder more of the burden for health care premiums, retirement income and even job security. This shift in responsibility from the employer to the worker seems to be spurring the major influx of misclassification suits and allegations.

Employers are seeking more creative ways to misclassify workers. If you feel that you are misclassified or you need to discuss the issue of misclassification with a southern California employment law expert, contact an employment law attorney at Blumenthal, Nordrehaug & Bhowmik.

Increasing the Threshold and Amending “Exempt Duty” Definitions

Possible changes brought about by the Obama administration have been heavily discussed recently. Experts are expecting a significant number of American workers to be eligible for overtime pay if the proposed changes are to take effect. Changes under discussion are: raising the threshold and amending how exempt duties are defined.

The Economic Policy Institute estimates that increasing the threshold to $42,000 would make 3.5 million more workers eligible for overtime pay and that increasing the threshold to $52,000 would mean 6.1 million workers would qualify for overtime pay. Advocates for a threshold increase like EPI and the National Employment Law Project, would very much like to see the threshold raised to a minimum of $51,168 (which would be $984/week). Doing so would provide overtime eligibility to 47% of workers. Compare that to 12% eligibility according to current employment law and 65% eligibility in 1975.

Advocates would also like to see the Department of Labor include more specifics regarding what makes a position exempt from overtime. As it stands, employment law defines eligibility for classification as an exempt administrative employee as having a primary duty requiring that the worker “exercise discretion and independent judgment with respect to matters of significance.” Advocates for employment law change suggest that this is completely meaningless since any job requires SOME independent judgment. Suggested changes include specifying that more than half of a worker’s time needs to be spent performing “exempt duties” to prevent employers from offering “hollow” promotions with managerial titles, little to no pay increases, and even less managerial power.

Employers are concerned because with more generous overtime pay protections, their payroll costs will increase. The end result from the company’s perspective would be paying time and a half (overtime pay) to more eligible workers or they could potentially decide that it’s more cost effective to hire additional workers to cover the additional work hours needed while preventing current employees from getting overtime hours. Representatives of the U.S. Chamber of Commerce argue against advocate suggestions stating that one income threshold for the entire country is too broad and won’t work. They suggest applying geographically specific thresholds instead.

With big changes to the income threshold as is being contemplated, employers would be required to reclassify millions of salaried workers to hourly. That could result in employees losing benefits. Morale could suffer in the workplace as well. For instance, salaried workers have more leeway regarding their hours. Previously exempt, salaried employees who are changed to hourly as a result of the proposed employment law changes may see their pay docked for midday appointments, or could be required to use a vacation day to cover the absences that used to be a slight adjustment to their schedule of salaried work. Such changes could also negatively affect workers who are accustomed to benefit from merit-based bonuses, salary level vacation day packages, etc.

For more information on what the proposed changes might look like in your workplace, check back soon for up to date employment law news updates at Blumenthal, Nordrehaug & Bhowmik. 

Misclassification of Insurance Claims Adjusters in California Results in Class Action Lawsuit Settlement

The misclassification of insurance claims adjusters led to a California class action lawsuit. The seven plaintiffs in the case prevailed after a long, embittered legal battle. The plaintiffs were former claims adjusters for Liberty Mutual Insurance Company who filed for the recovery of unpaid overtime as well as related penalties.

The description of the legal battle that ensued as “long” and “embittered” is unarguable. The litigation took thirteen years. Litigation was intense and many say, exhaustive, but a settlement was finally secured for the plaintiffs - Liberty Mutual agreed to a settlement amount of $65 million to compensate more than 1,600 claims adjusters (current and former) for unpaid overtime compensation. 

Timeline of Events: California Claims Adjusters Class Action Lawsuit

May 2004: Trial Court granted plaintiffs’ motion for class certification. Representation was appointed for the class.

Early 2005: Discovery completed and plaintiffs move for summary adjudication on defendants’ affirmative defense that plaintiffs and class members were exempt from overtime pay under California labor law. Defendants counter with a motion to decertify the class and two motions for summary judgment.

October 18, 2006: Trial court issued a decision granting in part the defendants’ motion to decertify and denying the plaintiffs’ motion for summary adjudication regarding the liability issue.

August 16, 2007: Court of Appeal issued its first decision that granted plaintiffs’ motion for summary adjudication and denying defendants’ motion to decertify class.

December 29, 2011: California Supreme Court granted defendants’ petition for review and found that the Court of Appeal applied the wrong legal standard and remanded the case to the Court of Appeal for additional proceedings.

July 23, 2012: After the case returned to the Court of Appeal where they again ruled in the plaintiffs’ favor. They found that defendants were liable for unpaid overtime and that the trial court erred in decertifying the class. Defendants sought review by the California Supreme Court, but they declined to hear the defendants’ petition. This left the plaintiffs’ victory intact.

September 2012: The case returned to trial court where the defendants’ counsel argued that the Court of Appeal’s decision was not binding on the trial court.

June 2013: Prior to resolution, parties agreed to resolve all claims in exchange for $65 million settlement from Liberty Mutual.

June 2014: Court granted final approval of the settlement with no objections from class members.

This outcome combined with the size of the recovery is especially notable in light of the fact that over the past 10 years, almost every other court hearing similar cases involving misclassification of insurance claims adjusters found in favor of the defendants.

For more information on California employment law or California class action lawsuits, contact Blumenthal, Nordrehaug & Bhowmik.