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Speaker Firms and Organization:
Fisher & Phillips
Christopher M. Ahearn
Of Counsel
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Presented By:
September 30, 2016
1
Partner Firms:
Ballard Rosenberg Golper & Savitt, LLP
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
Richard S. Rosenberg
Partner
Berkeley Research Group
Elizabeth Arnold
Director
September 30, 2016
2
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September 30, 2016
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Partner Firms:
September 30, 2016
6
For the past 30 years, Ballard Rosenberg Golper &
Savitt, LLP has been providing employers throughout
the U.S. with labor and employment law advice and
representation. The firm engages exclusively in the
practice of labor and employment law on behalf of
employers and management. We advise our clients
on formulating and implementing labor and employee
relations policies to achieve desired goals without
resort to adversary proceedings. Our objective is to
help clients avoid problems, rather than merely react
to crises. When the only option is litigation, we have a
winning track record before federal and state courts
(over 100 jury victories), and the administrative
agencies which enforce federal, state and local
employment laws. And, we have had the privilege of
making very favorable law for our employer clients
and the employer community . Our primary office is in
Los Angeles, CA, and we have satellite offices in
New York, NY, and Charlotte, NC.
We are national and local, with attorneys admitted in
just about every U.S. jurisdiction. We represent a
wide range of public and private employers. Our
clients include employers in the agriculture,
automotive manufacturing, automobile dealership,
banking, broadcasting, casino and gaming,
construction, health care, hospitality, insurance, legal
and professional services, manufacturing, mining,
real estate, retail, technology, transportation, and
wholesale and distribution industries, as well as state
and local government entities, non-profit
organizations, schools, colleges and universities.
Berkeley Research Group is a leading global
strategic advisory and expert consulting firm that
provides independent advice, data analytics,
authoritative studies, expert testimony, investigations,
and regulatory and dispute consulting to Fortune 500
corporations, financial institutions, government
agencies, major law firms, and regulatory bodies
around the world.
BRG experts and consultants combine intellectual
rigor with practical, real-world experience and an in-
depth understanding of industries and markets. Their
expertise spans economics and finance, data
analytics and statistics, and public policy in many of
the major sectors of our economy, including
healthcare, banking, information technology, energy,
construction, and real estate.
BRG is headquartered in Emeryville, California, with
offices across the United States and in Asia,
Australia, Canada, Latin America, the Middle East,
and the United Kingdom.
Brief Speaker Bios:
Richard S. Rosenberg
Richard began his career as a workplace lawyer in 1977 after obtaining degrees from Cornell University’s School of Industrial & Labor
Relations and the Santa Clara University law school. Richard has spent his entire career assisting management defend and risk
manage workplace related legal matters and proposed personnel transactions. His experience in the trenches enables Richard to
provide management with a clear-eyed assessment and strategic options. Richard’s style is one which motivates his clients and
adversaries to work cooperatively to find creative solutions to the toughest workplace challenges. His reputation as a formidable
opponent and labor law strategist who is both fair and trustworthy has resulted in peers naming him to the list of Southern California
Super Lawyers every year since the inception of that honor and a listing in Best Lawyers in America since 2009.
September 30, 2016
7
Christopher M. Ahearn
Chris is Of Counsel in the firm's Irvine office. He has represented employers in litigation matters for nearly all of his legal career. He
has represented employers in matters before state and federal courts in California, in arbitration, and before the Division of Labor
Standards enforcement, the Equal Opportunity Employment Commission, the California Department of Fair Employment and Housing,
and the Employment Development Department. Chris has significant experience in complex multi-party and class action claims, and
his cases have included high-profile matters with substantial media coverage. Chris has also represented employers in numerous
claims brought under the California Labor Code Private Attorneys General Act of 2004 (PAGA).
Brief Speaker Bios:
Jeffrey P. Fuchsman
Jeffrey has been practicing labor and employment law since 1982. He joined Ballard Rosenberg in 1988 and he heads up the firm’s
wage-hour practice. Jeffrey also represents employers in a wide range of labor and employment matters, and related litigation,
including individual and class action wage and hour lawsuits, wrongful termination, discrimination, and sexual harassment cases. In
addition to his litigation practice, Jeff counsels companies on day-to-day employment law issues, including wage and hour, family and
medical leave, drug testing, investigations, employee discipline, and terminations. He has also lectured and authored articles on
various labor and employment law topics, including mandatory arbitration, wage and hour compliance, punitive damages, social
networking, and discrimination. As a litigator, he regularly appears in state and federal courts throughout California, and has argued
cases before the California Court of Appeal and the U.S. Court of Appeals for the Ninth Circuit.
September 30, 2016
8
Elizabeth Arnold
Elizabeth Arnold has 15 years of experience advising clients on issues related to wage and hour compliance. She consults with
leading law firms and companies nationwide on state and federal class action wage and hour litigation cases across industries ranging
from retail and beverage delivery to meat processing and gaming.
Ms. Arnold consults with clients to develop and implement research methodologies that address complex legal compliance issues,
including misclassification (i.e., exempt vs. non‐ exempt employees, independent contractor), donning and doffing, off‐the‐clock work,
missed meal and rest breaks, and tip pooling. She utilizes research methodologies that include the use of statistical sampling and
large‐scale data collection using interview, questionnaire, and observation techniques.
► For more information about the speakers, you can visit: https://theknowledgegroup.org/event-homepage/?event_id=1667
The concept of the on-demand workforce or gig economy is not a novel concept, but the ubiquity of smartphones
and mobile applications has driven this rapidly evolving trend. Estimates vary, but one survey says that more than
50 millions of American workers entered the gig economy workforce in 2015 and it is more likely to boost in the
next few years to come.
On this type of workforce, workers operate as independent contractors wherein they enjoy the freedom of working
on their own schedule but are not provided with the same benefits similar to that of a traditional employee. In
return, companies that use this platform draw savings by reducing employee-related expenses such as payroll
taxes and employment benefits.
However, along with the upsurge of gig economy comes the rise of lawsuits filed against companies by workers
alleging violations of federal and state labor laws. The question whether gig workers fall in the classification of
employees or independent contractors often arise, but courts litigating related cases have varying opinions that
make the gig economy even more confusing. Companies should take this and other issues on gig economy into
heedful account to avoid unnecessary future lawsuits.
…
September 30, 2016
9
In a two-hour LIVE Webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group
will discuss the significant and latest issues on gig economy specifically on wage and hour liability and litigation
risks. Speakers will identify potential liability issues and provide strategies to avoid and minimize liability and
potential claims.
Key issues that will be covered in this course are:
• The Pros and Cons of Gig Economy
• Identifying "Employees" and "Independent Contractors"
• DOL Actions on Gig Economy-related Issues
• Recent Litigations Against On-Demand Companies
• Best Practices to Avoid Liability Issues and Potential Claims
September 30, 2016
10
Featured Speakers:
September 30, 2016
11
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
Introduction
Richard began his career as a workplace lawyer in 1977 after obtaining degrees from Cornell University’s School of Industrial &
Labor Relations and the Santa Clara University law school. Richard has spent his entire career assisting management defend
and risk manage workplace related legal matters and proposed personnel transactions. His experience in the trenches enables
Richard to provide management with a clear-eyed assessment and strategic options. Richard’s style is one which motivates his
clients and adversaries to work cooperatively to find creative solutions to the toughest workplace challenges. His reputation as a
formidable opponent and labor law strategist who is both fair and trustworthy has resulted in peers naming him to the list
of Southern California Super Lawyers every year since the inception of that honor and a listing in Best Lawyers in America since
2009. Recognized as one of the state’s leading experts of workplace law, with a special emphasis on wage-hour law, Richard has
lectured extensively for bar associations, trade organizations and management groups throughout the United States to
thousands of lawyers, human resources professionals, business executives and management personnel. Richard has also
published over 75 articles and legal commentaries in numerous trade publications and legal journals and is the creator and
principal author of the firm’s widely read e-bulletin Compliance Matters. Richard is a recognized expert in wage hour law, having
co-authored the chapter on wage-hour law in the widely read treatise Advising California Employers (CEB) and the chapters on
the Payment of Wages and Overtime, in the treatise California Wage and Hour Law: Compliance and Litigation (CEB)
September 30, 2016
12
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
The “Gig” Economy
• What is It?
• Where is it?
• How prevalent is it?
• Is the trend likely to continue?
• How traditional labor law rules and regulations apply to the gig economy
September 30, 2016
13
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
“Gigsters”
• People who make a living working without any formal employment agreement
• Often work a series of temporary engagements, but that’s not always the case
• Typically treated as so-called “independent contractors”, though few of them have any of the attributes
of a business owner
• Don’t enjoy any of the many benefits and protections which lawmakers (and Courts) have provided to
traditional “employees”
September 30, 2016
14
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Human Capital Trends
• Deloitte Consulting reports that:
– More than 1 in 3 US workers are “freelancers”—a figure expected to grow to 40 percent by
2020.
– 51% of executives in its global survey say they plan to increase the use of contingent workers in
the next 3 to 5 years.
• Is the genie out of the bottle?
September 30, 2016
15
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
It’s Not Just Airbnb and Uber
• Airbnb and Uber embody this trend, but business leaders report that companies in all sectors are
increasingly tapping into freelance workers as a regular part of their workforces.
• Key motivators:
– Cost reduction
– Lack of available of talent
– Demand for flexibility by contingent workers
– Tech enabled competition
September 30, 2016
16
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Tech-enabled Competition
• Technology-enabled talent markets, operating through new technology assisted platforms, are
offering new sources of competition for their labor.
• Some examples:
– Uber and Lyft (transportation-for-hire services)
– Topcoder (programming)
– Handy, Angie’s List, Thumbtack (household repair projects)
– Tongal (ads and videos)
– Hourlynerd (consulting projects)
– Postmates (restaurant food delivery)
– Amazon now (everything!)
September 30, 2016
17
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Key Labor Law Questions
• How does the “gig” model fit into workplace laws and regulations that were specifically written to
govern traditional employer-employee relationships?
• Should it?
• Must the laws adapt to the new business models or should we be content trying to fit the square peg
into the round hole?
September 30, 2016
18
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Employment Laws
• Many of federal, state and local laws protect various aspects of the employment relationship
• Dozens of government watchdog agencies enforce these laws
• P.I. lawyers love the fact that courts hold “employers” legally responsible for the harm caused to third
parties by their “employees”
September 30, 2016
19
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
What’s The Big Deal?
• Governments losing billions in tax revenue
• Plaintiff’s lawyers see huge potential recoveries
• Gig engagers enjoy a significant competitive edge over organizations that engage workers as
employees:
– No workers’ compensation insurance costs
– No employee benefits costs
– No payroll tax costs
– No “labor law” legal compliance costs
– Lower labor costs overall
September 30, 2016
20
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
CA Labor Code Gotcha’s
• Section 226.8:
– fines of 5K-25K if “willfully” misclassify a worker as an IC
– Prohibits pay deductions that couldn't charge EE’s
– Public shaming: ER must post notice of violations on website in area that public can see
(including potential plaintiffs and their lawyers)
•
September 30, 2016
21
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
CA Labor Code Gotcha’s
• Section 2753:
– Advisors who recommend that workers be classified as IC’s can be liable along with their clients
if they are wrong (like CPA’s)
– Layers exempted if giving “legal advice”
September 30, 2016
22
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
How Claims Arise?
• Government audits
• Workers’ compensation claims
• Individual or “class” type lawsuits
• Union organizing
• Agency charges or investigations
• Third party claims for personal injuries
• Lawsuits by competitors burdened with following the rules
September 30, 2016
23
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Who Is An Independent Contactor?
• Unfortunately, it depends who (which agency or court) you ask
• Major players:
– U.S. Dept. of Labor (has declared war on the IC’s)
– IRS
– NLRB
– Federal Courts
– State regulators and Courts
September 30, 2016
24
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Key Issues:
• Is the gig worker truly an independent business person?
• What facts should you assess when making that determination?
• The burden of proof lies with the engager
• Government agencies and courts inclined to rule that it’s employment
• DOL says almost all workers are really “employees”.
September 30, 2016
25
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Huge Risk Of Misclassifying Gigsters
• Inherently risky to classify any worker as an independent contractor because:
– There is no uniformly followed standard to assess the bona-fides of the relationship
– Different agencies and courts use their own formulae
– As a result, a ruling in your favor by one agency or court is not necessarily binding on another
– Contracts aren’t worth the paper they are written on if the relationship doesn’t pass muster
September 30, 2016
26
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
DOL View:
• Is the gigster’s work integral to the business?
• Does the gigster’s managerial skill affect her opportunity for a profit or loss?
• How does the gigster’s relative investment compare to the that of the engaging entity?
• Does the work require special skills and initiative of the gigster?
• Is the relationship permanent or indefinite?
• What is the nature and degree of the engager’s control over the method, manner and means by which
the gigster does the work?
September 30, 2016
27
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
CA EDD Worksheet
• It’s on their website (Form DE 38 Rev. 4 (1-16)
• Analysis is very revealing!
• Help direct you to an “answer”, but it does reveal their bent (that most workers ARE employees)
September 30, 2016
28
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
EDD’s Checklist
• 1. Do you instruct or supervise the person while s/he is working?
• 2. Can the worker quit or be fired at any time?
• 3. Is the work being performed part of your regular business?
• 4. Does the worker have a separately established business?
• 5. Is the worker free to make business decisions which affect his or her ability to make a profit from
the work?
• 6. Does the individual have a substantial investment in their job which would subject the worker to a
substantial financial risk of loss?
• 7. Do you have employees who do the same type of work?
• 8. Does the business furnish the worker with any tools or supplies used to perform the work?
• 9. Is the work considered unskilled or semiskilled labor?
• 10. Do you provide training to the worker?
• 11. Is the worker paid a fixed salary, an hourly wage or on a piece rate?
• 12. Did the worker previously perform the same or similar work for you as an employee?
• 13. Does the worker believe s/he is an employee?
September 30, 2016
29
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
California's View (Borello)
• Key factor: the right to control where, when and how the work is to be done.
• Secondary factors:
– Whether the person is engaged in an occupation distinct from the business of the engager?
– Whether the gigster’s services are part of the engager’s regular work?
– Does the gigster supply her own tools and instrumentalities?
– The gigster’s investment in the equipment/materials needed to do the work
– Does the service require a special skill not possessed by the engager?
– Is this kind of work typically done without supervision by an independent business owner?
September 30, 2016
30
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
More Borello Factors
– Gigster’s opportunity for real profit and loss
– Length of time of the engagement
– The degree of permanence of the relationship
– The method of payment (by the hour r the job?)
– The intent of the parties, as evidenced by a written agreement
September 30, 2016
31
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Call Your Labor Lawyer When….
• A gigster files a claim for state UI/SDI benefits
• A gigster gets injured while working for you
• A gigster injures a third party while working for you
• A gigster makes a wage/benefit claim at a state or federal agency
• You receive an audit letter from the government
• The long term engagement of a gigster
September 30, 2016
32
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
Introduction
Chris is Of Counsel in the firm's Irvine office. He has represented employers in litigation matters for nearly all of his legal
career. He has represented employers in matters before state and federal courts in California, in arbitration, and before the
Division of Labor Standards enforcement, the Equal Opportunity Employment Commission, the California Department of
Fair Employment and Housing, and the Employment Development Department. Chris has significant experience in complex
multi-party and class action claims, and his cases have included high-profile matters with substantial media coverage. Chris
has also represented employers in numerous claims brought under the California Labor Code Private Attorneys General Act
of 2004 (PAGA).
Chris’s practice also focuses on shielding employers from liability by providing advice and counsel in multiple areas of
California employment law, including California wage and hour matters, discipline and termination, and employment policies
and procedures.
September 30, 2016
33
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends - O’Connor v. Uber
• Misclassification case.
• Northern District of California
• “Gratuities” / Cal. Lab. Code § 351
• Expense Reimbursement / Cal. Lab. Code § 351
• Uber loses initial motion to dismiss
• Initial dispute regarding scope of class (California vs. Nationwide)
September 30, 2016
34
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – O’Connor v. Uber
• Summary Judgment – Uber’s Arguments (not a transportation business, drivers provide no service to
Uber, no substantial control over drivers)
• Summary Judgment – Plaintiffs’ Arguments (right to control while on platform, drivers provide a benefit
and service to Uber, Uber is a transportation company)
• Result – Court denies motions, case will ultimately be tried to a jury.
September 30, 2016
35
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – O’Connor v. Uber
• Class Certification – September 2015 Order certifying class of all CA drivers, but excluding:
– Drivers who signed arbitration agreements implemented in June 2014 containing a Court-
ordered “opt out” clause.
– Drivers who drove for third-party transportation companies.
• Court not persuaded by Uber’s arguments regarding 17 versions of driver agreement, and 400
declarations from drivers satisfied with business model.
September 30, 2016
36
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – O’Connor v. Uber
• December 2015 Class Certification Ruling:
– Court reverses prior ruling excluding drivers who signed arbitration agreements, based on non-
severable unlawful “PAGA” waiver.
– What is a “PAGA” waiver / Iskanian v. CLS Transportation Los Angeles (Calif. Supreme Ct.)
– Court rejected Uber’s suggested modifications to arbitration agreement, saying that the “PAGA”
waiver was inextricably linked to the rest of the agreement and could not be disregarded.
– Appeal to 9th Circuit.
September 30, 2016
37
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – O’Connor v. Uber
• Tentative Settlement – up to $100 million ($84 million + $16 million if Uber goes public)
• Included both CA and MA drivers
• Up to $8,000 per driver, depending on miles driven
• Drivers to remain as independent contractors
• Uber to notify riders that tips are not included in fares
• Driver objections
• August 2016 – Court rejects settlement
September 30, 2016
38
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – O’Connor v. Uber
• September 2016 Mohamed case (Ninth Circuit) – reversal of court’s prior ruling in companion case
that arbitration agreements not enforceable
• If applied to Uber case, could reduce size of class from 240,000 to 8,000
• Possible revision of settlement / resolution of primary issues unlikely
September 30, 2016
39
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – Mohamed v. Uber
• Background and consumer credit checks
• Complaints of misconduct by some drivers led Uber to step up its screening in 2014 (in 2014, sued by
District Attorneys in California regarding lack of background checks)
• Includes county, federal and multi-state criminal checks.
• Plaintiff claims he did not receive notice and a copy of the report until after his application was
rejected (and thus, no opportunity to contest the report), in violation of FCRA
• Content of report – improperly included extraneous information
• Arbitration ruling – Ninth Circuit rules in favor of arbitration
September 30, 2016
40
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – Berwick v. Uber
• Claim by driver before California DLSE or “Labor Commissioner”
• In June 2015, DLSE found driver was an employee based on control factors such as background
checks, measuring of drivers against passenger feedback, setting fares, and requirement to accept
percentage of ride requests
• DLSE also found that drivers’ services are central to Uber’s business, which is transportation
• Contrasts with earlier 2012 decision.
September 30, 2016
41
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – Cobarruviaz v. Maplebear, Inc.
• Maplebear is a “dba” of Instacart
• Also an employee misclassification claim, included claims under FLSA and other state laws such as
New York and Colorado
• In a November 2015 ruling, Judge Chen (same judge as in O’Connor) enforced Instacart’s arbitration
agreement, including allowing the “PAGA” waiver to be severed
• “PAGA” claims to proceed in court after individual arbitration
• Instacart now offering limited part-time employee option to workers (acknowledging need for training
in more complex task of selecting grocery items)
September 30, 2016
42
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – Selden v. Airbnb
• Class-action race discrimination claim federal court in District of Columbia, filed in May 2016
• Plaintiff, an African-American, alleges he was rejected for accommodations when using his own
profile, but accepted when using fake white profiles
• Allegation that Airbnb’s design of having a profile with photographs and other demographic info is a
design flaw that leads to discrimination
• Many gig economy companies link to social media information
September 30, 2016
43
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – Personal Injury
• In 2015, Uber settled lawsuit by family of 6-year old girl struck and killed by an Uber driver in San
Francisco
• In May 2016, a federal judge in San Francisco permitted lawsuit against Uber to proceed, by women
alleging they were sexually assaulted by drivers
• Lawsuits may assert “vicarious liability”, based on the allegation that the drivers are Uber employees
• Issues can arise where gig workers in “waiting” mode and not actively on a run/with a rider
• Insurance – many driver policies do not cover “commercial” activity
• Emergence of state and local requirements for gig companies to carry insurance
September 30, 2016
44
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – US Dept. of Labor June 2015 Memorandum
• Misclassification complaints to DOL by workers is on the rise
• DOL has entered into a “memorandum of understanding” with IRS regarding joint enforcement
• FLSA defines “employ” broadly as including to “suffer or permit to work”
• “Economic Realities” test (focused on economic dependence) should be broadly interpreted
consistent with the “suffer or permit” standard
September 30, 2016
45
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – Dynamex v. Superior Court
• Delivery drivers were re-classified from employees to independent contractors
• Allegedly, all job requirements remained the same
• In ruling on class certification, Court relied on the “suffer or permit” definition of employee contained in
California’s IWC Wage Orders
• Dynamex argues that the common-law control test, which was used in Uber and other
misclassification cases, is the proper test
• California Supreme Court to hear issue, could broadly expand definition of “employee”
September 30, 2016
46
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Litigation Trends – Chamber of Commerce v. City of Seattle
• Federal lawsuit brought by U.S. Chamber, challenging Seattle ordinance that would allow gig workers
to collectively bargain over working conditions
• Chamber argued that the ordinance is preempted by the National Labor Relations Act
• Court dismissed lawsuit, ruling that the Chamber had no “standing” and no one had been injured
because no actual organizing had yet taken place
• Similar bill pending in CA legislature (AB 1727), would include allowing drivers to negotiate rider fees
and other items
September 30, 2016
47
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
New Legislation – Ideas
• Create “third category” of workers (workers who use platforms as intermediaries to connect with
consumers) to whom only certain labor laws would apply (such as anti-discrimination, payroll tax) and
who could be pooled for benefits
• Amend existing statutes to refine definition of “employee” with more clearly defined criteria
• Specifically exempt platform-based workers from employment laws, either permanently or temporarily
while other options are explored
September 30, 2016
48
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
Introduction
Jeffrey has been practicing labor and employment law since 1982. He joined Ballard Rosenberg in 1988 and he heads up
the firm’s wage-hour practice. Jeffrey also represents employers in a wide range of labor and employment matters, and
related litigation, including individual and class action wage and hour lawsuits, wrongful termination, discrimination, and
sexual harassment cases. In addition to his litigation practice, Jeff counsels companies on day-to-day employment law
issues, including wage and hour, family and medical leave, drug testing, investigations, employee discipline, and
terminations. He has also lectured and authored articles on various labor and employment law topics, including mandatory
arbitration, wage and hour compliance, punitive damages, social networking, and discrimination. As a litigator, he regularly
appears in state and federal courts throughout California, and has argued cases before the California Court of Appeal and
the U.S. Court of Appeals for the Ninth Circuit. He was also co-counsel for the employer in a landmark case before the
California Supreme Court on constructive discharge, Turner v. Anheuser-Busch, Inc. Jeffrey has particular expertise
defending employers in wage and hour class actions. He has represented some of the nation’s leading companies in such
matters. Jeff co-authored the chapter on wage-hour law in the widely read treatise Advising California Employers (CEB) and
chapters on the Payment of Wages and Overtime, in the treatise California Wage and Hour Law: Compliance and
Litigation (CEB).
September 30, 2016
49
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
NON-COMPLIANCE RISKS
• Class, collective and representative lawsuits
 Compensable work hours
 Minimum wage
 Overtime
 Piece rate
 Meal and rest breaks
 Tips and service charges
 Expense reimbursement
 Record keeping
September 30, 2016
50
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
CLASS ACTIONS
• Class action lawsuits
 Uber: $100M settlement rejected by Judge as insufficient
 Lyft: $27M settlement preliminary approved
• Collective “opt in” actions under FLSA
• Representative “PAGA” lawsuits
 Class certification not required
 Class action waivers not permitted
 Up to $200 per employee per pay period + attorney’s fees
September 30, 2016
51
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
COMPENSABLE WORK HOURS
• All hours under employer’s control
• “Suffered or permitted”
• On-call
 waiting to work or waiting is work
 “controlled” vs. “uncontrolled “ standby
• Travel time vs. commuting
• Sending or receiving phone calls, emails, and texts
• Completing paperwork or synching computer
• Time clock “rounding”
• “De minimis” doctrine
September 30, 2016
52
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
MINIMUM WAGE
• Must pay the higher of federal, state or local ordinance for all compensable work hours if employees
• Federal: currently $7.25 but push to increase up to $15
• State: states like CA (currently $10) have approved minimum wage increases to $15 by 2022
• Local: some cities and counties (e.g., LA, SF, SD) have enacted “living wage” ordinances with a
faster timetable to $15; industry-specific ordinances covering large hotels or government contractors
already require $15+/hour
• Significant penalties for non-compliance (double damages)
September 30, 2016
53
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
OVERTIME
• Exempt vs. non-exempt
• Salary + Duties
• Salary is a fixed amount regardless of quantity or quality of work
 New federal salary requirement of $47,476 effective 12/1/16
 State law requirements: CA salary must be at least twice minimum wage; CA salary exceeds
federal salary when minimum wage is $12 effective 1/1/19
• Duties test: “white collar” (executive, administrative, professional)
 “primary” duties are exempt
 must be over 50 % in CA
• Other exemptions: commission sales, outside sales, computer professionals
• “Regular rate” issues
 bonus, commission, service charges included when calculating overtime
• Penalties for non-compliance
September 30, 2016
54
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
PIECE RATE
• Compensation based on completion of task
• Under FLSA permissible if earnings for work week average out to at least minimum wage
• CA requires minimum wage for every hour worked; averaging not permissible
 Must be separately paid minimum wage for “non productive time”
 Rest breaks must be based on average earnings if higher than minimum wage
September 30, 2016
55
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
MEAL AND REST BREAKS
• Must allow employees to take an unpaid 30-minute, duty-free, uninterrupted meal break before the
end of the 5th hour if shift is more than five hours but employee can waive if shift is not more than six
hours
• Second unpaid meal break must be allowed before the end of the 10th hour if shift is more than 10
hours but employee can waive if shift is not more than 12 hours
• 10-minute paid rest breaks required for every four hours worked or “major fraction” if shift is over 3 ½
hours
• One hour of pay per day penalty for each meal or rest break violation, or two hours per day if both
meal and rest break violations
September 30, 2016
56
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
GRATUITIES AND SERVICE CHARGES
• A tip is a voluntary payment left by customer and belongs 100 % to the employee(s)
• A service charge is a mandatory charge added to customer’s bill
 Service charges belong to the “house” and can be retained or shared with employees in
employer’s discretion
• Tips do not affect employee’s regular rate for calculating overtime but service charges are wages and
must be included in the regular rate
• “Tip credit” of up to $5.12/hour can be applied to satisfy minimum wage under FLSA but not in CA
• Tip pooling arrangements
September 30, 2016
57
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
EXPENSE REIMBURSEMENT
• Under FLSA, only an issue if employee is paid less than minimum wage after expenses
• CA requires reimbursement for all business expenses for exempt and non-exempt employees
• Business use of personal auto must be reimbursed at IRS mileage rate (now $.54/mile)
 DLSE found Uber liable for mileage reimbursement
• Must reimburse for reasonable business use of personal cell phones, data plan, and internet
• Tools, equipment and uniforms
September 30, 2016
58
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
RECORD KEEPING
• Must keep accurate records of work hours
 Including beginning and end of work day and meal breaks
• Pay stubs
 statute requires nine categories of information including inclusive dates of pay period, all rates in
effect and hours worked at each rate, deductions, accrued sick pay, legal name and address of
employer, last four digits of SSN or employee ID
• Prudent to keep time and pay records for at least four years
• Must make available to employees if requested
• Failure to keep accurate time records puts burden on employer to disprove claim
• Penalties for non-compliance
September 30, 2016
59
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
Introduction
Elizabeth Arnold has more than 15 years of experience advising clients on issues related to wage and hour compliance. She
consults with leading law firms and companies nationwide on state and federal class action wage and hour litigation cases
across industries ranging from retail and beverage delivery to meat processing and gaming.
Ms. Arnold consults with clients to develop and implement research methodologies that address complex legal compliance
issues, including misclassification (i.e., exempt vs. non‐ exempt employees, independent contractor), donning and doffing,
off‐the‐clock work, missed meal and rest breaks, and tip pooling. She utilizes research methodologies that include the use of
statistical sampling and large‐scale data collection using interview, questionnaire, and observation techniques.
Ms. Arnold has advised clients on more than 150 cases in the wage and hour area of employment law. Her engagements
often include national projects to determine the tasks and responsibilities of employees and to assess whether the work they
perform is sufficiently similar to determine their appropriate status on a group basis under the executive, administrative,
professional, and/or outside sales exemptions. Clients have used results from her studies at multiple stages of litigation,
including mediation, class certification, and merit evaluation.
September 30, 2016
60
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
Collecting Systematic Data to Evaluate Liability Issues and Potential Claims
• As previously discussed, there are multiple components to determining
whether IC classification is appropriate.
• I will describe some methods we use to collect data relevant to
determining the appropriate classification of workers.
• Substantive data collection is often useful
• Findings can be used in both pre-litigation (preventative) and litigation
context
September 30, 2016
61
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
Multisource Data Collection
September 30, 2016
62
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
1. Workers
• To identify work being performed
• To determine the nature, frequency, and context
in which workers are interfacing with the company
2. Company points of contact
• To determine the nature, frequency and
context in which interaction with worker occurs
3. Company management
• To determine the nature, frequency and context in which interaction are
intended to occur
• To learn about the operations of the business and how workers fit in and
contribute
The Company
Point of
Contact
Employees
of Company
Workers
(Independent
Contractors)
Primary Methods of Data Collection
September 30, 2016
63
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
1. Observational studies
• Shadow workers and document tasks performed
2. Surveys and Questionnaires
• Paper and pencil, online
3. Structured Interviews
• In-person, online
• In some situations, methods can be used together for most
comprehensive data. Data collected from multiple sources using
different methods can result in highly defensible and compelling
evidence
Case Study: Truck Drivers*
September 30, 2016
64
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• BRG conducted comprehensive study of Truck Drivers to evaluate IC
status
• Methodology used can be applied to a wide range of jobs in the gig
economy
• Data collection included:
1. Observations of Truck Drivers
2. Interviews with Truck Drivers
3. Interviews with employees
• Points of contact employees who interface with Truck Drivers
• Management to provide organizational and operational overview
*The following case study is for illustration purposes only. Responses have been modified and are not intended to reflect
any specific company or employees.
Truck Driver Observations
September 30, 2016
65
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
Task
Start
Task
End
Allocated
Time
Task Station Code
6:31:30 6:39:20 0:07:50 Check fuel in truck. 1
6:39:20 6:42:10 0:02:50 Talk to drivers regarding fuel card. 1
6:42:10 6:43:50 0:01:40 Retrieve scanner from office. 1
6:43:50 6:47:20 0:03:30 Read [disputed delivery form]. 1
6:47:20 6:49:20 0:02:00 Wait for Package Coordinator. 1
6:49:20 6:51:10 0:01:50 Talk to Package Coordinator regarding package
delivered that customer said was not delivered.
1 1
6:51:10 6:53:40 0:02:30 Walk to truck to get water bottle. 1
6:53:40 6:55:50 0:02:10 Walk to Restroom [to fill up water bottle]. 1 3
6:55:50 6:59:20 0:03:30 Talk to Package Coordinator to tell her the missing
package had been delivered.
1 1
6:59:20 7:00:20 0:01:00 Log into scanner. 1
7:00:20 7:01:50 0:01:30 Scan ID badge and enter information in scanner to
end route and close the day.
0
• Conducted full-shift observations.
• Sample page from one Truck Driver observation record. Includes detailed list
of tasks performed, including interaction with others.
Truck Driver Observation Results
September 30, 2016
66
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• Showed low frequency and minimal time spent interacting with point of
contact employees.
• Example results from 4 Truck Driver observations:
Observation
Number
Total
Observation
Time
Frequency of
Interactions with
Company ABC
Total Time
Spent
Interacting with
Company ABC
Percent of work
day interacting
with Company
ABC
1 9:41:00 6 0:07:00 1.3%
2 11:33:00 2 0:03:00 0.5%
3 8:21:00 1 0:04:00 0.9%
4 8:20:00 3 0:10:00 2.1%
Average 9:28:45 3 0:06:00 1.2%
Analysis of Truck Driver Time Spent Interacting with Company ABC
Truck Driver Interviews
September 30, 2016
67
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• The categories of questions we asked Truck Drivers included:
– Truck Driver background
(e.g., special skills,
qualifications other
concurrent jobs/work)
– Scheduling process
– Compensation
– Work performed
– Work load
– Physical appearance
rules/guidelines
– Truck Driver
hiring/onboarding
– Training
– Company ABC and Truck
Driver interactions
– Truck Driver performance
Truck Driver Interviews: Sample Questions and Responses
September 30, 2016
68
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• Q. Who determines the order and timing of your pick-ups and
deliveries?
• A. “Company ABC. We have to do it in a window of time”
• A. “I do…”
• A. “I determine order and timing…”
• Q. What types of communications does Company ABC send to you?
• A. “Handouts about safety. And usually a phone call or text if a truck is late
in the morning to drop off crates at the warehouse.”
• A. “Sometimes things will come across the scanner. I don’t even know what
they are, but sometimes its on the customers.”
• A. “Safety meetings”
Truck Driver Interviews: Sample Questions and Responses
September 30, 2016
69
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• Q. For what purposes do you interact with Company ABC employees?
• A. “If a customer has a question. If I have a question about a delivery or
pick-up.”
• A. “Just to say hi, address corrections, damaged boxes, customer
concerns…”
• A. “I interact with the assistant to make sure he’s loading things where I
want them…”
• Q. What information are you expected to report to Company ABC?
• A. “Accidents and injuries. Like being injured on the job”
• A. “Accidents, negative customer interactions, but I don’t know if that’s
expected, I just do it…”
• A. “Accident. Anything out of the ordinary.”
Truck Drivers: Employee Interviews- Sample Questions & Responses
September 30, 2016
70
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• The topics of questions we asked employee points of contact paralleled
the questions we asked drivers.
• Q. Are there any guidelines Company ABC has for the hours that Truck
Drivers must work?
• A. “No, I don’t think so.”
• A. “None. Customer may have some guidelines for pickups but they can
arrive and leave when they want.”
• A. “Other than the limitations that are set forth by the DOT, its not anything
that I’m involved in.”
Truck Drivers: Employee Interviews- Sample Questions & Responses
September 30, 2016
71
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• Q. For what reasons do you contact a Truck Driver?
• A. “If we have a customer who calls and wants pick-up…”
• A. “Try not to do that, but might call if a customer has a request…”
• A. “It would be whenever we get a customer service email with regards to a
delivery…”
• Q. For what reasons would a Truck Driver contact other Company ABC
employees?
• A. “Truck Driver might call Company ABC if they have a bad address…”
• A. “Address corrections, directions, any info they need for customer…”
• A. “If their scanner crashes or they are having trouble with it”
Truck Drivers: Employee Interviews- Sample Questions & Responses
September 30, 2016
72
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• The topics of questions we asked company management employees
included parallel questions to the Truck Drivers and point of contact
employees.
• In addition, we asked questions regarding:
– Operations of the business
– Role Truck Drivers play
– Intended nature of interaction between Truck Drivers and company
• Q. Does Company ABC track Truck Drivers’ work progress?
• A. “We can see in the system if a truck driver is scanning a lot of closures or
a lot of address corrections…”
• A. “We track service, meaning how many crates are delivered…”
• A. “Not at all”
Truck Drivers: Employee Interviews- Sample Questions & Responses
September 30, 2016
73
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• Q. When they are in the warehouse, what are some reasons other
Company ABC employees interact with Truck Drivers?
• A. “My employees interact with them…to make sure that crates get onto
trucks…”
• A. “Truck drivers go to the check-out window and receive scanner and
battery and papers…”
• A. “If their truck position got moved, or if there is a new assistant, or to let
them know about day to day things…”
• Q. What training does Company ABC provide to drivers?
• A. “None, we provide a safety information guide but that’s it..…”
• A. “None that I can think of.”
• A. “We will train them on how to use their scanners..”
Truck Drivers: Employee Interviews- Sample Questions & Responses
September 30, 2016
74
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• Q. Are there any guidelines Company ABC has for hours that Truck
Drivers must work?
• A. “No, we don’t dictate hours…”
• A. “The only regulation for drivers are the DOT regulations…”
• A. “No, there are hours of service guidelines mandated by the DOT…”
• Q. Q. What truck driver records does Company ABC maintain?
• A. “We maintain general qualifications file…”
• A. “DOT file, the truck drivers name is on other documents, like their daily
settlement…”
• A. “We are required to keep inspection reports for DOT”
Case Study of Truck Drivers Results Summary
September 30, 2016
75
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
• Study provided client with comprehensive understanding of:
• The work drivers are performing, how, when and the nature of any
interaction drivers have with Company ABC.
• The role Truck Drivers play in Company ABC’s operations.
• Relevant secondary factors (e.g., equipment workers purchase and use)
• Company was able to make informed decisions regarding how to
proceed and minimize risk
Managing Wage and Hour Compliance
September 30, 2016
76
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
These methods are also applicable to other wage and hour issues, such
as:
•Exempt/non-exempt misclassification
•Off-the-clock (compensable work)
•Meal and rest breaks
•Donning and doffing
•Tip pooling/ “Tippable” work
September 30, 2016
77
Contact Info:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper &
Savitt, LLP
E: rrosenberg@brgslaw.com
T: 818-508-3702
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper &
Savitt, LLP
E: jfuchsman@brgslaw.com
T: 818-508-3730
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
E: cahearn@laborlawyers.com
T: (949) 798-2120
Elizabeth Arnold
Director
Berkeley Research Group
E: earnold@thinkbrg.com
T: 510.874.5964
► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type
your question in the box that appears and click send.
► Questions will be answered in the order they are received.
Q&A:
September 30, 2016
78
SEGMENT 1:
Richard S. Rosenberg
Partner
Ballard Rosenberg Golper & Savitt, LLP
SEGMENT 2:
Christopher M. Ahearn
Of Counsel
Fisher & Phillips
SEGMENT 4:
Elizabeth Arnold
Director
Berkeley Research Group
SEGMENT 3:
Jeffrey P. Fuchsman
Partner
Ballard Rosenberg Golper & Savitt, LLP
September 30, 2016
79
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The Gig Economy is Here to Stay: Minimizing Wage and Hour Liability and Litigation Risks for Your Firm

  • 1. Speaker Firms and Organization: Fisher & Phillips Christopher M. Ahearn Of Counsel Thank you for logging into today’s event. Please note we are in standby mode. All Microphones will be muted until the event starts. We will be back with speaker instructions @ 2:55pm. Any Questions? Please email: info@theknowledegroup.org Group Registration Policy Please note ALL participants must be registered or they will not be able to access the event. If you have more than one person from your company attending, you must fill out the group registration form. We reserve the right to disconnect any unauthorized users from this event and to deny violators admission to future events. To obtain a group registration please send a note to info@theknowledgegroup.org or call 646.202.9344. Presented By: September 30, 2016 1 Partner Firms: Ballard Rosenberg Golper & Savitt, LLP Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP Richard S. Rosenberg Partner Berkeley Research Group Elizabeth Arnold Director
  • 2. September 30, 2016 2  Please note the FAQ.HELP TAB located to the right of the main presentation. On this page you will find answers to the top questions asked by attendees during webcast such as how to fix audio issues, where to download the slides and what to do if you miss a secret word. To access this tab, click the FAQ.HELP Tab to the right of the main presentation when you’re done click the tab of the main presentation to get back.  For those viewing the webcast on a mobile device, please note: o These instructions are for Apple and Android devices only. If you are using a Windows tablet, please follow the instructions for viewing the webcast on a PC. o The FAQ.HELP TAB will not be visible on mobile devices. o You will receive the frequently asked questions & other pertinent info through the apps chat window function on your device. o On Apple devices you must tap the screen anywhere to see the task bar which will show up as a blue bar across the top of the screen. Click the chat icon then click the chat with all to access the FAQ’s. o Feel free to submit questions by using the “questions” function built-in to the app on your device. o You may use your device’s “pinch to zoom function” to enlarge the slide images on your screen. o Headphones are highly recommended. In the event of audio difficulties, a dial-in number is available and will be provided via the app’s chat function on your device.
  • 3. September 30, 2016 3  Follow us on Twitter, that’s @Know_Group to receive updates for this event as well as other news and pertinent info.  If you experience any technical difficulties during today’s WebEx session, please contact our Technical Support @ 866-779-3239. We will post the dial information in the chat window to the right shortly and it’s available in the FAQ.Help Tab on the right. Please redial into the webcast in case of connectivity issue where we have to restart the Webex event.  You may ask a question at anytime throughout the presentation today via the chat window on the lower right hand side of your screen. Questions will be aggregated and addressed during the Q&A segment.  Please note, this call is being recorded for playback purposes.  If anyone was unable to log in to the online webcast and needs to download a copy of the PowerPoint presentation for today’s event, please send an email to: info@theknowledgegroup.org. If you’re already logged in to the online Webcast, we will post a link to download the files shortly and it’s available in the FAQ.Help Tab
  • 4. September 30, 2016 4  If you are listening on a laptop, you may need to use headphones as some laptops speakers are not sufficiently amplified enough to hear the presentations. If you do not have headphones and cannot hear the webcast send an email to info@theknowledgegroup.org and we will send you the dial in phone number.  About an hour or so after the event, you'll be sent a survey via email asking you for your feedback on your experience with this event today - it's designed to take less than two minutes to complete, and it helps us to understand how to wisely invest your time in future events. Your feedback is greatly appreciated. If you are applying for continuing education credit, completions of the surveys are mandatory as per your state boards and bars. 6 secret words (3 for each credit hour) will be given throughout the presentation. We will ask you to fill these words into the survey as proof of your attendance. Please stay tuned for the secret word. If you miss a secret word please refer to the FAQ.Help tab to the right.  Speakers, I will be giving out the secret words at randomly selected times. I may have to break into your presentation briefly to read the secret word. Pardon the interruption.
  • 5. September 30, 2016 5 MobileCLE.org is simple to use: On any device, log into your mobileCLE.org account and choose a LIVE continuing legal education webcast or recorded/on-demand course using one of our many powerful search engines (by legal practice area or keywords such as Patent, FACTA, Data Privacy, eDiscovery etc.). Register for your CLE webcast by clicking the reserve button. On the day and time of your LIVE webcast, simply click Launch! and with 2 taps on your screen you’re earning CLE! Practice Areas: Administrative Law, Alternative Dispute Resolution, Antitrust, Appellate Litigation, Bankruptcy, Communications Law, Corporate Law, Employment/Labor Law, Environmental Law, Government Contracts Law, Health Law, Immigration Law, Intellectual Property Law, International Development Law, International Trade Law, Mergers and Acquisitions, National Security Law, Privacy Law, Real Estate Law, Securities Law, Sports/Entertainment Law, Tax Law, Trusts and Estates Law, and White Collar Crime To sign up: www.mobilecle.org Basic Annual Subscription – LIVE CLE Webcasts $199 (After Instant Discount) Pro Annual Subscription – LIVE CLE & Recorded Webcasts $299 (After Instant Discount) You get all these features:  Unlimited Access to LIVE CLE Webcasts & Materials PLUS  Free CLE Credit Processing  Unlimited Access to Course Materials for LIVE Webcasts  One-Click Registration  Free Webcast Calendar Organizer with Outlook Integration $16.58 per month (Billed Annually – $199) You get all these PRO features:  Unlimited Access to LIVE CLE Webcasts & Materials PLUS  Free CLE Credit Processing  Unlimited Access to Course Materials for LIVE Webcasts  One-Click Registration  Free Webcast Calendar Organizer with Outlook Integration  Unlimited Access to Recorded Webcasts & Materials $299 per year
  • 6. Partner Firms: September 30, 2016 6 For the past 30 years, Ballard Rosenberg Golper & Savitt, LLP has been providing employers throughout the U.S. with labor and employment law advice and representation. The firm engages exclusively in the practice of labor and employment law on behalf of employers and management. We advise our clients on formulating and implementing labor and employee relations policies to achieve desired goals without resort to adversary proceedings. Our objective is to help clients avoid problems, rather than merely react to crises. When the only option is litigation, we have a winning track record before federal and state courts (over 100 jury victories), and the administrative agencies which enforce federal, state and local employment laws. And, we have had the privilege of making very favorable law for our employer clients and the employer community . Our primary office is in Los Angeles, CA, and we have satellite offices in New York, NY, and Charlotte, NC. We are national and local, with attorneys admitted in just about every U.S. jurisdiction. We represent a wide range of public and private employers. Our clients include employers in the agriculture, automotive manufacturing, automobile dealership, banking, broadcasting, casino and gaming, construction, health care, hospitality, insurance, legal and professional services, manufacturing, mining, real estate, retail, technology, transportation, and wholesale and distribution industries, as well as state and local government entities, non-profit organizations, schools, colleges and universities. Berkeley Research Group is a leading global strategic advisory and expert consulting firm that provides independent advice, data analytics, authoritative studies, expert testimony, investigations, and regulatory and dispute consulting to Fortune 500 corporations, financial institutions, government agencies, major law firms, and regulatory bodies around the world. BRG experts and consultants combine intellectual rigor with practical, real-world experience and an in- depth understanding of industries and markets. Their expertise spans economics and finance, data analytics and statistics, and public policy in many of the major sectors of our economy, including healthcare, banking, information technology, energy, construction, and real estate. BRG is headquartered in Emeryville, California, with offices across the United States and in Asia, Australia, Canada, Latin America, the Middle East, and the United Kingdom.
  • 7. Brief Speaker Bios: Richard S. Rosenberg Richard began his career as a workplace lawyer in 1977 after obtaining degrees from Cornell University’s School of Industrial & Labor Relations and the Santa Clara University law school. Richard has spent his entire career assisting management defend and risk manage workplace related legal matters and proposed personnel transactions. His experience in the trenches enables Richard to provide management with a clear-eyed assessment and strategic options. Richard’s style is one which motivates his clients and adversaries to work cooperatively to find creative solutions to the toughest workplace challenges. His reputation as a formidable opponent and labor law strategist who is both fair and trustworthy has resulted in peers naming him to the list of Southern California Super Lawyers every year since the inception of that honor and a listing in Best Lawyers in America since 2009. September 30, 2016 7 Christopher M. Ahearn Chris is Of Counsel in the firm's Irvine office. He has represented employers in litigation matters for nearly all of his legal career. He has represented employers in matters before state and federal courts in California, in arbitration, and before the Division of Labor Standards enforcement, the Equal Opportunity Employment Commission, the California Department of Fair Employment and Housing, and the Employment Development Department. Chris has significant experience in complex multi-party and class action claims, and his cases have included high-profile matters with substantial media coverage. Chris has also represented employers in numerous claims brought under the California Labor Code Private Attorneys General Act of 2004 (PAGA).
  • 8. Brief Speaker Bios: Jeffrey P. Fuchsman Jeffrey has been practicing labor and employment law since 1982. He joined Ballard Rosenberg in 1988 and he heads up the firm’s wage-hour practice. Jeffrey also represents employers in a wide range of labor and employment matters, and related litigation, including individual and class action wage and hour lawsuits, wrongful termination, discrimination, and sexual harassment cases. In addition to his litigation practice, Jeff counsels companies on day-to-day employment law issues, including wage and hour, family and medical leave, drug testing, investigations, employee discipline, and terminations. He has also lectured and authored articles on various labor and employment law topics, including mandatory arbitration, wage and hour compliance, punitive damages, social networking, and discrimination. As a litigator, he regularly appears in state and federal courts throughout California, and has argued cases before the California Court of Appeal and the U.S. Court of Appeals for the Ninth Circuit. September 30, 2016 8 Elizabeth Arnold Elizabeth Arnold has 15 years of experience advising clients on issues related to wage and hour compliance. She consults with leading law firms and companies nationwide on state and federal class action wage and hour litigation cases across industries ranging from retail and beverage delivery to meat processing and gaming. Ms. Arnold consults with clients to develop and implement research methodologies that address complex legal compliance issues, including misclassification (i.e., exempt vs. non‐ exempt employees, independent contractor), donning and doffing, off‐the‐clock work, missed meal and rest breaks, and tip pooling. She utilizes research methodologies that include the use of statistical sampling and large‐scale data collection using interview, questionnaire, and observation techniques. ► For more information about the speakers, you can visit: https://theknowledgegroup.org/event-homepage/?event_id=1667
  • 9. The concept of the on-demand workforce or gig economy is not a novel concept, but the ubiquity of smartphones and mobile applications has driven this rapidly evolving trend. Estimates vary, but one survey says that more than 50 millions of American workers entered the gig economy workforce in 2015 and it is more likely to boost in the next few years to come. On this type of workforce, workers operate as independent contractors wherein they enjoy the freedom of working on their own schedule but are not provided with the same benefits similar to that of a traditional employee. In return, companies that use this platform draw savings by reducing employee-related expenses such as payroll taxes and employment benefits. However, along with the upsurge of gig economy comes the rise of lawsuits filed against companies by workers alleging violations of federal and state labor laws. The question whether gig workers fall in the classification of employees or independent contractors often arise, but courts litigating related cases have varying opinions that make the gig economy even more confusing. Companies should take this and other issues on gig economy into heedful account to avoid unnecessary future lawsuits. … September 30, 2016 9
  • 10. In a two-hour LIVE Webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group will discuss the significant and latest issues on gig economy specifically on wage and hour liability and litigation risks. Speakers will identify potential liability issues and provide strategies to avoid and minimize liability and potential claims. Key issues that will be covered in this course are: • The Pros and Cons of Gig Economy • Identifying "Employees" and "Independent Contractors" • DOL Actions on Gig Economy-related Issues • Recent Litigations Against On-Demand Companies • Best Practices to Avoid Liability Issues and Potential Claims September 30, 2016 10
  • 11. Featured Speakers: September 30, 2016 11 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 12. Introduction Richard began his career as a workplace lawyer in 1977 after obtaining degrees from Cornell University’s School of Industrial & Labor Relations and the Santa Clara University law school. Richard has spent his entire career assisting management defend and risk manage workplace related legal matters and proposed personnel transactions. His experience in the trenches enables Richard to provide management with a clear-eyed assessment and strategic options. Richard’s style is one which motivates his clients and adversaries to work cooperatively to find creative solutions to the toughest workplace challenges. His reputation as a formidable opponent and labor law strategist who is both fair and trustworthy has resulted in peers naming him to the list of Southern California Super Lawyers every year since the inception of that honor and a listing in Best Lawyers in America since 2009. Recognized as one of the state’s leading experts of workplace law, with a special emphasis on wage-hour law, Richard has lectured extensively for bar associations, trade organizations and management groups throughout the United States to thousands of lawyers, human resources professionals, business executives and management personnel. Richard has also published over 75 articles and legal commentaries in numerous trade publications and legal journals and is the creator and principal author of the firm’s widely read e-bulletin Compliance Matters. Richard is a recognized expert in wage hour law, having co-authored the chapter on wage-hour law in the widely read treatise Advising California Employers (CEB) and the chapters on the Payment of Wages and Overtime, in the treatise California Wage and Hour Law: Compliance and Litigation (CEB) September 30, 2016 12 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 13. The “Gig” Economy • What is It? • Where is it? • How prevalent is it? • Is the trend likely to continue? • How traditional labor law rules and regulations apply to the gig economy September 30, 2016 13 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 14. “Gigsters” • People who make a living working without any formal employment agreement • Often work a series of temporary engagements, but that’s not always the case • Typically treated as so-called “independent contractors”, though few of them have any of the attributes of a business owner • Don’t enjoy any of the many benefits and protections which lawmakers (and Courts) have provided to traditional “employees” September 30, 2016 14 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 15. Human Capital Trends • Deloitte Consulting reports that: – More than 1 in 3 US workers are “freelancers”—a figure expected to grow to 40 percent by 2020. – 51% of executives in its global survey say they plan to increase the use of contingent workers in the next 3 to 5 years. • Is the genie out of the bottle? September 30, 2016 15 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 16. It’s Not Just Airbnb and Uber • Airbnb and Uber embody this trend, but business leaders report that companies in all sectors are increasingly tapping into freelance workers as a regular part of their workforces. • Key motivators: – Cost reduction – Lack of available of talent – Demand for flexibility by contingent workers – Tech enabled competition September 30, 2016 16 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 17. Tech-enabled Competition • Technology-enabled talent markets, operating through new technology assisted platforms, are offering new sources of competition for their labor. • Some examples: – Uber and Lyft (transportation-for-hire services) – Topcoder (programming) – Handy, Angie’s List, Thumbtack (household repair projects) – Tongal (ads and videos) – Hourlynerd (consulting projects) – Postmates (restaurant food delivery) – Amazon now (everything!) September 30, 2016 17 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 18. Key Labor Law Questions • How does the “gig” model fit into workplace laws and regulations that were specifically written to govern traditional employer-employee relationships? • Should it? • Must the laws adapt to the new business models or should we be content trying to fit the square peg into the round hole? September 30, 2016 18 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 19. Employment Laws • Many of federal, state and local laws protect various aspects of the employment relationship • Dozens of government watchdog agencies enforce these laws • P.I. lawyers love the fact that courts hold “employers” legally responsible for the harm caused to third parties by their “employees” September 30, 2016 19 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 20. What’s The Big Deal? • Governments losing billions in tax revenue • Plaintiff’s lawyers see huge potential recoveries • Gig engagers enjoy a significant competitive edge over organizations that engage workers as employees: – No workers’ compensation insurance costs – No employee benefits costs – No payroll tax costs – No “labor law” legal compliance costs – Lower labor costs overall September 30, 2016 20 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 21. CA Labor Code Gotcha’s • Section 226.8: – fines of 5K-25K if “willfully” misclassify a worker as an IC – Prohibits pay deductions that couldn't charge EE’s – Public shaming: ER must post notice of violations on website in area that public can see (including potential plaintiffs and their lawyers) • September 30, 2016 21 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 22. CA Labor Code Gotcha’s • Section 2753: – Advisors who recommend that workers be classified as IC’s can be liable along with their clients if they are wrong (like CPA’s) – Layers exempted if giving “legal advice” September 30, 2016 22 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 23. How Claims Arise? • Government audits • Workers’ compensation claims • Individual or “class” type lawsuits • Union organizing • Agency charges or investigations • Third party claims for personal injuries • Lawsuits by competitors burdened with following the rules September 30, 2016 23 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 24. Who Is An Independent Contactor? • Unfortunately, it depends who (which agency or court) you ask • Major players: – U.S. Dept. of Labor (has declared war on the IC’s) – IRS – NLRB – Federal Courts – State regulators and Courts September 30, 2016 24 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 25. Key Issues: • Is the gig worker truly an independent business person? • What facts should you assess when making that determination? • The burden of proof lies with the engager • Government agencies and courts inclined to rule that it’s employment • DOL says almost all workers are really “employees”. September 30, 2016 25 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 26. Huge Risk Of Misclassifying Gigsters • Inherently risky to classify any worker as an independent contractor because: – There is no uniformly followed standard to assess the bona-fides of the relationship – Different agencies and courts use their own formulae – As a result, a ruling in your favor by one agency or court is not necessarily binding on another – Contracts aren’t worth the paper they are written on if the relationship doesn’t pass muster September 30, 2016 26 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 27. DOL View: • Is the gigster’s work integral to the business? • Does the gigster’s managerial skill affect her opportunity for a profit or loss? • How does the gigster’s relative investment compare to the that of the engaging entity? • Does the work require special skills and initiative of the gigster? • Is the relationship permanent or indefinite? • What is the nature and degree of the engager’s control over the method, manner and means by which the gigster does the work? September 30, 2016 27 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 28. CA EDD Worksheet • It’s on their website (Form DE 38 Rev. 4 (1-16) • Analysis is very revealing! • Help direct you to an “answer”, but it does reveal their bent (that most workers ARE employees) September 30, 2016 28 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 29. EDD’s Checklist • 1. Do you instruct or supervise the person while s/he is working? • 2. Can the worker quit or be fired at any time? • 3. Is the work being performed part of your regular business? • 4. Does the worker have a separately established business? • 5. Is the worker free to make business decisions which affect his or her ability to make a profit from the work? • 6. Does the individual have a substantial investment in their job which would subject the worker to a substantial financial risk of loss? • 7. Do you have employees who do the same type of work? • 8. Does the business furnish the worker with any tools or supplies used to perform the work? • 9. Is the work considered unskilled or semiskilled labor? • 10. Do you provide training to the worker? • 11. Is the worker paid a fixed salary, an hourly wage or on a piece rate? • 12. Did the worker previously perform the same or similar work for you as an employee? • 13. Does the worker believe s/he is an employee? September 30, 2016 29 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 30. California's View (Borello) • Key factor: the right to control where, when and how the work is to be done. • Secondary factors: – Whether the person is engaged in an occupation distinct from the business of the engager? – Whether the gigster’s services are part of the engager’s regular work? – Does the gigster supply her own tools and instrumentalities? – The gigster’s investment in the equipment/materials needed to do the work – Does the service require a special skill not possessed by the engager? – Is this kind of work typically done without supervision by an independent business owner? September 30, 2016 30 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 31. More Borello Factors – Gigster’s opportunity for real profit and loss – Length of time of the engagement – The degree of permanence of the relationship – The method of payment (by the hour r the job?) – The intent of the parties, as evidenced by a written agreement September 30, 2016 31 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 32. Call Your Labor Lawyer When…. • A gigster files a claim for state UI/SDI benefits • A gigster gets injured while working for you • A gigster injures a third party while working for you • A gigster makes a wage/benefit claim at a state or federal agency • You receive an audit letter from the government • The long term engagement of a gigster September 30, 2016 32 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP
  • 33. Introduction Chris is Of Counsel in the firm's Irvine office. He has represented employers in litigation matters for nearly all of his legal career. He has represented employers in matters before state and federal courts in California, in arbitration, and before the Division of Labor Standards enforcement, the Equal Opportunity Employment Commission, the California Department of Fair Employment and Housing, and the Employment Development Department. Chris has significant experience in complex multi-party and class action claims, and his cases have included high-profile matters with substantial media coverage. Chris has also represented employers in numerous claims brought under the California Labor Code Private Attorneys General Act of 2004 (PAGA). Chris’s practice also focuses on shielding employers from liability by providing advice and counsel in multiple areas of California employment law, including California wage and hour matters, discipline and termination, and employment policies and procedures. September 30, 2016 33 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 34. Litigation Trends - O’Connor v. Uber • Misclassification case. • Northern District of California • “Gratuities” / Cal. Lab. Code § 351 • Expense Reimbursement / Cal. Lab. Code § 351 • Uber loses initial motion to dismiss • Initial dispute regarding scope of class (California vs. Nationwide) September 30, 2016 34 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 35. Litigation Trends – O’Connor v. Uber • Summary Judgment – Uber’s Arguments (not a transportation business, drivers provide no service to Uber, no substantial control over drivers) • Summary Judgment – Plaintiffs’ Arguments (right to control while on platform, drivers provide a benefit and service to Uber, Uber is a transportation company) • Result – Court denies motions, case will ultimately be tried to a jury. September 30, 2016 35 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 36. Litigation Trends – O’Connor v. Uber • Class Certification – September 2015 Order certifying class of all CA drivers, but excluding: – Drivers who signed arbitration agreements implemented in June 2014 containing a Court- ordered “opt out” clause. – Drivers who drove for third-party transportation companies. • Court not persuaded by Uber’s arguments regarding 17 versions of driver agreement, and 400 declarations from drivers satisfied with business model. September 30, 2016 36 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 37. Litigation Trends – O’Connor v. Uber • December 2015 Class Certification Ruling: – Court reverses prior ruling excluding drivers who signed arbitration agreements, based on non- severable unlawful “PAGA” waiver. – What is a “PAGA” waiver / Iskanian v. CLS Transportation Los Angeles (Calif. Supreme Ct.) – Court rejected Uber’s suggested modifications to arbitration agreement, saying that the “PAGA” waiver was inextricably linked to the rest of the agreement and could not be disregarded. – Appeal to 9th Circuit. September 30, 2016 37 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 38. Litigation Trends – O’Connor v. Uber • Tentative Settlement – up to $100 million ($84 million + $16 million if Uber goes public) • Included both CA and MA drivers • Up to $8,000 per driver, depending on miles driven • Drivers to remain as independent contractors • Uber to notify riders that tips are not included in fares • Driver objections • August 2016 – Court rejects settlement September 30, 2016 38 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 39. Litigation Trends – O’Connor v. Uber • September 2016 Mohamed case (Ninth Circuit) – reversal of court’s prior ruling in companion case that arbitration agreements not enforceable • If applied to Uber case, could reduce size of class from 240,000 to 8,000 • Possible revision of settlement / resolution of primary issues unlikely September 30, 2016 39 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 40. Litigation Trends – Mohamed v. Uber • Background and consumer credit checks • Complaints of misconduct by some drivers led Uber to step up its screening in 2014 (in 2014, sued by District Attorneys in California regarding lack of background checks) • Includes county, federal and multi-state criminal checks. • Plaintiff claims he did not receive notice and a copy of the report until after his application was rejected (and thus, no opportunity to contest the report), in violation of FCRA • Content of report – improperly included extraneous information • Arbitration ruling – Ninth Circuit rules in favor of arbitration September 30, 2016 40 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 41. Litigation Trends – Berwick v. Uber • Claim by driver before California DLSE or “Labor Commissioner” • In June 2015, DLSE found driver was an employee based on control factors such as background checks, measuring of drivers against passenger feedback, setting fares, and requirement to accept percentage of ride requests • DLSE also found that drivers’ services are central to Uber’s business, which is transportation • Contrasts with earlier 2012 decision. September 30, 2016 41 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 42. Litigation Trends – Cobarruviaz v. Maplebear, Inc. • Maplebear is a “dba” of Instacart • Also an employee misclassification claim, included claims under FLSA and other state laws such as New York and Colorado • In a November 2015 ruling, Judge Chen (same judge as in O’Connor) enforced Instacart’s arbitration agreement, including allowing the “PAGA” waiver to be severed • “PAGA” claims to proceed in court after individual arbitration • Instacart now offering limited part-time employee option to workers (acknowledging need for training in more complex task of selecting grocery items) September 30, 2016 42 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 43. Litigation Trends – Selden v. Airbnb • Class-action race discrimination claim federal court in District of Columbia, filed in May 2016 • Plaintiff, an African-American, alleges he was rejected for accommodations when using his own profile, but accepted when using fake white profiles • Allegation that Airbnb’s design of having a profile with photographs and other demographic info is a design flaw that leads to discrimination • Many gig economy companies link to social media information September 30, 2016 43 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 44. Litigation Trends – Personal Injury • In 2015, Uber settled lawsuit by family of 6-year old girl struck and killed by an Uber driver in San Francisco • In May 2016, a federal judge in San Francisco permitted lawsuit against Uber to proceed, by women alleging they were sexually assaulted by drivers • Lawsuits may assert “vicarious liability”, based on the allegation that the drivers are Uber employees • Issues can arise where gig workers in “waiting” mode and not actively on a run/with a rider • Insurance – many driver policies do not cover “commercial” activity • Emergence of state and local requirements for gig companies to carry insurance September 30, 2016 44 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 45. Litigation Trends – US Dept. of Labor June 2015 Memorandum • Misclassification complaints to DOL by workers is on the rise • DOL has entered into a “memorandum of understanding” with IRS regarding joint enforcement • FLSA defines “employ” broadly as including to “suffer or permit to work” • “Economic Realities” test (focused on economic dependence) should be broadly interpreted consistent with the “suffer or permit” standard September 30, 2016 45 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 46. Litigation Trends – Dynamex v. Superior Court • Delivery drivers were re-classified from employees to independent contractors • Allegedly, all job requirements remained the same • In ruling on class certification, Court relied on the “suffer or permit” definition of employee contained in California’s IWC Wage Orders • Dynamex argues that the common-law control test, which was used in Uber and other misclassification cases, is the proper test • California Supreme Court to hear issue, could broadly expand definition of “employee” September 30, 2016 46 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 47. Litigation Trends – Chamber of Commerce v. City of Seattle • Federal lawsuit brought by U.S. Chamber, challenging Seattle ordinance that would allow gig workers to collectively bargain over working conditions • Chamber argued that the ordinance is preempted by the National Labor Relations Act • Court dismissed lawsuit, ruling that the Chamber had no “standing” and no one had been injured because no actual organizing had yet taken place • Similar bill pending in CA legislature (AB 1727), would include allowing drivers to negotiate rider fees and other items September 30, 2016 47 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 48. New Legislation – Ideas • Create “third category” of workers (workers who use platforms as intermediaries to connect with consumers) to whom only certain labor laws would apply (such as anti-discrimination, payroll tax) and who could be pooled for benefits • Amend existing statutes to refine definition of “employee” with more clearly defined criteria • Specifically exempt platform-based workers from employment laws, either permanently or temporarily while other options are explored September 30, 2016 48 SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips
  • 49. Introduction Jeffrey has been practicing labor and employment law since 1982. He joined Ballard Rosenberg in 1988 and he heads up the firm’s wage-hour practice. Jeffrey also represents employers in a wide range of labor and employment matters, and related litigation, including individual and class action wage and hour lawsuits, wrongful termination, discrimination, and sexual harassment cases. In addition to his litigation practice, Jeff counsels companies on day-to-day employment law issues, including wage and hour, family and medical leave, drug testing, investigations, employee discipline, and terminations. He has also lectured and authored articles on various labor and employment law topics, including mandatory arbitration, wage and hour compliance, punitive damages, social networking, and discrimination. As a litigator, he regularly appears in state and federal courts throughout California, and has argued cases before the California Court of Appeal and the U.S. Court of Appeals for the Ninth Circuit. He was also co-counsel for the employer in a landmark case before the California Supreme Court on constructive discharge, Turner v. Anheuser-Busch, Inc. Jeffrey has particular expertise defending employers in wage and hour class actions. He has represented some of the nation’s leading companies in such matters. Jeff co-authored the chapter on wage-hour law in the widely read treatise Advising California Employers (CEB) and chapters on the Payment of Wages and Overtime, in the treatise California Wage and Hour Law: Compliance and Litigation (CEB). September 30, 2016 49 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 50. NON-COMPLIANCE RISKS • Class, collective and representative lawsuits  Compensable work hours  Minimum wage  Overtime  Piece rate  Meal and rest breaks  Tips and service charges  Expense reimbursement  Record keeping September 30, 2016 50 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 51. CLASS ACTIONS • Class action lawsuits  Uber: $100M settlement rejected by Judge as insufficient  Lyft: $27M settlement preliminary approved • Collective “opt in” actions under FLSA • Representative “PAGA” lawsuits  Class certification not required  Class action waivers not permitted  Up to $200 per employee per pay period + attorney’s fees September 30, 2016 51 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 52. COMPENSABLE WORK HOURS • All hours under employer’s control • “Suffered or permitted” • On-call  waiting to work or waiting is work  “controlled” vs. “uncontrolled “ standby • Travel time vs. commuting • Sending or receiving phone calls, emails, and texts • Completing paperwork or synching computer • Time clock “rounding” • “De minimis” doctrine September 30, 2016 52 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 53. MINIMUM WAGE • Must pay the higher of federal, state or local ordinance for all compensable work hours if employees • Federal: currently $7.25 but push to increase up to $15 • State: states like CA (currently $10) have approved minimum wage increases to $15 by 2022 • Local: some cities and counties (e.g., LA, SF, SD) have enacted “living wage” ordinances with a faster timetable to $15; industry-specific ordinances covering large hotels or government contractors already require $15+/hour • Significant penalties for non-compliance (double damages) September 30, 2016 53 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 54. OVERTIME • Exempt vs. non-exempt • Salary + Duties • Salary is a fixed amount regardless of quantity or quality of work  New federal salary requirement of $47,476 effective 12/1/16  State law requirements: CA salary must be at least twice minimum wage; CA salary exceeds federal salary when minimum wage is $12 effective 1/1/19 • Duties test: “white collar” (executive, administrative, professional)  “primary” duties are exempt  must be over 50 % in CA • Other exemptions: commission sales, outside sales, computer professionals • “Regular rate” issues  bonus, commission, service charges included when calculating overtime • Penalties for non-compliance September 30, 2016 54 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 55. PIECE RATE • Compensation based on completion of task • Under FLSA permissible if earnings for work week average out to at least minimum wage • CA requires minimum wage for every hour worked; averaging not permissible  Must be separately paid minimum wage for “non productive time”  Rest breaks must be based on average earnings if higher than minimum wage September 30, 2016 55 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 56. MEAL AND REST BREAKS • Must allow employees to take an unpaid 30-minute, duty-free, uninterrupted meal break before the end of the 5th hour if shift is more than five hours but employee can waive if shift is not more than six hours • Second unpaid meal break must be allowed before the end of the 10th hour if shift is more than 10 hours but employee can waive if shift is not more than 12 hours • 10-minute paid rest breaks required for every four hours worked or “major fraction” if shift is over 3 ½ hours • One hour of pay per day penalty for each meal or rest break violation, or two hours per day if both meal and rest break violations September 30, 2016 56 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 57. GRATUITIES AND SERVICE CHARGES • A tip is a voluntary payment left by customer and belongs 100 % to the employee(s) • A service charge is a mandatory charge added to customer’s bill  Service charges belong to the “house” and can be retained or shared with employees in employer’s discretion • Tips do not affect employee’s regular rate for calculating overtime but service charges are wages and must be included in the regular rate • “Tip credit” of up to $5.12/hour can be applied to satisfy minimum wage under FLSA but not in CA • Tip pooling arrangements September 30, 2016 57 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 58. EXPENSE REIMBURSEMENT • Under FLSA, only an issue if employee is paid less than minimum wage after expenses • CA requires reimbursement for all business expenses for exempt and non-exempt employees • Business use of personal auto must be reimbursed at IRS mileage rate (now $.54/mile)  DLSE found Uber liable for mileage reimbursement • Must reimburse for reasonable business use of personal cell phones, data plan, and internet • Tools, equipment and uniforms September 30, 2016 58 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 59. RECORD KEEPING • Must keep accurate records of work hours  Including beginning and end of work day and meal breaks • Pay stubs  statute requires nine categories of information including inclusive dates of pay period, all rates in effect and hours worked at each rate, deductions, accrued sick pay, legal name and address of employer, last four digits of SSN or employee ID • Prudent to keep time and pay records for at least four years • Must make available to employees if requested • Failure to keep accurate time records puts burden on employer to disprove claim • Penalties for non-compliance September 30, 2016 59 SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
  • 60. Introduction Elizabeth Arnold has more than 15 years of experience advising clients on issues related to wage and hour compliance. She consults with leading law firms and companies nationwide on state and federal class action wage and hour litigation cases across industries ranging from retail and beverage delivery to meat processing and gaming. Ms. Arnold consults with clients to develop and implement research methodologies that address complex legal compliance issues, including misclassification (i.e., exempt vs. non‐ exempt employees, independent contractor), donning and doffing, off‐the‐clock work, missed meal and rest breaks, and tip pooling. She utilizes research methodologies that include the use of statistical sampling and large‐scale data collection using interview, questionnaire, and observation techniques. Ms. Arnold has advised clients on more than 150 cases in the wage and hour area of employment law. Her engagements often include national projects to determine the tasks and responsibilities of employees and to assess whether the work they perform is sufficiently similar to determine their appropriate status on a group basis under the executive, administrative, professional, and/or outside sales exemptions. Clients have used results from her studies at multiple stages of litigation, including mediation, class certification, and merit evaluation. September 30, 2016 60 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group
  • 61. Collecting Systematic Data to Evaluate Liability Issues and Potential Claims • As previously discussed, there are multiple components to determining whether IC classification is appropriate. • I will describe some methods we use to collect data relevant to determining the appropriate classification of workers. • Substantive data collection is often useful • Findings can be used in both pre-litigation (preventative) and litigation context September 30, 2016 61 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group
  • 62. Multisource Data Collection September 30, 2016 62 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group 1. Workers • To identify work being performed • To determine the nature, frequency, and context in which workers are interfacing with the company 2. Company points of contact • To determine the nature, frequency and context in which interaction with worker occurs 3. Company management • To determine the nature, frequency and context in which interaction are intended to occur • To learn about the operations of the business and how workers fit in and contribute The Company Point of Contact Employees of Company Workers (Independent Contractors)
  • 63. Primary Methods of Data Collection September 30, 2016 63 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group 1. Observational studies • Shadow workers and document tasks performed 2. Surveys and Questionnaires • Paper and pencil, online 3. Structured Interviews • In-person, online • In some situations, methods can be used together for most comprehensive data. Data collected from multiple sources using different methods can result in highly defensible and compelling evidence
  • 64. Case Study: Truck Drivers* September 30, 2016 64 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • BRG conducted comprehensive study of Truck Drivers to evaluate IC status • Methodology used can be applied to a wide range of jobs in the gig economy • Data collection included: 1. Observations of Truck Drivers 2. Interviews with Truck Drivers 3. Interviews with employees • Points of contact employees who interface with Truck Drivers • Management to provide organizational and operational overview *The following case study is for illustration purposes only. Responses have been modified and are not intended to reflect any specific company or employees.
  • 65. Truck Driver Observations September 30, 2016 65 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group Task Start Task End Allocated Time Task Station Code 6:31:30 6:39:20 0:07:50 Check fuel in truck. 1 6:39:20 6:42:10 0:02:50 Talk to drivers regarding fuel card. 1 6:42:10 6:43:50 0:01:40 Retrieve scanner from office. 1 6:43:50 6:47:20 0:03:30 Read [disputed delivery form]. 1 6:47:20 6:49:20 0:02:00 Wait for Package Coordinator. 1 6:49:20 6:51:10 0:01:50 Talk to Package Coordinator regarding package delivered that customer said was not delivered. 1 1 6:51:10 6:53:40 0:02:30 Walk to truck to get water bottle. 1 6:53:40 6:55:50 0:02:10 Walk to Restroom [to fill up water bottle]. 1 3 6:55:50 6:59:20 0:03:30 Talk to Package Coordinator to tell her the missing package had been delivered. 1 1 6:59:20 7:00:20 0:01:00 Log into scanner. 1 7:00:20 7:01:50 0:01:30 Scan ID badge and enter information in scanner to end route and close the day. 0 • Conducted full-shift observations. • Sample page from one Truck Driver observation record. Includes detailed list of tasks performed, including interaction with others.
  • 66. Truck Driver Observation Results September 30, 2016 66 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • Showed low frequency and minimal time spent interacting with point of contact employees. • Example results from 4 Truck Driver observations: Observation Number Total Observation Time Frequency of Interactions with Company ABC Total Time Spent Interacting with Company ABC Percent of work day interacting with Company ABC 1 9:41:00 6 0:07:00 1.3% 2 11:33:00 2 0:03:00 0.5% 3 8:21:00 1 0:04:00 0.9% 4 8:20:00 3 0:10:00 2.1% Average 9:28:45 3 0:06:00 1.2% Analysis of Truck Driver Time Spent Interacting with Company ABC
  • 67. Truck Driver Interviews September 30, 2016 67 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • The categories of questions we asked Truck Drivers included: – Truck Driver background (e.g., special skills, qualifications other concurrent jobs/work) – Scheduling process – Compensation – Work performed – Work load – Physical appearance rules/guidelines – Truck Driver hiring/onboarding – Training – Company ABC and Truck Driver interactions – Truck Driver performance
  • 68. Truck Driver Interviews: Sample Questions and Responses September 30, 2016 68 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • Q. Who determines the order and timing of your pick-ups and deliveries? • A. “Company ABC. We have to do it in a window of time” • A. “I do…” • A. “I determine order and timing…” • Q. What types of communications does Company ABC send to you? • A. “Handouts about safety. And usually a phone call or text if a truck is late in the morning to drop off crates at the warehouse.” • A. “Sometimes things will come across the scanner. I don’t even know what they are, but sometimes its on the customers.” • A. “Safety meetings”
  • 69. Truck Driver Interviews: Sample Questions and Responses September 30, 2016 69 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • Q. For what purposes do you interact with Company ABC employees? • A. “If a customer has a question. If I have a question about a delivery or pick-up.” • A. “Just to say hi, address corrections, damaged boxes, customer concerns…” • A. “I interact with the assistant to make sure he’s loading things where I want them…” • Q. What information are you expected to report to Company ABC? • A. “Accidents and injuries. Like being injured on the job” • A. “Accidents, negative customer interactions, but I don’t know if that’s expected, I just do it…” • A. “Accident. Anything out of the ordinary.”
  • 70. Truck Drivers: Employee Interviews- Sample Questions & Responses September 30, 2016 70 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • The topics of questions we asked employee points of contact paralleled the questions we asked drivers. • Q. Are there any guidelines Company ABC has for the hours that Truck Drivers must work? • A. “No, I don’t think so.” • A. “None. Customer may have some guidelines for pickups but they can arrive and leave when they want.” • A. “Other than the limitations that are set forth by the DOT, its not anything that I’m involved in.”
  • 71. Truck Drivers: Employee Interviews- Sample Questions & Responses September 30, 2016 71 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • Q. For what reasons do you contact a Truck Driver? • A. “If we have a customer who calls and wants pick-up…” • A. “Try not to do that, but might call if a customer has a request…” • A. “It would be whenever we get a customer service email with regards to a delivery…” • Q. For what reasons would a Truck Driver contact other Company ABC employees? • A. “Truck Driver might call Company ABC if they have a bad address…” • A. “Address corrections, directions, any info they need for customer…” • A. “If their scanner crashes or they are having trouble with it”
  • 72. Truck Drivers: Employee Interviews- Sample Questions & Responses September 30, 2016 72 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • The topics of questions we asked company management employees included parallel questions to the Truck Drivers and point of contact employees. • In addition, we asked questions regarding: – Operations of the business – Role Truck Drivers play – Intended nature of interaction between Truck Drivers and company • Q. Does Company ABC track Truck Drivers’ work progress? • A. “We can see in the system if a truck driver is scanning a lot of closures or a lot of address corrections…” • A. “We track service, meaning how many crates are delivered…” • A. “Not at all”
  • 73. Truck Drivers: Employee Interviews- Sample Questions & Responses September 30, 2016 73 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • Q. When they are in the warehouse, what are some reasons other Company ABC employees interact with Truck Drivers? • A. “My employees interact with them…to make sure that crates get onto trucks…” • A. “Truck drivers go to the check-out window and receive scanner and battery and papers…” • A. “If their truck position got moved, or if there is a new assistant, or to let them know about day to day things…” • Q. What training does Company ABC provide to drivers? • A. “None, we provide a safety information guide but that’s it..…” • A. “None that I can think of.” • A. “We will train them on how to use their scanners..”
  • 74. Truck Drivers: Employee Interviews- Sample Questions & Responses September 30, 2016 74 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • Q. Are there any guidelines Company ABC has for hours that Truck Drivers must work? • A. “No, we don’t dictate hours…” • A. “The only regulation for drivers are the DOT regulations…” • A. “No, there are hours of service guidelines mandated by the DOT…” • Q. Q. What truck driver records does Company ABC maintain? • A. “We maintain general qualifications file…” • A. “DOT file, the truck drivers name is on other documents, like their daily settlement…” • A. “We are required to keep inspection reports for DOT”
  • 75. Case Study of Truck Drivers Results Summary September 30, 2016 75 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group • Study provided client with comprehensive understanding of: • The work drivers are performing, how, when and the nature of any interaction drivers have with Company ABC. • The role Truck Drivers play in Company ABC’s operations. • Relevant secondary factors (e.g., equipment workers purchase and use) • Company was able to make informed decisions regarding how to proceed and minimize risk
  • 76. Managing Wage and Hour Compliance September 30, 2016 76 SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group These methods are also applicable to other wage and hour issues, such as: •Exempt/non-exempt misclassification •Off-the-clock (compensable work) •Meal and rest breaks •Donning and doffing •Tip pooling/ “Tippable” work
  • 77. September 30, 2016 77 Contact Info: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP E: rrosenberg@brgslaw.com T: 818-508-3702 Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP E: jfuchsman@brgslaw.com T: 818-508-3730 Christopher M. Ahearn Of Counsel Fisher & Phillips E: cahearn@laborlawyers.com T: (949) 798-2120 Elizabeth Arnold Director Berkeley Research Group E: earnold@thinkbrg.com T: 510.874.5964
  • 78. ► You may ask a question at anytime throughout the presentation today. Simply click on the question mark icon located on the floating tool bar on the bottom right side of your screen. Type your question in the box that appears and click send. ► Questions will be answered in the order they are received. Q&A: September 30, 2016 78 SEGMENT 1: Richard S. Rosenberg Partner Ballard Rosenberg Golper & Savitt, LLP SEGMENT 2: Christopher M. Ahearn Of Counsel Fisher & Phillips SEGMENT 4: Elizabeth Arnold Director Berkeley Research Group SEGMENT 3: Jeffrey P. Fuchsman Partner Ballard Rosenberg Golper & Savitt, LLP
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  • 80. September 30, 2016 80 ABOUT THE KNOWLEDGE GROUP The Knowledge Group is an organization that produces live webcasts which examine regulatory changes and their impacts across a variety of industries. “We bring together the world's leading authorities and industry participants through informative two-hour webcasts to study the impact of changing regulations.” If you would like to be informed of other upcoming events, please click here. Disclaimer: The Knowledge Group is producing this event for information purposes only. We do not intend to provide or offer business advice. The contents of this event are based upon the opinions of our speakers. The Knowledge Group does not warrant their accuracy and completeness. The statements made by them are based on their independent opinions and does not necessarily reflect that of The Knowledge Group‘s views. In no event shall The Knowledge Group be liable to any person or business entity for any special, direct, indirect, punitive, incidental or consequential damages as a result of any information gathered from this webcast. Certain images and/or photos on this page are the copyrighted property of 123RF Limited, their Contributors or Licensed Partners and are being used with permission under license. These images and/or photos may not be copied or downloaded without permission from 123RF Limited