Tag Archives: government

California Labor Commissioner says an Uber driver is an employee, not a contractor

Shocking News! (Really? Actually, no, not really.) Last night, Uber filed an appeal in San Francisco Superior Court.  The appeal is to challenge a ruling of the California Labor Commissioner that an Uber driver should be classified as an employee, not an independent contractor. Uber claims that its drivers are not employees; instead, Uber facilitates logistics for contractors who sign on to its service.   Drivers and passengers use the app for “private transactions.”   But behind that app is, well, a fleet of drivers: earlier this month, Uber announced it has 26,000 drivers in New York City, 15,000 in London, 22,000 in San Francisco, 10,000 in Paris and 20,000 in Chengdu, China. Uber’s position is that does not exert any control over the hours its drivers worked and does not require drivers to complete a minimum number of trips. The Labor Commissioner reviewed the ways Uber does act more like an employer – providing drivers with phones and deactivating the driver app if the individual is inactive for a period of time.  And when it comes to determining whether a worker is an employee or a contractor, the Labor Commissioner, the IRS, the EDD, etc., see the default to be an employment relationship when work is performed. What does this mean for  you – even if you aren’t a facilitator of private transactions? You should take a close look at any contractors you use. It is critical to review what the contractor is actually doing on behalf of your business and what rights the business has retained in controlling that “contractor.”

On June 18, 2015 I presented a webinar on independent contractors and the Uber case. You can view it at the HR Options webinar archive site here.   You can read more about the webinar here. For more on the Uber matter, the New York Times has a short article here with a link to the underlying ruling.

Trick or Treat, Part 2 – More on California’s New Employment Laws

In my last post, I talked about the “noisier” new laws that California employers need to be prepared for at the start of the year.   Here are some others to keep in mind – and a few of the noisiest bills that didn’t make the cut:

Wage Statements.  Along with everything else you need to do to get ready for 2013, make sure that your payroll department or service is complying with California’s rules for wage statements.  Last year, a court found that if some information was missing from a wage statement, it wasn’t that big of a deal – the employee wasn’t really “injured” and a penalty wasn’t appropriate.  Under the new law, an employee is definitely injured if the wage statement is incorrect.  So, make sure that an employee can “promptly and easily” determine from the wage statement the gross wages earned during the pay period, the deductions taken, the employer’s name and address, and identifying information of the employee (name, last four digits of the SSN or other ID number).

Salaries for Nonexempt Workers.   If you have a contract with a nonexempt employee to pay her a salary or fixed amount for “all hours worked,” that amount will be used to determine the base or regular rate for overtime pay, no matter what the agreement says about an overtime rate.

Protected Status for Breastfeeding Employees.  The Fair Employment and Housing Act (FEHA)  now specifically states that employers can’t discriminate against employees based on their breastfeeding status.  This was already the law, but now FEHA states that  the term “sex” also includes breastfeeding or medical conditions related to breastfeeding.

Written Commission Agreements.  This is a reminder about a law signed last year with a delayed effective date.  By January 1, 2013, all employers who pay California employees on a commission basis must have written, signed commission agreements.  The agreement must set forth the method by which commissions are computed and paid and must be signed by both the employer and employee.  This is a great opportunity to define when a commission is actually “earned,” since when it is earned it becomes a wage that cannot be forfeited.

What bills got “stuck on Capitol hill” (or California’s version of that)? There are three big ones.

AB 1450 would have prohibited discrimination in hiring based on an applicant’s unemployed status – in other words, no “help wanted” ads that require the applicant be currently employed.   Governor Brown vetoed the bill, saying it would cause unnecessary confusion.

AB 889 would have required the state to create overtime, meal and rest break, and other working condition rules for domestic workers like nannies, elder care providers and maids.  The governor vetoed the bill, saying that the issue needs more study.

AB 2039 got stuck in Committee.   The Bill would have expanded the California Family Rights Act by  (1) permitting an employee to take protected leave to care for his independent adult child suffering from a serious health condition, (2) expanding the definition of parent to include a “parent-in-law”, and (3) permitting an employee to also take leave to care for a seriously ill grandparent, sibling, grandchild, or domestic partner.

There are a lot of other new laws.  California’s State Senate and Assembly introduced 1,899 bills this year. 996 bills were sent to Governor Brown, who signed 876 and vetoed 120. I’ve talked about less than 10.  If you were hoping to read about a new employment law that I didn’t talk about, let me know!  Email me at jdebacker@mstpartners.com