Archive for the 'Employment' Category

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.

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.

Employer Who Provides Bucket as Toilet Faces $4M Lawsuit

Andrew Lane was using the restroom at work when he was killed by carbon monoxide poisoning. Mr. Lane’s crew was cleaning the gutter and pressure washing a home in Oregon when Lane was killed. His employer, Superior Home Maintenance, only provided a bucket for its employees’ restroom needs. So when 22 year old Lane went to use the bucket in the rear of the work truck, he was poisoned by the carbon monoxide emitted by an adjacent washer.

The tragic incident occurred on May 13, 2014, in the afternoon, after which Lane’s co-workers discovered his body in the rear of the truck. They had been working outside a home, and according to the attorney for the victim’s estate, they were instructed not to use the bathrooms inside the home. The lawsuit depicts the company’s toilet policy for workers as “demeaning, debasing, and dehumanizing.”

In its defense, Superior Home Maintenance claimed that the main cause of the worker’s death was use of methamphetamines, and not carbon monoxide poisoning. While the first autopsy revealed that the victim died from using methamphetamines, a second autopsy determined that carbon monoxide poisoning was the cause of death. Bucket system toilet

The results of the second autopsy were confirmed by a report from the Occupational Safety and Health Administration (OSHA) that was issued in September 2014. According to the report, the pressure washer, which was secured to the floor of the cargo area inside the truck, filled the truck with toxic amounts of carbon monoxide in less than one minute.

Lane’s estate alleges that his employer was aware he suffered from irritable bowel syndrome (IBS), a digestive disorder that is marked by a sudden and frequent need to use the restroom. OSHA requires that on the majority of jobs, employees have reasonable access to toilet facilities. An investigation conducted by OSHA disclosed that on the day of the victim’s death, the closest public restroom was eight minutes away from the job site by car.

Just three years ago, in 2012, two workers received a jury award of $332,000 in a lawsuit against their employer, who failed to provide toilet facilities at their job site. Like Andrew Lane, the two men also used a bucket, and after filing a complaint with OSHA, an inspector from OSHA cited the company for neglecting to provide bathroom facilities. The men were terminated from their jobs that same month. As the jurors in that case stated, “having easy access to a toilet is a basic human right.”

Mr. Lane’s death could easily have been prevented if his employer had merely read and taken heed of the warnings outlined in the owner’s manual for the pressure washer. Among the warnings were the following:

  • “Exhaust contains poisonous carbon monoxide gas that can build up to dangerous levels in closed areas.”
  • “Never run the engine in a closed or even partially closed area where people may be present.”

Had his employer had any respect or concern for him and his co-workers, management would have provided them with adequate toilet facilities. It is unconscionable that so many workers feel that they have to endure inhumane and atrocious conditions in the workplace, and are overcome by feelings of helplessness and powerlessness. And all too often, they don’t complain for fear of losing their jobs, which may be their only source of income.

Boy Scouts Might Finally Revoke the Ban on Gay Leaders

Robert Gates, the former Defense Secretary and current president of the Boy Scouts, has called for the ban on gay Boy Scout leaders to be revoked. Although he’s not requesting that the policy be immediately changed, he made it clear that the policy should be revised during this time of social progress.

robert gates boy scouts gay rightsGates pointed out that legal issues could arise if the policy is not changed soon. He noted that a court order could change the policy, possibly in reaction to discrimination lawsuits that could occur.

Following Gates’ announcement, organizations can begin using their best judgment when hiring scout leaders. However, with 70% of the scout units sponsored by churches, it still seems unlikely that a significant number of gays will be hired for leadership positions.

How This Issue Extends Beyond the Boy Scouts

Discriminating laws continue to restrict the LGBT community from participating in certain activities. For example, this population is often limited in terms of adoption rights, marriage, and choosing which bathroom to use.

During the civil rights movement, Jim Crow laws discriminated the black population to no end. Seating on the bus, bathrooms, and water fountains were segregated-to name just a few. Discriminatory laws like these were deemed unconstitutional, and were eventually banned. But aren’t laws that restrict the LGBT community of the same caliber?

The ban on gay leaders in the Boy Scouts stems from the unprovoked myth that gay men are pedophiles. This ban only exemplifies this archaic view and directly contradicts Americans’ supposed view that every citizen is equal. Isn’t this also an employment discrimination violation? In every other organization or company, workers have the right to sue if they feel they are discriminated against based on their sexual orientation (in most states). Why should the Boy Scout organization be any different?

Putting the responsibility of hiring Boy Scout leaders on sponsoring organizations that mostly consist of churches creates a huge problem. Most Christian leaders have proven their distaste and disproval of the LGBT community. Putting them in charge of hiring leaders won’t change the existing policy. What will actually make a difference is putting a non-biased third party with no religious affiliation in charge of the hiring process. If Gates truly wanted to make a difference, he would demand that churches have no part in this decision.

The LGBT community is considered a second class group of people. Although our nation’s views have changed about the community, lawmakers are slow in the process of allowing them the same rights as every other citizen. These discriminatory policies are the Jim Crow laws of our time. The sooner lawmakers can see this and realize the need for change, the faster American citizens can live in harmony together.

NYC Nail Salon Scandal Highlights Larger Issues of Immigrant Exploitation

Gov. Andrew M. Cuomo ordered an emergency investigation into New York City’s nail salons following the revelation most workers are underpaid or not paid at all. The allegations also revealed the toxic chemicals nail salon workers are exposed to and the lack of basic rights employers are granting them.

nail salon new yorkIn addition to the investigation, salons must follow new rules to ensure the safety and competent pay to their workers.

A good portion of nail salon workers are immigrants, coming into the U.S. hoping for an opportunity to make more money. This means most of them do not speak any English and are not familiar with the rights workers in the U.S. have. Realizing the language barrier, Gov. Cuomo is also launching a six-language education campaign that informs the workers of their rights.

Many salon owners pay their workers under minimum wage or don’t pay them at all. Instead, workers must rely on tips from customers as their pay. Salons will also be required to pay back wages owed to workers, and if they refuse, the salon will be shut down. Salons are also now required to publicly post signs that inform workers of their rights; the sign will be in a half dozen languages.

As for the toxic chemicals workers are exposed to, this unfortunately is part of the job. But to combat illnesses as much as possible, workers will now be required to wear masks and gloves while working.

The investigation into NYC’s nail salons is a huge step for immigration worker reform. But it raises a bigger question. Just how many immigrant workers are being exploited for cheap pay?

The Larger Problem of Immigrant Exploitation

Right now, about 6.5 million immigrants work in the U.S. They are more susceptible to exploitation because employers can pay them “under the table” since they are undocumented. Most immigrant workers do not realize even if they are undocumented, they are protected under the same basic federal and state rights as documented workers. Immigrant workers are at risk of unpaid wages, dangerous conditions, uncompensated workplace injuries, and discrimination.

Most immigrant workers do not pursue their rights or fight against discrimination because they are illegal and are afraid they will be deported. For many immigrant workers, deportation means no hope for their families. A large portion of immigrant workers come to the U.S. to make money to send back to their families in their home countries. Without this income, even the little income they do make, immigrant families back home have very little chance of survival.

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