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Uber Driver Compensation Claims Survive Summary Judgment in EDPA

October 3, 2017

By Samantha Banks

On September 13, U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania denied Uber’s motion for partial summary judgment in Razak v. Uber Technologies. It is the first time a district court in the Third Circuit is addressing the issue of compensation for Uber drivers.

The case is a putative class action and concerns Uber Black drivers, who provide limo services. The drivers claim Uber violated the Fair Labor Standards Act (FLSA) overtime and minimum wage requirements. They are seeking compensation for time spent online (while they were available to accept rides) but not transporting riders.  Uber argued the time cannot be compensable because the drivers can go offline any time.

Pointing out that drivers have only 15 seconds to respond to a trip request, Judge Baylson noted this requirement “may reasonably be considered” that “drivers are required by Uber to be tethered to their phones while online. Similarly, that drivers are automatically switched from online to offline after ignoring three trip requests could reasonably be considered a severe restriction on their ability to engage in personal activities.”

The court ordered the parties to complete discovery and to address whether Uber drivers are employees or independent contractors under the FLSA.   Although currently being addressed in other Circuits, this will be an interesting case to watch.  In June, a New York Department of Labor administrative judge ruled that Uber drivers are employees under state law and entitled to unemployment benefits in a case concerning an Uber black-car subsidiary. There, the court held that Uber’s exercising supervision and control over the drivers created an employer-employee relationship.  Uber is appealing that judgment.

As more service-oriented companies enter the market, whether employers classify workers as employees or independent contractors will become even more significant.  We will continue to monitor developments in these cases.

For more information regarding this or other labor and employment issues, please contact Jo Bennett or Michael Wietrzychowski, co-chairs of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

Crucial Labor and Employment Issues on the Line in Landmark U.S. Supreme Court Case

September 29, 2017

By Jo Bennett

UPDATE 10-04-2017

The oral argument before the U.S. Supreme Court on Monday, October 2, was reported in the media as reflecting a deeply divided Court. It was noted that many thousands of employers and 25 million employees from coast to coast will be affected by the decision in this case.

Questions from Chief Justice Roberts and Justices Alito and Kennedy seemed to indicate their understanding of the need identified by employers to resolve the tension between the Federal Arbitration Act and the National Labor Relations Act in a way that allows employers to efficiently resolve workplace disputes through arbitration. Deputy Solicitor General Jeffrey Wall argued in support of this position, saying: “It is a fundamental attribute of arbitration, and this Court said it three times [in past decisions], to pick the parties with whom you arbitrate. And our simple point is this case is at the heartland of the FAA. It is, at best, at the periphery of the NLRA, on the margins of its ambiguity, and you simply can’t get there under the Court’s cases.”

Justices Thomas and Gorsuch did not ask questions during the oral argument. It has been reported that Justice Gorsuch has supported the use of arbitration and sought to limit the scope of the NLRA in cases he decided as an appellate judge before joining the Supreme Court.


The U.S. Supreme Court will hear oral argument on Monday, October 2 in Epic Systems Corp. v. Lewis, an important labor and employment case in which Schnader has filed an amicus brief on behalf of the Mortgage Bankers Association and State Mortgage Lending Associations.

The appeal, which consolidates three cases from different federal circuits, addresses whether an employer can require employees to resolve work-related disputes through individual arbitration and not through collective actions. The issue before the Court points up the tension between the Federal Arbitration Act, which encourages arbitration of disputes, and the National Labor Relations Act, which gives employees the right to engage in concerted activity.

This case has drawn significant national interest, and not just from industry insiders. Articles about the case have appeared in USA Today and Newsweek. More than two dozen “friend of the court” briefs have been filed. The switch in presidential administrations earlier this year resulted in a reversal of the official position of the federal government, which now supports the employers’ position for upholding contracts mandating individual arbitration.

Businesses have a lot at stake in this case. Employers, especially small employers, are concerned about controlling the costs and risks associated with employment-related disputes. Employers depend on the efficiency and cost savings of arbitration, as well as the predictability and enforceability of class and collective action waivers, to resolve work-related conflicts.

While the case before the Supreme Court remains pending, employers should be mindful of the uncertainty of the legality of class-action waivers. In general, however, many employers will benefit by working with its counsel to prepare legally enforceable arbitration agreements to resolve employee disputes.

Stay tuned as Schnader closely follows the oral arguments on October 2 and as we assess the ultimate decision of the Court as it impacts employers of all kinds throughout the country. Follow us on SchnaderWorks and on Twitter @Schnader.

For more information regarding this or other labor and employment issues, please contact Jo Bennett, co-chair of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

Another Court Finds That Accessibility Rules Apply to Retail Websites

September 14, 2017

By Karen Baillie

Last month we told you that a court in Florida had ordered the Winn-Dixie supermarket chain to make its websites accessible to persons with vision impairments by following the Web Content Accessibility Guidelines 2.0 standards (WCAG 2.0).  This month, another court has weighed in.  In an opinion published on September 6, 2017 (but issued earlier on July 31, 2017), Judge Jack B. Weinstein of the Southern District of New York ruled that a retail website was a place of public accommodation under the Americans with Disabilities Act (as well as under state and local law) and therefore the owner the website had to take “the steps necessary to ensure that the blind have full and equal enjoyment of its website – provided that taking such steps would not impose an undue burden on Blick or fundamentally alter the website.”  Andrews v. Blick Art Materials, LLC, 17-CV-767, NYLJ 1202797331595, at *15 (EDNY, Decided July 31, 2017).

Judge Weinstein rejected Blick’s argument that web-only services need not be accessible.  Rather, the court held that a website could be a place of public accommodation and that the purpose of the ADA is to ensure equal access to persons with disabilities.  The court thought it would be “absurd” to conclude otherwise.  “A rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.  It would be perverse to give such an interpretation to a statute intended to comprehensively remedy discrimination.” Id. at *23.

Likewise, the court also rejected the argument that the Department of Justice’s failure to issue specific rules for website accessibility for public accommodations was no excuse for delay:  “The plaintiff has made a prima facie case that Blick is violating his rights under the ADA.  The court will not delay in adjudicating his claim on the off-chance the DOJ promptly issues regulations it has contemplated issuing for seven years but has yet to make significant progress on.”  Id. at *32.

Blick also argued that because there were no rules it was impossible to comply.  Judge Weinstein acknowledged that the lack of specific rules did lead to uncertainty about compliance, but he pointed out that the ADA is meant to be flexible, with lots of gray area:

“But the anti-discrimination provisions the defendant is accused of violating are not simple checklists of clear-cut rules- they are standards that are meant to be applied contextually and flexibly.  The ‘gray’ the defendant complains of is a feature of the Act.

The ADA requires public accommodations to provide ‘reasonable modifications’ or ‘auxiliary aids or services’ to disabled individuals to ensure them the ‘full and equal enjoyment’ of the goods, services, and accommodations places of public accommodation provide; public accommodations do not discriminate if the modifications needed are unreasonable or would ‘fundamentally alter the nature’ of the good, service or accommodation; they also do not discriminate if the provision of auxiliary aids or services would be ‘unduly burdensome’…  Id. at *33-34.

This decision reminds us that advocacy groups and others are filing lawsuits to enforce website accessibility.  Businesses that maintain websites are advised to discuss universal accessibility with their website designers so that they are prepared to address these issues.

For more information regarding this or other labor and employment issues, please contact Karen Bailliea member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

NJ Appellate Court Tosses Employee Arbitration Agreement

August 31, 2017

By Michael J. Wietrzychowski

In Dugan v. Best Buy, an unreported decision (thus far) by the New Jersey Appellate court, we are again reminded of the requirement that an employee’s waiver of the right to sue contained in an employee-employer arbitration agreement must be clear and unambiguous, and any waiver that falls short of this exacting standard will not be enforced under New Jersey law.

Please click here to read more.

For more information regarding this or other labor and employment issues, please contact Michael J. Wietrzychowski, co-chair of Schnader’s Labor and Employment Practices Group.

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

 

 

BREAKING: Pay Data Rules Placed on Hold for EEO-1 Form

August 30, 2017
tags:

By Jo Bennett

The new rules announced in late 2016 revising the Employer Information EEO-1 report on pay data collection have been placed on hold.

On August 29, 2017, the Office of Management and Budget (OMB) informed the Equal Employment Opportunity Commission (EEOC) that OMB had initiated “a review and immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016. These revisions include new requests for data on wages and hours worked from employers with 100 or more employees, and federal contractors with 50 or more employees. EEOC may continue to use the previously approved EEO-1 form to collect data on race/ethnicity and gender during the review and stay.”

The EEOC also announced: “The previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect. Employers should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018.”

Read the EEOC announcement here and the OMB memo here.

Although many companies and their Human Resources teams no doubt are relieved that OMB has put on hold what many viewed as a burdensome data collection, employers should continue to be vigilant on compensation issues.  The EEOC’s strategic enforcement plan for 2017- 2021 continues the agency’s focus on gender-based pay discrimination in particular, and the Office of Federal Contract Compliance Programs, which has jurisdiction over federal contractors, continues its collection of detailed compensation data during compliance evaluations.

 

For more information regarding this or other labor and employment issues, please contact Jo Bennett, co-chair of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

Think Accessibility When Designing Your Webpage and Apps

August 28, 2017

By Karen Baillie

On June 13, 2017, Judge Robert N. Scola Jr. of the United States District Court for the Southern District of Florida ordered Winn-Dixie Stores, Inc. to make its website accessible by persons with disabilities, including those who rely on screen readers and other adaptive software.  See Gil v. Winn-Dixie Stores, Inc., Case 1:16-cv-23020-RNS (S.D. Fla. June 13, 2017).  Judge Scola ordered the grocery store chain to implement a Web Accessibility Policy and to make its website conform to the Web Content Accessibility Guidelines 2.0 standards (WCAG 2.0).

The plaintiff, Mr. Gil, is visually impaired and relies on adaptive software including a JAWS screen reader.  He is very familiar with the options for adaptive software and works to train others to use technology.  He faulted the Winn-Dixie website for not allowing his screen reader to direct him to store locations, nor to access coupons or manage prescriptions through the pharmacy.  Judge Scola found that Winn-Dixie, a public accommodation, violated the Americans With Disabilities Act in failing to provide individuals with disabilities, “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”  Slip Opinion at 10, quoting 42 U.S.C.  §12182(a).

Even though Mr.  Gil was not denied physical access to the store, Winn-Dixie violated the ADA because “[t]he services offered on Winn-Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixies’ physical store locations. “  Slip Op. at 10.  “Therefore, Winn-Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations that Winn-Dixie offers to its sighted customers.” Id.

Judge Scola further found that WCAG is the industry standard for accessibility, noting that the federal government’s Access Board (an independent agency that promotes equality for people with disabilities) virtually adopted the WCAG guidelines in a final rule published January 18, 2017.  More information about the WCAG standards can be found at this link: Web Accessibility Initiative.

In recent years, website accessibility has become a hot issue.  Lawsuits have increased against restaurants, schools and businesses by individuals and advocacy groups seeking to spread awareness of the need to make sites accessible.  Business owners should think about accessibility at the initial stages of development for web applications and social media advertisements that link customers with their wares.  Common website problems that make it difficult for persons using adaptive software and others with disabilities include:

  • Important images missing text descriptions (“alt tags”)
  • Important content accessible only by people who can use a computer mouse
  • Color combinations made text difficult or impossible to see by those with low vision
  • Videos not captioned
  • Graphs don’t line up

For more information regarding this or other labor and employment issues, please contact Karen Bailliea member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

DOL Requests Feedback on Overtime Rule

July 27, 2017

By Jo Bennett

The U.S. Department of Labor is seeking public input on what to do with the Obama administration overtime rule.  In Wednesday’s edition of the Federal Register, the DOL published a “Request for Information Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.”  Interested parties will have 60 days (until September 25, 2017) to provide comments.  A preview of the RFI is available here.

By way of recap, the DOL published the 2016 Final Rule on May 23, 2016 as part of the Obama administration’s focus on increasing pay equity. Under the Final Rule, the minimum salary required to classify workers as exempt was increased from $23,660 to $47,476, which is the 40th percentile of average weekly wages of full-time salaried employees according to the Bureau of Labor Statistics. The rule was set to go into effect on December 1, 2016, but a federal judge in the U.S. District Court for the Eastern District of Texas blocked the regulation nationwide. The case is currently pending before the Fifth Circuit Court of Appeals. At issue is whether the DOL has the authority to utilize a salary level test in determining the exempt status of executive, administrative and professional employees.

The Trump administration is no longer advocating the salary level ($913 per week) set forth in the 2016 Rule.  Citing Executive Order 13777, which tasked federal agencies with identifying for modification any regulations that inhibit job creation or interfere with regulatory reform policies, the DOL says it is evaluating the 2016 Final Rule with a focus on lowering regulatory burden.

The request for information seeks comment on the salary level test, the duties test, standard salary levels, the inclusion of non-discretionary bonuses and incentive payments in standard salary levels, and the exemption for highly compensated employees.  In addition, it solicits feedback about the impact that the 2016 Final Rule had on employers who made changes in anticipation of the effective date.

For more information regarding this or other labor and employment issues, please contact Jo Bennett, co-chair of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

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