Uber Driver Considered Employee and Not Contractor

In a recent decision by the California Labor Commissioner, a driver for Uber is considered to be an employee, and not a contractor. Uber is a transportation network company with headquarters in San Francisco, CA. It operates a mobile application that permits consumers to make trip requests that are routed to sharing economy drivers. Uber drivers in Florida have already been classified as employees earlier this year and California may be following Florida.

The ruling, which was issued on June 3, 2015, was made in response to a claim filed by an Uber driver named Barbara Ann Berwick, who is based in San Francisco. Berwick was awarded by the commissioner approximately $4,000, which covers the cost of her expenses and unpaid wages. However, Uber has filed an appeal, claiming that the company merely allows drivers and passengers to engage in business transactions through Uber.Uber

This ruling is in stark contrast to the decision made in 2012 by the same commissioner, who ruled that the driver was an independent contractor. In that case, the commissioner considered such evidence as the driver’s ability to set his own hours. Uber also contends that in five other states, officials determined that Uber drivers were independent contractors. However, in this case, the commissioner seems to have considered a wider range of factors.

The rationale for the commissioner’s decision is that Uber is “involved in every aspect of the operation.” According to the commissioner, Uber has control over the tools used by the driver; Uber keeps track of the driver’s ratings; and Uber  ends the driver’s ability to access the system in the event that the driver’s ratings drop below 4.6 stars.

The recent decision may well have far-reaching implications for Uber. If all Uber drivers are eventually classified as employees, then the company could incur higher costs, including Social Security, unemployment insurance, and workers’ compensation. As a result, the company, which is valued at over $40 billion, could take a loss in its market value. If the ruling is upheld on appeal, it could set a precedent that is followed by commissioners and courts in other states.

Enforcing a Verbal Contract to Share Lottery Winnings

What if you entered into an oral agreement with someone to share lottery winnings in the event that you won the lottery? That is exactly what occurred between a Florida man, Howard Browning and his former girlfriend, Lynn Anne Poirier. According to Browning, the former couple verbally agreed in 1991 to share lottery winnings with the other if one of them won. In 2007, Poirier hit the jackpot. Instead of honoring their agreement, Poirier had Browning evicted from the home that they had shared for sixteen years. In 2008, Browning sued her for violation of the oral contract, and alleges that he is entitled to $500,000, or one-half of the $1 million, that she won in the lottery.Couple Break Up

Statute of Frauds

After a jury started to hear evidence in the case in 2012, a judge threw out the case, and an appeals court subsequently agreed. However, in May 2015, those decisions were reversed by the Florida Supreme Court, which ruled that Browning should have a new trial. The Court reasoned that the agreement to divide any future lottery winnings is not required to be in writing because it could be performed within one year. This decision is in line with the Florida Statute of Frauds, which says that a lawsuit cannot be filed for breach of a contract that cannot be performed within one year unless the contract is in writing.

Nevertheless, there are conflicting accounts as to the status of the relationship at the time that the winning ticket was purchased. According to Browning, he and Poirier had dined together just prior to buying the tickets. Poirier, however, tells a different story. She says that she purchased the winning ticket when they had already separated.

While the plaintiff is ecstatic that the court sided with him, he is concerned that the defendant may have already spent the funds. A jury must now determine whether the couple really entered into an agreement to split the lottery winnings, and if they were still together at the time the defendant won the lottery.

I really have to admire the plaintiff’s persistence in trying to claim his share of the winnings. Many people, I’m sure, would have just chosen to move on if their former significant other reneged on their promise to split the winnings with them.

Disabled Homeowners with Service Dogs Denied Homeowners Insurance

Disabled homeowners with pit bulls as service dogs were unable to purchase homeowners policies from Travelers Insurance Company. Travelers has been accused by the Fair Housing Council of Oregon of disability discrimination as a result. While pit bulls have a reputation for being very aggressive and for engaging in dog fighting and attacks on humans, their owners often describe them as being very loyal and sweet-tempered.

Last year, officials from the nonprofit agency directed a phone sting in which “testers” pretending to be people with disabilities made telephone calls to Travelers to obtain quotes on home insurance policies. The testers stated that they were the owners of service dogs that were pit bulls. In every instance, the company’s phone representatives refused to provide them with a quote. In May 2015, the Fair Housing Council filed a federal lawsuit against Travelers in Oregon’s U.S. District Court, and named two of Traveler’s agents, Progressive Insurance Corp., and Purdy & Co., as co-defendants.   pit_bull-dark-300x199

The lawsuit alleges that Traveler’s customer service representatives asked the testers if they owned any pets, to which he replied that he had a service dog for his disability, and that the dog was a pit bull. The representative then said that there was a breed restriction policy to which Travelers must adhere, and that Travelers would be unable to provide homeowners insurance because the breed of dog was a pit bull. When the testers asked if the pit bull policy could be waived or modified, the representative said “no.” The responses were the same even if the assistance animal had no history of dangerous behavior or bites.

The Fair Housing Commission of Oregon alleges that Travelers and its agents are engaging in discriminatory housing practices. By failing to provide homeowners insurance to disabled people because they have pit bulls as service dogs, Travelers is having an adverse effect on the ability of disabled individuals to become homeowners.

Travelers and its agents might say there are other insurance companies from which disabled people with pit bulls might obtain homeowners insurance. If those companies don’t have the same pit bull policy as Travelers, then disabled persons with pit bulls could still purchase insurance despite Traveler’s policy. However, if the policy is industry-wide, then that defense will not help Travelers.

Wells Fargo Bank Commits Fraud Against Its Customers

Wells Fargo Bank is facing a lawsuit from the city of Los Angeles, which alleges that the bank participated in unfair business practices by persuading its employees to engage “in unfair, unlawful, and fraudulent conduct.” According to the lawsuit, Wells Fargo workers were under a great deal of pressure to meet sales goals, and thus, were in the habit of opening accounts for their current customers without first obtaining their permission.

The city of Los Angeles refers to Wells Fargo as a “fee-generating machine” because of its efforts to compel its employees to meet unrealistic sales goals. According to the city, “Wells Fargo places unrelenting pressure on its bankers to open several accounts for each customer. “ “Wells Fargo’s bankers are thus naturally and predictably forced to use alternative means to meet quotas.”

As a result of the workers’ actions, customers were subjected to more fees and a diminished ability to obtain credit anyplace else. For example, their credit reports were affected, thereby having an adverse impact on their capacity to obtain a car loan or mortgage. Customers also felt compelled to get identity theft protection because Wells Fargo accounts were being opened in their names without the customers’ consent. wells-fargo-robbery

The city is therefore attempting to secure a court order from the Los Angeles Superior Court that would mandate that the bank act in compliance with the law. It is also seeking to have Wells Fargo penalized with a fine of $2,500 per violation in accordance with California’s unfair competition statute and restitution.

In addition, the city alleges in its lawsuit that Wells Fargo workers were dishonest with customers when they told them that they had to open more accounts in order to get a checking account. Moreover, workers incorrectly informed customers that there were no fees associated with the accounts, and pressured customers into buying extra products, such as life insurance.

Furthermore, the city claims that Wells Fargo was in violation of state and federal law when it misappropriated customers’ private information, and neglected to inform customers that their private information had been misused. In response, representatives from Wells Fargo said that they have disciplined a few employees who have misappropriated customers’ personal information in order to open accounts without their permission.

Ken Wallman, a business owner, was one customer whose private information was misused by Wells Fargo workers. Wallman told Los Angeles Times in an interview that he opened a checking account with Wells Fargo, but eventually he had a dozen additional accounts because the bank opened additional accounts without first obtaining his approval. When Wallman tried to close the accounts, Wells Fargo refused and, instead, charged him extra fees.

Unfair Competition Law

Under California’s Unfair Competition Law (UCL), there are five definitions of unfair competition outlined in §17200. They are as follows:

  1. An illegal business act or practice;
  2. A business act or practice that is unfair;
  3. A business act or practice that is fraudulent;
  4. Advertising that is unfair, deceptive, untrue, or misleading; or
  5. Any act forbidden by §§17500-17577.5.

Under §17203, the court can order injunctions to prevent the unfair competition as well as order other equitable defenses. Victims of unfair competition can obtain relief through the court, which can order that money or property be returned to them. In the event that an injunction is issued in accordance with §17200, those who intentionally engage in unfair competition could be penalized up to $6,000 per day. And when a lawsuit is filed by a government agency, such as the city of Los Angeles, civil penalties of up to $2,500 per violation are permitted.

Failure to Hire Due to Religious Attire

When 17-year-old Samantha Elauf applied for a job at Abercrombie and Fitch in 2008, she was not hired even though she received a high score during the interview process. The assistant manager who conducted the interview thought she was qualified, but the manager was concerned that Elauf’s hijab would be in violation of the company’s “Look Policy.” The policy did not permit caps to be worn. After communicating with her district manager about the issue, the assistant manager agreed to lower Elauf’s score because Elauf wore a hijab.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Elauf as a result of being denied a position at the retail store in Tulsa, Oklahoma. A district court ruled in her favor, granting the Muslim teen damages in the amount of twenty thousand dollars. However, the decision was reversed by the Tenth Circuit Court of Appeals, which held that an employer is free from liability for neglecting to “accommodate a religious practice” if a potential employee had not requested the accommodation. Samantha Elauf, Majda Elauf, P. David Lopez

However, the Supreme Court sided with Ms. Elauf in an 8-1 decision, with Justice Thomas the lone dissent. Justice Antonin Scalia spoke on behalf of the high Court when he said “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Moreover, during oral arguments, Justice Samuel Alito stated that the managers at Abercrombie could have questioned her as to whether she would wear the head scarf while at work for religious reasons. But they did not ask her this question. Instead, they made the assumption that she wore the scarf as part of her religious practice, and refused to hire her for that reason.

Dress Codes Cannot Violate Civil Rights

While it is acceptable for an employer to have a dress code, it is unconstitutional for an employer to discriminate against someone because of religious practice. For instance, if an employer terminates, or refuses to hire, someone because of their religious practice, and does not even attempt to accommodate them, then that counts as discrimination under Title VII of the Civil Rights Act of 1964.

Given Abercrombie’s reputation for exclusivity in its hiring and marketing practices, it is unsurprising that the store refused to hire someone because of her religious practice of wearing a hijab. Nevertheless, the managers should have realized that such a denial was a form of discrimination, and in violation of the law.

However, the company seems to be leaning towards becoming more inclusive, especially in light of a prior class-action discrimination lawsuit, which alleged that Abercrombie discriminated against minorities, including African-Americans, Latinos, and Asian-Americans, in its hiring practices and its marketing. In fact, just this past April, the company stated that it would be more “inclusive and diverse” in its hiring methods, and adopt a “more individualistic” dress code.