employee vs. independent contractor

Welcome back for this month’s edition of the Bubbler!  There’s plenty to talk about, so let’s jump right in.

The California Supreme Court issued an important decision this week addressing the test for whether a worker is an independent contractor or an employee.  The U.S. Supreme Court declined to review a Seventh Circuit decision upholding an employer’s rule that a months-long leave of absence was not a reasonable accommodation. The Ninth Circuit held that employers are prohibited from using an employee’s past salary as a legitimate “factor other than sex” for purposes of defeating a Fair Pay Act claim, emphasizing that allowing the inclusion of prior salaries would only perpetuate gender pay disparity. The Fifth Circuit downsized ERISA fiduciary standards in a ruling that invalidated a set of seven expansive fiduciary rules. The Northern District of Illinois issued an unusual ruling, holding that two plaintiffs’ claims were subject to an enforceable arbitration agreement, yet refused to compel arbitration. The DOJ challenged a set of competitors’ no-poaching agreements as per se violations of the Sherman Act, which regulates concerted anti-competitive action. Finally, in the wake of the #MeToo movement, New York (state and city) have passed new laws concerning workplace sexual harassment.

As always, stay tuned for more employment matters updates!

Written by Natalie Young with Michael Arnold

The sharing or gig economy has introduced a new management paradigm for companies, more flexible schedules for workers, and a greater level of convenience and accountability to consumers.  While there are many supporters of this new economy, the individuals providing the services are caught in an undefined space – are they employees or independent contractors?

Continue Reading Ninth Circuit Won’t Review Uber Driver Class Certification Decision

If you tuned in to my appearance a few months ago on Bloomberg Law Radio, you heard me bemoaning our legal system’s failure to catch up with the gig economy.

For those of you who don’t know, the term “gig economy” (also known as the “sharing economy”), refers to casual on-demand services undertaken by individuals yearning to fit “work” into their lifestyle unsullied by a traditional long-term employment relationship, employment regulations and other aggravations like payroll taxes.  The casual worker concept appeals to businesses as well, especially those in beta mode that are not equipped to take on the tremendous responsibilities (and expense) of a W2’d workforce.

The problem of course is that laws and regulations drafted thirty years ago did not contemplate that people would actually elect to throw off the constraints of typical employment where they are told what to do, where to do it, and how it must be done, and instead elect to do their own thing – where, when and how they wished. Layer on top of that a bit of the nanny state mentality and it creates the perfect storm of non-bottom-line enhancing litigation.

So what is a reasonable gigster to do?

Continue Reading What Does the Latest Uber Decision Mean for Your Gig Business?

We have been following the high-publicity battle between Uber and Lyft, on the one hand, and the drivers on the other, over whether the drivers are properly classified as independent contractors.  Uber and Lyft argue they are mere technology companies facilitating the connections between drivers and would-be passengers.  The drivers say they are employees of the companies because the companies exercise significant control over how they provide the taxi services.  However, it appears that disputes over proper classification of taxi drivers are not unique to Uber and Lyft.

Continue Reading These Taxi Drivers Are Not Employees Says Massachusetts Supreme Judicial Court