Grubhub Independent Contractors

Judge Rules Grubhub Drivers Independent Contractors Not Employees

In a significant court decision on the status of gig-economy workers, U.S. Magistrate Judge Jacqueline Scott Corley concluded on February 8, 2018, that drivers for Grubhub Inc. are independent contractors and not employees under California law. The ruling may have implications for other sharing economy companies, including Uber and Lyft, whose business models are built on pairing customers with products and services through apps while avoiding the personnel costs of traditional employment.

Lawson v. Grubhub Inc.
The case against Grubhub was brought by Raef Lawson, who worked as a food-delivery driver for less than six months while pursuing a career as an actor and writer. In 2015, Lawson sued Grubhub claiming the company violated California labor laws by not reimbursing his expenses, paying him less than minimum wage and failing to pay overtime. Lawson claimed he should have been classified as an employee, not a contractor.

The case was originally filed as a proposed class-action lawsuit, but the judge never granted that status, so it was only limited to him and his claimed $600 in damages–consisting of back wages, overtime, and expense reimbursement. Both sides had agreed that Judge Corley, rather than a jury, would decide the case in her San Francisco federal courtroom. Closing arguments were heard in late October 2017.

Borello Test
A key element of the case centered around the Borello test, which is used to determine whether a worker is a 1099 contractor or a W-2 employee. The Borello test considers workplace circumstances like whether the work performed is part of the company’s regular business, the skills required to do the job, payment methods, and whether the work is done under the supervision of a manager.

Elements of the case in Lawson’s FavorGrubhub Independent Contractors “Grubhub did control some aspects of Mr. Lawson’s work,” Judge Corley commented. “Grubhub determined the rates Mr. Lawson would be paid and the fee customers would pay for delivery services. While the Agreement states that a driver may negotiate his own rate, this right is hypothetical rather than real. The Court finds that Mr. Lawson could not negotiate his pay in any meaningful way and therefore this fact weighs in favor of an employment relationship.”

Elements of the case in Grubhub’s Favor
In Judge Corley’s estimation, in addition to working for other gig economy companies while simultaneously working for Grubhub, Lawson was fundamentally “not credible.” By his own admission, Lawson “gamed the app” by scheduling himself for a work shift (a “block” in company parlance) but received few, if any, actual delivery orders by putting his phone in airplane mode, among other tactics.

“Mr. Lawson’s claimed ignorance of his dishonest conduct is not credible,” Judge Corley wrote. “Mr. Lawson would remember if after he filed this lawsuit against Grubhub he cheated Grubhub. If he had not moved his smart phone to airplane mode, intentionally toggled available late, or deliberately engaged in other conduct to get paid for doing nothing he would have denied doing so at trial. But he did not.”

Other aspects that were not in Lawson’s favor of being treated as an employee included 1) he could set his own schedule, 2) largely wear whatever clothes he wanted, and 3) he could choose his own route.

The Decision
Under California law, whether an individual performing services for another is an employee or an independent contractor is an all-or-nothing proposition,” Judge Corley concluded.

“If Mr. Lawson is an employee, he has rights to minimum wage, overtime, expense reimbursement, and workers compensation benefits. If he is not, he gets none. With the advent of the gig economy and the creation of a low-wage workforce performing low skill but highly flexible episodic jobs, the legislature may want to address this stark dichotomy. In the meantime the Court must answer the question one way or the other. Based on what the Court observed at trial and the facts found, and after applying the Borello test, the Court finds that during the four months Mr. Lawson performed delivery services for Grubhub he was an independent contractor.”

Reaction
Shannon Liss-Riordan, Lawson’s lawyer, said she plans to appeal the ruling. “Among other issues, the California Supreme Court is considering adopting a more protective test for employee status, so I was surprised the decision was issued before the Supreme Court has issued that decision…we should have prevailed even under the Borello standard,” Liss-Riordan said. 

Matt Maloney, chief executive officer of Grubhub, said the company is pleased with the ruling, “which validates the freedom our delivery partners enjoy from deciding when, where and how frequently to perform deliveries…We will continue to ensure that delivery partners can take advantage of the flexibility that they value from working with Grubhub,” Maloney said.

Conclusion
People who work as 1099 contractors can set their own schedules, and decide when, where and how much they want to work. Employers utilizing 1099 contractors avoid paying taxes, overtime pay, benefits and workers’ compensation. However, some companies have recognized that some people don’t want to be independent contractors, and prefer the benefits that come with employee status. 

Additional Resources: Daily Journal article by Eric B. Kingsley: Let’s talk about a ‘hybrid’ worker. 

Employers are advised to review independent contractor relationships and evaluate agreements with third parties, and contact an employment lawyer with questions. To discuss these laws, or a potential claim on your behalf, feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

california employment lawyer Liane Katzenstein Ly

Kingsley & Kingsley Elevates Attorney Liane Katzenstein Ly to Partner

February 13, 2018

News Release Contact:
Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)


Kingsley & Kingsley Attorney Names Liane Katzenstein Ly as Partner
• Ms. Ly has been practicing employment law since 2008
• Ms. Ly focuses her practice on wage and hour law and complex class action litigation cases


The law firm of Kingsley & Kingsley is pleased to announce that Liane Katzenstein Ly has been named partner in the firm. A graduate of the University of California Davis School of Law, Ms.Ly has been representing plaintiffs in a wide range of employment cases since 2008.

Ms. Ly represents plaintiffs in employment litigation including class actions and individual employment cases. She concentrates her practice on wage and hour law, class action litigation, and employment law. Ms. Ly’s experience includes consumer class action cases including claims for failure to pay wages, the denial of meal and rest periods, misclassification of employees, and unfair competition cases, among others. Ms. Ly also litigates representative action cases pursuant to the Private Attorneys General Act (PAGA).

We are thrilled to announce the election of Ms. Ly as a partner in our firm,” said firm co-founder and managing partner Eric B. Kingsley. “We have an experienced and incredibly accomplished group of employment litigators, and Liane’s results speak for themselves. She has dedicated her career to protecting employees’ rights and she will continue to benefit all of our clients in their fight against corporate wrongdoing.

Ms. Ly is an honors graduate of Florida State University, and while at University of California Davis School of Law, she was an editor of the Environmental Law Journal and a board member of the King Hall Negotiations Team.california employment lawyer Ly

Ms. Ly is admitted to practice in all California state courts as well as the United States District Court for the Central District of California.

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Since 2001, the lawyers at Kingsley & Kingsley have been dedicated to helping workers harmed by the wrongdoing of employers throughout California. The firm is well-respected statewide for its work in successfully representing plaintiffs with wage and hour disputes and protecting their rights. Kingsley & Kingsley exclusively represents employees and focuses its practice on wage & hour and consumer class action cases including claims for failure to pay wages, the denial of meal and rest periods, misclassification of employees, and unfair competition cases. Kingsley & Kingsley also regularly litigates representative action cases pursuant to the Private Attorneys General Act (PAGA). Kingsley & Kingsley also handle cases involving sexual harassment, discrimination, pay inequity, and wrongful termination cases. The firm also serves individuals dealing with disability claims and an insurance company’s denial of benefits. Based in Los Angeles, California, Kingsley & Kingsley handles cases in state and federal courts across California and nationwide.

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Kelsey M. Szamet - California employment lawyer

Kingsley & Kingsley Elevates Attorney Kelsey M. Szamet to Partner

February 12, 2018

News Release Contact:
Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)


Kingsley & Kingsley Attorney Names Kelsey M. Szamet as Partner
• Ms. Szamet has been practicing employment law since 2008
• Ms. Szamet focuses her practice on complex class action litigation and individual employment cases


The law firm of Kingsley & Kingsley is pleased to announce that Kelsey M. Szamet has been named partner in the firm. A graduate of the UCLA School of Law, Ms. Szamet has been representing plaintiffs in a wide range of employment cases since 2008 and has been recognized as a “Rising Star” by Super Lawyers magazine each year since 2014.

Ms. Szamet represents plaintiffs in employment litigation including complex class actions and individual employment cases. She concentrates her practice on wage & hour and consumer class action cases including claims for failure to pay wages, the denial of meal and rest periods, misclassification of employees, and unfair competition cases, among others. Ms. Szamet also frequently litigates representative action cases pursuant to the Private Attorneys General Act (PAGA). In addition to her robust class and representative action experience, Ms. Szamet successfully represents plaintiffs in wrongful termination, sexual harassment, and discrimination cases. She is also well-versed at the appellate level and has authored several appellate briefs in both state and federal court.

Kelsey M. Szamet - California employment lawyer

“We are thrilled to announce the election of Ms. Szamet as a partner in our firm,” said firm co-founder and managing partner Eric B. Kingsley. “We have a very accomplished group of employment litigators, and Kelsey’s experience speaks for itself. She has dedicated her career to protecting employees’ rights and she will continue to benefit all of our clients in their fight against corporate wrongdoing.”

Ms. Szamet received her Bachelor of Arts degree, cum laude, from the University of California San Diego, where she majored in Human Development and minored in Communications. While attending UCLA School of Law, Ms. Szamet was active in the Women’s Law Journal and various community-based legal clinics.

In addition to her work with the firm, Ms. Szamet dedicates her time to several non-profit organizations, and recently concluded her tenure as Vice President of the Board of Directors for the YWCA – Greater Pasadena Foothill Valley. She currently sits on the Board of Directors for the Child Educational Center.

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Since 2001, the lawyers at Kingsley & Kingsley have been dedicated to helping workers harmed by the wrongdoing of employers throughout California. The firm is well-respected statewide for its work in successfully representing plaintiffs with wage and hour disputes and protecting their rights. Kingsley & Kingsley exclusively represents employees and focuses its practice on wage & hour and consumer class action cases including claims for failure to pay wages, the denial of meal and rest periods, misclassification of employees, and unfair competition cases. Kingsley & Kingsley also regularly litigates representative action cases pursuant to the Private Attorneys General Act (PAGA). Kingsley & Kingsley also handle cases involving sexual harassment, discrimination, pay inequity, and wrongful termination cases. The firm also serves individuals dealing with disability claims and an insurance company’s denial of benefits. Based in Los Angeles, California, Kingsley & Kingsley handles cases in state and federal courts across California and nationwide.

Facebook: Kingsley & Kingsley
LinkedIn: Kingsley & Kingsley

workplace discrimination

Google Accused Of Workplace Discrimination Against White Conservative Men

Workplace Discrimination Case

The engineer who was fired by Google after he criticized its diversity policies last August claims in a lawsuit that he and others at the internet giant faced harassment and workplace discrimination due to their conservative political views. This latest lawsuit against Google comes on the heels of a lawsuit brought against the company in December citing violations of the California Equal Pay Act. That suit alleges that Google discriminates against its women employees by systematically paying them lower compensation than their male peers for performing substantially similar work under similar working conditions. 

Damore v. Google, LLC. (Cal. Sup. Ct., Santa Clara Cty.)

On January 8, former Google engineer James Damore, who famously circulated a memo about Google’s so-called “ideological echo chamber,” and a fellow former Google employee filed a discrimination class action complaint against Google on behalf of all employees of Google discriminated against “due to their perceived conservative political views,” “their male gender,” and/or “their Caucasian race.” 

The other ex-Googler named as a plaintiff is David Gudeman, who says he was an engineer for three years until he was wrongfully terminated in December 2016. The two men claim they were “ostracized, belittled and punished for their heterodox political views, and for the added sin of their birth circumstances of being Caucasians and/or males.”

The complaint alleges the following:

  • that employees who deviated from the “majority view” at Google regarding issues such as “‘diversity’ hiring policies, ‘bias sensitivity,’ or ‘social justice,’” were singled out, mistreated, and systematically punished and terminated from Google.
  • that the company’s “open hostility” to conservative thought leads to discrimination in hiring, promotion, and termination decisions on the basis of race and gender because of the “extreme” lengths Google allegedly goes to in taking race and/or gender into consideration as determinative hiring factors, to the detriment of white males.
  • that several of Google’s diversity initiatives, including, among other things, a “Diversity and Inclusion Summit” and a “diversity training class,” as evidence of bias against conservative white men.
  • “Google’s current method of increasing diversity resulted in what is known as reverse discrimination, because Caucasian and Asian males were not being selected for jobs and promotions due solely to their status as non-females or non-favored minorities.”

Damore’s Attorney

workplace discrimination

Damore’s attorney is Harmeet Dhillon, a civil rights lawyer who has taken on cases that push back against the Bay Area’s progressive tendencies. As part of a press conference, Dhillon, a California representative for the Republican National Committee, elaborated more on the very lengthy complaint and argued that her current clients are far from alone. Dhillon suggested that she had spoken with “dozens” of employees at Google to formulate the lawsuit and that she expects there will be “future lawsuits” to explore, as well.

California Employment Law

Protected classes called out in both state and federal statutes, such as sex, religion, race, etc. are broadly defined. As such, every person can face discrimination, and it is just as unlawful if targeted against white men as it would be against any other group. As long as an employee is negatively impacted because of his or her membership in a protected class, that counts as discrimination and could form the basis for a lawsuit. Further, California law also bans private employers from discriminating against workers due to their political views, affiliations, or activities.

If you are living in Los Angeles, San Francisco, Sacramento, or San Diego and feel you have been a victim of workplace discrimination, contact Kingsley & Kingsley to speak with one of our experienced lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

Court of Appeals – PAGA Plaintiffs Do Not Have to Assert Injury or Employer Knowledge in PayStub Violations

Two Key Points in Court of Appeal’s Decision In Lopez v. Friant & Associates, LLC PAGA paystub violations California lawyers

In a recent decision handed down by the First District Court of Appeal, civil penalties under the Private Attorneys General Act of 2004 (“PAGA”) as set forth in the Labor Code, can be awarded for incomplete or inaccurate wage statements even if the employee was not injured by the omission or inaccuracy and even if the omission or inaccuracy was not the result of knowing or intentional conduct by the employer. However, the trial court has discretion under PAGA to decline to award PAGA penalties or reduce the amount of those penalties based on evidence that the omission or inaccuracy was inadvertent.

Background

In 2015, Eduardo Lopez filed a single-count complaint under the California Private Attorneys General Act (PAGA) in California state court asserting that his employer, Friant & Associates, LLC failed to include the last four digits of its employees’ Social Security numbers or employee identification numbers on itemized wage statements, in violation of California Labor Code Section 226(a)(7).

Friant moved for summary judgment, arguing that the plaintiff failed to show that he suffered any injury resulting from a knowing and intentional violation of Section 226, as required by Section 226(e). The trial court granted summary judgment, concluding the employee must show more than a mere violation of Labor Code §226 and he also must demonstrate that he was injured as a result of a “knowing and intentional” violation.  Because the employee offered no evidence to contradict the statement of the employer that it was not aware the last four digits of employees’ Social Security numbers were not included on employees’ pay stubs, the court ruled in favor of the employer.

However, the appellate panel reversed, concluding that because a PAGA representative action is not an action for statutory damages, the employee did not have to demonstrate injury as a result of a knowing and intentional violation of Labor Code §226 to obtain the civil penalties under PAGA.  However, PAGA does allow the trial judge to decline to award PAGA penalties or reduce the amount of a PAGA award, based on the evidence that the error or omission in the wage statement was inadvertent.

“Because section 226(e)(1) sets forth the elements of a private cause of action for damages and statutory penalties, its requirement that a plaintiff demonstrate ‘injury’ resulting from a ‘knowing and intentional’ violation of section 226(a) is not applicable to a PAGA claim for recovery of civil penalties,” the court wrote. The panel further explained that its interpretation was bolstered by “the fact PAGA expressly recognizes a claim for violation of section 226(a), but does not mention 226(e),” the court said. “Thus, by its plain language, PAGA allows a claim for violation of section 226(a) without any reference to subdivision (e).”

PAGA

California rolled out a unique approach to enforcing the State’s Labor Code when it enacted the Private Attorney General Act of 2004 (PAGA) codified in California Labor Code § 2698, et seq.  PAGA allows a private citizen to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency (LWDA) provided the formal notice and waiting procedures of the law are followed.

More specifically, PAGA allows current and former employees to file lawsuits to recover civil penalties that would otherwise only be recoverable by the government.  It is used for wage-and-hour and safety violations, and the lawsuits are filed on behalf of the named employee and other “aggrieved” current and former employees.

While similar to a “class-action lawsuit”, a PAGA claim is considered a “representative lawsuit,” and it can be pursued without meeting all the requirements of class certification.  That means it is easier for the employee’s attorney to pursue, but still has the consequences of aggregating multiple employees.

The concept behind the law is that the state’s labor agency does not have the resources to handle the penalty claims.  The statute authorizes private attorneys to step into the state’s shoes to pursue those cases and entitles them to recover reasonable attorney’s fees if the employee prevails.

Since its enactment, PAGA has been the source of much confusion and the legislature continues to review bills to modify PAGA. None of these bills deal with the differing interpretations about whether and how PAGA penalties apply to certain types of violations—particularly claims brought under section 226(a).

California Employment Lawyers

While questions remain about PAGA, and amendments continue to be filed, the there remains numerous benefits as a result of its passing more than a decade ago. Our firm continues to prosecute these claims as the best way to create change in corporate America. To further discuss PAGA, or a potential claim on your behalf, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

California’s Latest Ban the Box Law

ban the boxBan the Box

On October 14, 2017, Governor Jerry Brown signed AB 1008 into law, enacting a broad “Ban the Box” law that takes effect on January 1, 2018. The new law prohibits most California public and private employers from asking an applicant about criminal conviction history until after a conditional offer of employment has been made. Therefore, within less than 2 months, California employers will have to modify job applications and ensure criminal background checks are not conducted prior to an employer making a conditional offer of employment.

Background on Ban the Box Legislation
The passing of AB 1008 follows a recent history of related California legislation. In 2013, California enacted Labor Code section 432.9, which prohibited public employers from inquiring about criminal conviction history until the employer has determined that the applicant met the minimum qualifications for the job. Changes in local laws followed, as the cities of Los Angeles and San Francisco enacted their own “ban-the-box” ordinances, applicable to private employers doing business in those cities. Then, in June 2017, the California Fair Employment and Housing Council promulgated new regulations that limit an employer’s ability to consider the criminal history of a job applicant or employee when making employment decisions.

Who is Impacted by AB 1008?
AB 1008 amends the California Fair Employment and Housing Act (FEHA), which covers all California employers with five or more employees. Only the following positions are exempted: (1) positions for which a government agency is required by law to conduct a conviction history background check; (2) positions with criminal justice agencies; (3) Farm Labor Contractors (as defined by the Labor Code); and (4) positions for which a state, federal, or local law mandates that an employer conduct a criminal history background check for employment purposes, or restricts employment based on criminal history.

When does it go into effect?
AB 1008 goes into effect on January 1, 2018.

What constitutes prohibited actions?
The following conduct is now prohibited before an employer makes a conditional offer of employment:

  • Including in any application (whether written or oral) any question that seeks the disclosure of an applicant’s conviction history;
  • Considering an applicant’s conviction history;
  • Considering, distributing, or disseminating information about any of the following while conducting a conviction history background check in connection with any application for employment:
    • arrest not followed by conviction (except as provided in Labor Code § 432.7(a)(1) and (f))
    • referral to or participation in a pretrial or post-trial diversion program; and
    • convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

What’s allowable following a conditional offer of employment?
After extending a conditional offer of employment, the employer may conduct a background check and obtain a record of the applicant’s criminal history. If the criminal record reveals information that the employer feels necessary to reject the applicant solely or in part because of the applicant’s conviction history, the employer must evaluate if the conviction history would have a “direct” and “adverse” relationship with the specific duties of the job. As part of the evaluation, the employer should consider the nature and gravity of the offense or conduct, the time that has passed since the conduct and completion of the sentence, and the nature of the job held or sought.

If the employer makes a preliminary determination that the offense is worthy of disqualification, the employer is required to notify the applicant in writing and include numerous required elements such as the disqualifying conviction(s), a copy of the conviction history report, and an explanation of the applicant’s right to respond. After the notification is provided, the applicant has five days to respond.

Conclusion
All California employers should review recruitment policies, procedures and forms to ensure they adhere to the latest “Ban the Box” law, especially the revised prohibitions and processes required for applicant notification and disqualification. Employers should also ensure the proper classification of jobs and the determination of those jobs that may be exempt from the provisions within AB 1008. 

Should you have questions about the Ban the Box law, or any of California’s labor laws, don’t hesitate to to contact leading employment lawyers at Kingsley & Kingsley prior to AB 1008’s effective date of January 1, 2018. Feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)