In a major victory for Uber Technologies, Inc., the Ninth Circuit Court of Appeal reversed a lower court’s ruling, which held that a lawsuit filed by current and former drivers could proceed as a class action. In finding for Uber, the Ninth Circuit ruled that the claims against Uber for misclassifying their drivers as independent contractors must be filed individually as opposed to a class action, thereby dramatically reducing the value of these claims. The Uber drivers alleged that Uber misclassified them as independent contractors, thereby denying the drivers reimbursements, tips, and other protections required for employees. Although the drivers had filed a class action against Uber, they had signed an arbitration agreement that included a class waiver. However, the lower court held that the arbitration agreement was unenforceable, and thus ruled that the case could proceed as a class action. Uber then appealed, and the Ninth Circuit ruled that “[a]s the class certification by the district court was premised on the district court’s determination that the arbitration agreements were unenforceable, the class certification must also be reversed.” This decision highlights the importance of employers including mandatory arbitration agreements (which have a class waiver) as part of their workplace policies.
For any questions about implementing an arbitration agreement that contains a class waiver for your workplace, please give us a call at Toll Free 1-562-888-0126 or email email@example.com for more information.
Read the Ninth Circuit Court of Appeal’s decision here.
A former Facebook content moderator, Selena Scola, is suing Facebook alleging that she developed Post Traumatic Stress Disorder (PTSD) from reviewing disturbing material on a daily basis as part of her job duties.
Scola worked at Facebook from June 2017 until March 2018. She alleges that as part of her job, she witnessed thousands of acts of extreme and graphic violence.” As a content moderator, Scola enforced the social network’s rules prohibiting certain types of content on its systems. Scola alleges that she developed PTSD “as a result of constant and unmitigated exposure to highly toxic and extremely disturbing images at the workplace.” Facebook hired Scola through a third-party contracting company, Pro Unlimited. The complaint also charges the Boca Raton, Fla.-based contracting company with violating California workplace safety standards.
Facebook relies on thousands of moderators and A.I. to determine whether posts violate its rules against violence, hate speech, child exploitation, nudity and disinformation. The Company will be hiring another 20,000 globally. Scola’s lawsuit also demands that Facebook and its third-party outsourcing companies provide content moderators with proper mandatory on-site and ongoing mental health treatment and support, and establish a medical monitoring fund for testing and providing mental health treatment to former and current moderators.
Companies with content moderators will need to consider safety measures to ensure safe working conditions for these employees, although workers’ compensation insurance coverage is intended to cover workplace injuries such as PTSD. It is interesting to note that this lawsuit was filed in superior court as opposed to the Workers’ Compensation Appeals Board. For any questions about setting up a workplace safety program, please give us a call at Toll Free 1-562-888-0126 or email firstname.lastname@example.org for more information.
To view the full article from Washington Post By Elizabeth Dwoskin, posted on September 24, 2018, click here.
Employers in California are required by law to have an effective written Injury and Illness Prevention Program (IIPP). The benefits of an effective IIPP include improved workplace safety and health, better morale, increased productivity, and reduced costs of doing business. Whether you need to develop a written IIPP or improve your existing IIPP, this etool developed by Cal/OSHA will help employers comply with their legal obligations. This etool will produce a written IIPP once the employer answers a set of questions (see How to Create Your Written IIPP – Questions). Each of the answers will automatically appear underlined in a written IIPP, which is specific to the employer’s workplace. To produce a complete written IIPP the employer must fully answer all the IIPP questions. The written IIPP produced by the employer will not be sent to Cal/OSHA. For any questions about setting up an IIPP, please give us a call at Toll Free 1-562-888-0126 or email email@example.com for more information.
There are also Effectiveness Questions for employers to evaluate how effective their IIPP is and Sample Forms and Checklists to help employers put their IIPP into practice and document what they have done.
Access to the IIPP etool is here.
Starbucks Corporation is planning to shake-up its organization. This move will include corporate layoffs starting at top levels, as the company tries to reverse stagnant sales and rekindle investors’ interest in the company.
The organizational changes will begin in late September and continue into November 2018. As of October 1, 2017, Starbucks employed about 10,000 in U.S. support facilities, store development, and roasting, manufacturing, warehousing and distribution operations.
For any questions about layoffs, including compliance with the Warn Act, please give us a call at Toll Free 1-562-888-0126 or email firstname.lastname@example.org for more information.
For more information on this topic, see Bloomberg News here.
The U.S. Court of Appeals for the Ninth Circuit has revived a lawsuit, Alec Marsh v. J. Alexander’s LLC, filed by a group of servers and bartenders that could have major consequences for the restaurant industry in some states under federal law. The lawsuit addresses whether a subminimum wage can be used for non-tipped work, otherwise known as a “tip-credit”. Under federal law, and in some states, employers are allowed to credit tips toward the employee’s minimum wage. California law does not permit tip-credits, and thus all restaurant employees in the state must be paid at least minimum wage even if they receive tips.
The lawsuit was filed by a server, Alex Marsh, who alleged his employer unfairly paid a tip-credit wage for tasks unrelated to serving, like maintaining the soft drink dispenser and cleaning toilets. Thirteen other servers and bartenders joined in the lawsuit alleging similar complaints at franchised units of Denny’s, IHOP, P.F. Chang’s China Bistro, Arriba Mexican Grill and an AMC Theatre.
Alexander’s had won a dismissal of the case at the district court level. But the Ninth Circuit reversed that decision, thereby validating the plaintiffs’ complaints and agreeing with a similar argument in the Eighth Circuit. At issue in the lawsuit is the Department of Labor’s guidance that prohibits restaurant employers from using a subminimum wage if workers spend more than 20 percent of their time on non-tipped work, commonly known as the “80/20 rule.”
Marsh argued that he spent more than 20 percent of his time on non-tipped work, but the Phoenix-area J. Alexander’s where he worked paid him the tip-credit wage. For any questions about the law on tipping, please give us a call at Toll Free 1-562-888-0126 or email email@example.com for more information.
For more information about Alec Marsh v. J. Alexander’s LLC, as reported in Nation’s Restaurant News, on September 20, 2018, click here.
A group of female workers claim that Facebook and 10 other employers engaged in unlawful gender discrimination by excluding them from job ads. The ACLU, Outten & Golden LLP, and the Communications Workers of America (CWA) have filed the charges with the Equal Employment Opportunity Commission (EEOC) against Facebook and 10 other employers, on behalf of the female workers. According to the lawsuit, Facebook posted job ads to male Facebook users only, and excluded women from receiving the ads.
The charges were filed on behalf of three female workers, CWA and the hundreds of thousands of female workers CWA represents. According to the charges, most of the employers’ male-targeted ads highlighted jobs in male-dominated fields. The lawsuit also alleges that Facebook delivers job ads selectively based on age and sex categories that employers specifically choose, and that Facebook earns revenue from these ads.
In general, online platforms are not liable for publishing content created by others; however, counsel for the workers asserts that Facebook can be held liable for: (1) creating and operating a system that allows employers to select the gender and age of the people who get their job ads, including providing employers with data on users’ gender and age for targeting purposes; (2) delivering the gender- and age-based ads based on employers’ preferences; and (3) acting as a recruiter connecting employers with prospective employees.
In December of 2017, a similar lawsuit, Communications Workers of America et al. v. T–Mobile US Inc. et al., was filed against T-Mobile, Amazon, Cox Communications, and numerous other employers alleging a discriminatory practice of excluding older workers from receiving job ads on Facebook for available positions at their companies.
Employers, HR administrators, and risk managers should scrutinize recruiting practices to ensure that ads and other recruiting tools are targeted to a diverse group, unless there is a bona fide occupational qualification that can justify a specific group. For any questions, please give us a call at Toll Free 1-562-888-0126 or email firstname.lastname@example.org for more information.
For more information about this lawsuit click here: ACLU Sues Facebook and Other Company’s For Gender Discrimination in Job Ads.
The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed suit against a Del Taco located in Rancho Cucamonga alleging that male supervisors harassed numerous female employees (most of whom are in their teens). The EEOC’s complaint alleges that management subjected the young workers to harassment ranging from inappropriate sexual comments to unwanted physical touching.
The female workers claim that they made a formal report of the harassment to Del Taco, but the company allegedly failed to take corrective action against the supervisors accused of the harassing conduct. Instead, the company allegedly retaliated against the employees by reducing their hours and implementing schedule changes.
This is an important reminder to all employers, Human Resource professionals, and risk managers to take all complaints seriously, and when deemed appropriate to initiate a timely, objective and thorough investigation to ensure the matter is resolved in a quick and timely fashion. Any necessary remedial measures should be taken as soon as possible.
To learn about how YourVirtualHR’s investigative software and on-site or web based sexual harassment training can help you and your organization avoid these costly complaints, maintain a civil workplace, and reduce risk, please give us a call at Toll Free 1-562-888-0126 or email email@example.com for more information.
For more information on the EEOC’s suit against Del Taco click here. (EEOC v. Del Taco LLC, Case No. 5:18-cv-01978)