Rojgar Job News

Back in 2011, I discussed a titillating case of strip club dancers (or, a decision says, “performers”, “entertainers”, “dancers” or even “exotic dancers” — although not “strippers”) who were trying to claim wages for the time they worked at a popular strip club in Connecticut. The story at the time was that they were compelled to arbitrate their claims.  So private arbitration should mean end of the public story, right? Well, as it turns out, no. And the analysis of the case has some very real practical implications for employers. I’ve been going to back through some older posts to do some followups. And in doing so, I discovered that this case had a public ending — except for the fact no one reported on it. It seems that the dancers won big in an arbitration proceeding and then asked the court to “confirm” the award — making the whole thing public.  (You can read the arbitrato...

In a recently-released Advice Memorandum dated April 16, 2019, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel (“GC”) determined that drivers utilizing Uber Technologies’ smartphone application-based rideshare platform are independent contractors, not employees, under the National Labor Relations Act (“NLRA”).  In arriving at this conclusion, the GC utilized the independent contractor test announced earlier this year in the NLRB’s decision   SuperShuttle DFW, Inc. , which we reported about here.  In SuperShuttle , the NLRB reinstated the common law agency test, a ten-factor test in which no one factor is determinative.  Applying those factors in the Uber memorandum, the GC noted that the overarching principal to consider under the SuperShuttle test is a worker’s “entrepreneurial opportunity” – workers who have significant control over their profits and losses ar...

AB 5, and its “ABC test,” expected to have greatest impact in “gig economy” jobs, but impact certain to be even more widely felt After a summer of lobbying and debating, the California Assembly adopted AB 5, a headline-grabbing law purporting to transform the status of gig-economy workers at companies like Uber, Lyft, and DoorDash.  Proponents of the law assert that it will force those companies to treat those persons performing work as independent contractors like employees, with all of the legal protections that entails – minimum wage, overtime, workers’ compensation, paid sick leave and reimbursement of expenses just to name several.  Critics at companies like Uber are publicly declaring they do not believe it will change their relationship with gig workers while they are reportedly meeting behind closed doors with California Governor Gavin Newsom, who has stated he is still open to negotiating possible changes to the law before he signs ...

January 10, 2020 Update to AB 5 Challenges Trucking Industry :  On Wednesday, January 8, 2020, a California state court ruled that AB 5 does not apply to the trucking industry because the state statute is preempted by federal law.  This state court ruling lays a solid foundation for the federal court hearing on the trucking industry’s request for a preliminary injunction on January 13, 2020 based on the same federal preemption argument.  The Federal Aviation Administration Authorization Act of 1994 prevents states from enacting laws that affect the prices, routes, or services of trucking companies in transporting goods.  The court found on January 8 that AB 5 does just this because it effectively bars trucking companies from using independent contractor drivers. Uber and Postmates :  Also on January 8, 2020, Uber, Postmates, and two of their drivers moved for a preliminary injunction to bar AB 5 from being enforced against gig-economy companies a...

The keen follower of IR35, for there must be such a person, will have seen reports in the Press about the blanket approaches to PSC contractors being taken by some businesses of a size and/or reputation that they don’t need to worry too much about the views of those who may wish to work for them. Some have gone for the nuclear option of just not dealing with PSC contractors at all, and some prefer the mere scorched-earth route of simply deeming all such contractors to be within IR35 and deducting the tax on the lot of them. Cue great rejoicing at HMRC, one would have thought, but much misery and frustration among those many PSC contractors supplying services which would not on any view fall within IR35, and also the agencies supplying them. They have noted that while wrongly treating a contractor as outside IR35 when he should be within it potentially brings HMRC retribution of Old Testament severity down upon the end-user, there is nothing equivalent for deeming a contractor with...

On March 17, 2020, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a temporary, three-month exemption from certain equal employment opportunity requirements for new supply and services and construction contracts “entered into specifically to provide Coronavirus relief.”  In the National Interest Exemption Memorandum (NIE Memorandum), the OFCCP provided modified equal opportunity clause language that federal contractors may use in covered contracts and exempts such contracts from all affirmative action obligations, posting requirements, solicitation/advertisement requirements, and mandatory job listing requirements under the following laws administered by the OFCCP: Executive Order 11246 (which prohibits federal contractors from discriminating against employees based on race, color, sex, sexual orientation, gender identity, religion, disability, veteran status, or national origin); Section 503 of the Rehabilitation Act o...