Tag Archive for 'Employment'

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.

How Wellness Programs Might Result in Employment Discrimination Lawsuits

Employers beware: the EEOC is bringing lawsuits against businesses that use wellness programs to discriminate against disabled employees. The EEOC claims that employers are using wellness programs to subject employees to medical tests unrelated to job performance in an effort to discriminate against disabled employees.

wellness programsIn August 2014, the EEOC filed a suit against Orion Energy Systems for discriminating against Wendy Schobert. The EEOC alleges that Orion shifted premium costs to Schobert after Schobert refused to participate in Orion’s wellness program. When Schobert complained, Orion fired her. Earlier this month, the EEOC filed a second wellness program lawsuit against Flambeau, Inc. The EEOC alleges that Flambeau violated the Americans with Disability Act (ADA) by cancelling employee Dale Arnold’s medical insurance after he refused to complete biometric tests and health risk assessments.

Due to the popularity of wellness programs, the EEOC is expected to file more wellness program suits in the near future. Kaiser Family Foundation reports that about 94% of businesses with over 200 workers and 63% of smaller employers offer wellness programs. A RAND Employer Survey shows that 80% of employers with wellness programs screen their employees for health risks for program planning purposes.

Ironically, the federal government is partly responsible for the recent rise of wellness programs. The Affordable Care Act (ACA), or Obamacare, offers 30% to 50% tax credits to employers who get their employees to meet health goals. Many employers believe the EEOC’s recent lawsuits constituted a bait and switch by the federal government: Obamacare incentives them to create these wellness programs for their employees, but then the EEOC sues the employers for implementing wellness programs in a manner that saves employers on insurance costs.

Doing the Right Thing without Being Punished for It

Health employees are obviously a good thing. The employee lives longer, the employer doesn’t have to change employees as often, and everyone saves money when people don’t need medical attention. The question becomes: how does an employer get ACA tax credits without triggering an ADA lawsuit?

First, an employer cannot defend against an EEOC lawsuit by claiming that the employer had to comply with the ACA. The ACA’s tax credits are completely voluntary. Employers aren’t mandated to create wellness programs. If an employer is slapped with a lawsuit after implementing a wellness program, the employer can’t argue that the employer was entrapped because the ACA is voluntary while the ADA is not.

Okay, so employers can’t argue that they can’t comply with both laws. Employers should probably avoid creating wellness programs that will result in a discrimination lawsuit. Let’s examine what Flambeau and Orion Energy System did wrong.

Flambeau and Orion both attempted to subject their employees to unwanted medical tests. An employer might want these tests to see what kind of program they need and to see how expensive their insurance will be. The problem is that the ADA only permits medical tests on employees if the tests are related to work performance. Insurance coverage and employee health are typically not work related. Employers cannot, and should not, compel employees to take medical exams.

In the EEOC’s collective minds, shifting medical insurance costs from the employer to the employee violates the ADA’s rule on medical tests. Raising costs on an employee who refuses to undergo an exam is viewed as employee retaliation because the employer is adversely affecting an employee who stands up for an ADA right.

If an employer decides to create a wellness program, the employer should make the program completely voluntary. The employer should avoid forcing employees to pay the premiums if the employees refuse to undergo a test. It is likely that health insurance might be higher, so the employer must consider the costs of a possible EEOC lawsuit against higher insurance if the employer implements a wellness program and an employee refuses to comply with medical exams. Obamacare might want employers to promote good health among employees, but no good deed goes unpunished.

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No Freedom of Speech for Miami Dolphins’ Don Jones

Miami Dolphins safety Don Jones was fined an unidentified amount Sunday and will have to go to educational training after tweeting out a negative comment about Michael Sam, the first openly gay player to be selected in the NFL draft.

miami dolphins don jonesThis raises an important legal question: can an employee of a private, non-governmental organization be fired for his or her assertions to the press about an issue completely unrelated to the job? The answer: yes.

It seems reasonable to think that this situation would violate one’s freedom of speech. However, the First Amendment provides that the government cannot infringe upon our freedom of speech and expression. There are things that are classified as “forums” where, depending on whether it’s a public forum, non-public forum, etc., they can regulate the type of speech.

Since the NFL and the Miami Dolphins are not a Government agency, the First Amendment freedom of speech would not apply in this situation. The First Amendment applies only to government agencies. As a result, the Miami Dolphins can legally can suspend, fine, and freely regulate the speech of its employees

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Talking Politics in the Workplace

Free elections are one of the greatest innovations of the American political system. This sounds a little puzzling given the climate of the present election, but the United States has succeeded in electing almost every one of its Presidents without violence (the Civil War being the exception). In comparison, many other nations can’t hold a single election without their military coming in and declaring the victor.

Still, American political elections can produce enormous tension. Everyone has the right to voice their opinions about the election yet most people will agree that we cannot force individual beliefs onto others. These two rules often come into conflict in employment settings where one side may hold power over another. Of course, these disputes aren’t limited to one party or another. Both Romney and Obama supporters have called the fundamental values of free speech and freedom from oppression into question in each of these illuminating cases.

In Pennsylvania, a geometry teacher named Lynette Gaymon mocked and harassed sixteen year old Samatha Pawlucy for wearing a T-Shirt promoting Romney-Ryan. Gaymon claimed that Charles Carroll High (the school they attended) was a “Democratic school” and that wearing the T-shirt was like wearing a KKK robe. The Port Richmond District has issued an apology and Gaymon has apologized for her statements, although the damage has already been done.

Meanwhile, Bob Murray, the CEO of Murray Energy had his workers attend a Romney rally. If Mitt Romney wondered why so many coal miners attended his August rally in Ohio, Romney didn’t show it as the Republican candidate told the miners what a great boss they had. His statement probably didn’t take into account that Murray had forced his employees to attend Romney’s rally –without pay–.

Last and probably least, Richard Lacks, CEO of Lacks Enterprise, sent a letter to the workers of his automobile plants in Michigan explaining that they should expect a bonus soon. Oh, and the company would be passing the costs of health care to its employees if Obama won his reelection this November.

It is obvious that this election is bringing out the worst of employer-employee relations. If there is a political division in the workplace, you should pay attention to each of these stories to avoid any excessive potential conflicts.

First, if you interact with any citizens in any government capacity, you should avoid pushing politics to those citizens. Gaymon, the teacher from Pennsylvania, violated the student’s free speech. Second, avoid breaking laws while promoting politics. Bob Murray might soon find himself on the receiving end of a lawsuit for withholding pay for non-work activities from his miners.

Finally, and most importantly, everyone has a right to free speech, even the evil boss who passes taxes down to his employees. Richard Lacks might not have a lot of tact, but he does have the right to express his views to his own employees (he’s also surprisingly honest and open). The bonus could be seen as a bribe and his statement that he would pass the increased cost of Obamacare to his employees could be seen as a threat. However, it is unclear if the bonus is connected to the political message in any way other than being in the same letter.

The statement about passing the costs is also a reasonable business decision; many businesses are expected to pass the costs of mandatory healthcare to either their consumers or their employees. Furthermore, Lacks can’t be threatening retaliatory action against his employees if they vote for the President because Lacks has no way of finding out exactly which employees followed his words.

Some people might look at all these rules and just throw their arms in the air in frustration and decide that they should just avoid talking about politics, at least in the office. This is, however, the wrong conclusion to draw from all these stories. Our predecessors did not fight for these rights so that we could hide ourselves behind walls of self-censorship. Laws are minimal standards of conduct which all citizens are held to. Reasonable people should be able to discuss politics with coworkers and even employers without fear of pay cuts or harassing behavior.

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