Linkedin Employee References Lawsuit

January 12, 2016 by

employee referencesA common complaint among job seekers is that they can not get employee references from past employers. More and more, employers are refusing to provide information about past employees beyond their job titles and dates of employment. This is primarily out of fear of lawsuits that could arise if a comment about a former employee convinces another employer not to hire them.

2015 saw the dismissal of a complaint filed by employees who took a novel approach after finding themselves in this situation: They sued the job networking website LinkedIn, for providing their prospective employers with the identities of potential employee references. They argued that LinkedIn’s actions violated the Fair Credit Reporting Act (FCRA), which requires consumer reporting agencies to maintain “reasonable procedures” for providing information.

Is LinkedIn a Consumer Reporting Agency?

In Sweet v. LinkedIn Corporation, the U.S. District Court of the Northern District of California granted LinkedIn’s motion to dismiss the complaint. The Court concluded that LinkedIn is not a “consumer reporting agency” under the FCRA, and thus many of the FCRA’s provisions did not apply to it. Magistrate Judge Paul S. Grewal, who wrote the order, stated that LinkedIn was not in the business of providing consumer reports, under the FCRA’s definition.

LinkedIn’s Reference Search feature allows users to access the names of LinkedIn members’ current and former employers, as well as the names of people in the users’ networks who have worked with the members. The order states that this kind of information does not constitute a consumer report because the information is provided by the consumers (in these cases, the plaintiffs) when they create their LinkedIn profiles. The language of the FCRA clarifies that reports “containing information solely as to transactions or experiences between the consumer and the person making the report” are not considered consumer reports.

The order also states that even if the employee references information offered by LinkedIn constituted consumer reports, the FCRA would still not apply because LinkedIn is not a consumer reporting agency. The FCRA defines a consumer reporting agency as an entity that assembles or evaluates information on consumers for the purpose of furnishing consumer reports to third parties for monetary fees, which uses interstate commerce for the purpose of preparing or furnishing the reports. In addition, the FCRA states that an entity does not qualify as a consumer reporting agency if it conveys information about a consumer to a third party with the consumer’s consent, in order to provide a specific product or service requested by the consumer.

According to the Court, LinkedIn does not qualify as a consumer reporting agency because the information that it offered was provided by the plaintiffs. The dismissal order states that this supports an inference that LinkedIn is carrying out consumers’ information-sharing objectives, rather than creating consumer reports. [Read more…]

Filed Under: Fair Credit Reporting Act Tagged With: , ,

Wal-Mart Violating Minimum Wage Laws Per CA Court

January 1, 2016 by

violating minimum wage lawsHas Wal-Mart been violating minimum wage laws? Wal-Mart’s trucking system has gotten a great deal of attention recently, as a Wal-Mart driver has been charged with manslaughter for his role in the auto accident that left comedian Tracy Morgan severely injured. However, California employers would be well advised to take note of a different court case involving Wal-Mart and trucking – Ridgeway v. Wal-Mart Stores, Inc. – which has set some important precedents regarding minimum wage standards.

The case involves a group of Wal-Mart truck drivers who sued their employer, on the grounds that they were not paid minimum wage for all of the hours that they worked. They alleged that Wal-Mart should have paid them at least minimum wage for the time they spent on mandatory layovers, and on activities such as fueling, making inspections, and finishing their paperwork. Wal-Mart argued that the drivers were not entitled to minimum wage for time spent on layovers, and that the aforementioned activities were subsumed within other activities for which the drivers were paid at least minimum wage.

When the plaintiffs filed a motion for summary judgment on whether Wal-Mart’s payment policies were in compliance with California law, the U.S. District Court for the Northern District of California granted their motion. The Court’s order included the following findings:

  • The Court rejected Wal-Mart’s claim that activities like fueling, making inspections, and finishing paperwork could be subsumed into other activities. The order states that employers are not allowed to “build in” time spent on non-driving activities into a piece-rate compensation system, but instead must pay employees such as the plaintiffs at least minimum wage for all hours worked.
  • The Court held that Wal-Mart was required to pay the drivers the minimum wage for time spent on layovers. Wal-Mart, which paid the drivers $42 total for 10-hour layovers, argued that the drivers were not subject to their control during their layovers, but the Court rejected this argument. According to the order, the drivers were subject to their employer’s control during layovers because Wal-Mart prohibited the employees from spending the layovers at home, and set limitations on where the layovers could take place.
  • Wal-Mart pointed out that general transportation managers provided discretionary payments to drivers at times. The plaintiffs argued that while the payments may be relevant to the amount of damages, they were not relevant to the motion for summary judgment. The Court agreed with the plaintiffs and stated that the discretionary nature of the payments demonstrated that they were not indicative of Wal-Mart’s standard pay policy.

Could Your Business Be Violating Minimum Wage Laws?

If you run a business in Sonoma County, Mendocino County or Lake County California with a piece-rate compensation system, it may be time for you to take a close look at whether your policies comply with the law. If you work as a truck driver in California and you have not been paid minimum wage for all of your work hours, you may wish to look into whether you have a case against your employer. [Read more…]

Filed Under: Blog, California Labor Law Tagged With: , , , , , , , ,

Am I An Independent Contractor Or Employee?

December 24, 2015 by

independent contractorA common complaint among workers in today’s economy is the eagerness of many employers to label them as an independent contractor. The Department of Labor has now issued a memorandum criticizing the overuse of the term “independent contractor” and clarifying what constitutes an employee under the Fair Labor Standards Act (FLSA).

Economic Realities of Independent Contractor vs. Employee

Courts apply an “economic realities” test to determine if a worker is an employee or an independent contractor. In most circumstances, the test asks the following questions:

  • To what extent is the worker’s output integral to the employer’s business?
  • Does the worker have an opportunity to make or lose money based on his or her managerial skill?
  • What are the relative investments of the employer and the worker? (If the worker has made an investment, this would indicate that he or she is an independent contractor.)
  • Does the work require special skills or initiative? (The Department of Labor cites electricians, carpenters, and construction workers as examples of the types of workers that typically operate as independent contractors.)
  • How permanent is the relationship between the employer and the worker? (If the work is permanent, that would suggest that the worker is an employee.)
  • How much control does the employer exercise (or retain)?

The Department of Labor’s memo emphasizes that the test should be viewed from the lens of the FLSA’s “suffer or permit” standard. This refers to a clause in the FLSA which states, “’Employ’ includes to suffer or permit to work.”

According to the memo, the “suffer or permit” standard means that a worker is an employee if he or she is dependent on the employer. The standard exists in order to broaden the FLSA’s applicability, by expanding the definition of an employer/employee relationship. The memo states that the economic realities test is not determinative, and that the most important factor in determining whether a worker is an employee is whether he or she is economically dependent on the employer.

Other clarifications offered in the memo include:

Even if an employer and worker have an agreement stating that the worker is an independent contractor, this agreement will have no bearing on whether the worker is actually considered an independent contractor or an employee.

Whether a worker receives a 1099-MISC from the IRS (which is intended for independent contractors) is not considered evidence that the worker is actually an independent contractor.

The economic realities test is qualitative, rather than quantitative, meaning that not all of the factors need to be present in order for the worker to be considered an employee. [Read more…]

Filed Under: California Employment Law Tagged With: , , ,

E Verify System Law Changes For California in 2016

December 21, 2015 by

e-verify systemIf you operate a California business, there is a good chance that you are familiar with the government’s E Verify system, which allows employers to determine whether their employees are legally permitted to work in the U.S. If your business has any federal contracts, you are probably very familiar with your legal obligations to use E-Verify.

What you may not be aware of, however, is that you soon will face penalties if you use E-Verify when you do not have a legal obligation to do so. New legislation, which will go into effect on January 1, 2016, makes it illegal for employers in California to use E-Verify voluntarily.

The Forthcoming Changes to E Verify System Law

Assembly Bill 622, which was signed into law in October by Governor Jerry Brown, amends the California Labor Code. It prohibits any employer from using E-Verify to check the legal eligibility of an employee or job applicant unless the employer is required to use the system because of a federal law, or a condition of receiving federal funds or the employer is authorized to use the system by a federal agency memorandum of understanding.

When using the E-Verify system, there is not always a definite answer given. The legislation contains regulations on what employers must do if federal records do not match the information that they entered into the system. An employer who receives a tentative non-confirmation (or TNC) from either the Department of Homeland Security or the Social Security Administration must comply with employee notification procedures and provide the employee in question with information about his or her case. The information must be provided “as soon as practicable.”

Violations can carry fines as high as $10,000. Each unauthorized use of the E-Verify system counts as a separate violation. The legislation leaves open the possibility of other penalties, as well.

Assembly member Roger Hernandez, who wrote the bill, has stated that his intention was to protect immigrant workers. According to Hernandez, immigrant workers are especially likely to receive tentative non-confirmations, even when they are legally eligible for employment.

The legislation comes four years after the Employment Acceleration Act was passed in California, which prevented municipalities from requiring employers to use employment verification systems such as E-Verify. Prior to the Employment Acceleration Act, many California municipalities had laws with such requirements, including San Bernardino County, and the cities of Riverside and Santa Maria. [Read more…]

Filed Under: California Employment Law Tagged With: , , , , ,

Does Former USC Coach Sarkisian Have A Discrimination Case

December 18, 2015 by

discrimination caseDoes former USC Football Coach Steve Sarkisian have a discrimination case? Steve Sarkisian was fired from his position as head coach of the University of Southern California (USC) football team in October, after incidents during which he allegedly appeared at events intoxicated. Sarkisian has now filed a wrongful termination suit against USC, alleging (among other claims) that the university discriminated against him on account of his alcoholism.

The circumstances of the firing are unclear. Sarkisian claims that he asked athletic director Pat Haden for time off to seek treatment for alcoholism, and in response Haden placed him on indefinite leave. According to Sarkisian’s complaint, he was then “kicked to the curb” less than a day later, when he was notified of his firing via email while he was traveling to a rehabilitation program.

However, USC issued a public statement in response to Sarkisian’s allegations that portrays the matter differently. According to USC, Sarkisian never acknowledged that he had a problem with alcohol and refused help when the university offered it. USC also claims that it provided Sarkisian with written notice that he would lose his job if there were further “incidents.”

Was Sarkisian’s Firing Justified or is a Discrimination Case a Possibility?

The discrimination case deals with some complex issues surrounding discrimination law. Under both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), alcoholism is a protected disability. It is illegal under both statutes to discriminate against an employee based on the stigma of alcoholism or based on past alcohol use. However, an employee is not protected when it comes to current alcohol abuse or misbehavior that arises from alcohol abuse.

Sarkisian’s complaint acknowledges that he “appeared” inebriated at a USC fundraising event called Salute to Troy and that he uttered an obscenity at the event. Sarkisian claims that he drank two beers and then took two prescription anxiety medications, and that his behavior stemmed from the mixture of the medication and the alcohol in his system. This event could prove to be crucial to the case. If the finder of fact determines that this constituted Sarkisian being intoxicated at work, then the incident could be seen as a justifiable reason for termination.

However, if the finder of fact determines that Sarkisian was fired for seeking treatment for alcoholism, then his termination could be seen as discriminatory. It is generally considered a violation of the ADA as well as FEHA to fire an employee under such circumstances. [Read more…]

Filed Under: Americans With Disabilities Act, Employment Discrimination, wrongful termination Tagged With: , , , , , , , ,

Can I Be Fired Because Of My Sexual Orientation?

December 8, 2015 by

Sexual Orientation Discrimination, Sexual OrientationThere is currently no federal law that prohibits private employers from discriminating on the basis of sexual orientation. Because of this, many people assume that it is no recourse for employees who experience this type of discrimination. This is not always the case, though. There are many jurisdictions – including the state of California – that have workplace anti-discrimination laws that extend to sexual orientation.

California’s anti-discrimination laws are among the broadest in the country. The California Fair Housing and Employment ACT (FEHA) prohibits employment discrimination based on sexual orientation, gender identity, and gender expression. (The statute also prohibits discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, age, or military and veteran status.)

An employee who believes that he or she has been the victim of one of the above forms of discrimination can file a complaint with the Department of Fair Employment and Housing up to one year after the alleged act of discrimination took place. The employee will only receive a Notice of Right to Sue after the claim has been pursued within the Department. Prior to receiving this notice, the employee does not have the right to file a private lawsuit.

What Employers Should Know About Sexual Orientation Discrimination

California’s anti-discrimination statutes go further than simply preventing employers from firing an employee based on his or her sexual orientation. It is also illegal to:

  • Refuse to hire a potential employee because of his or her sexual orientation
  • Refuse to promote an employee because of his or her sexual orientation
  • Create a hostile work environment for LGBT (lesbian, gay, bisexual, and/or transgender) employees
  • Deny employees benefits or privileges based on sexual orientation

When it comes to any type of anti-discrimination laws, there are some employers who believe that they can get away with discrimination by simply giving fake reasons for their actions. Let’s say, for example, there’s an employer who owns a large company in California. One day, he finds out that one of his employees is a lesbian. The employer isn’t happy about this, and he’d like to fire her, but he knows it’s illegal to fire an employee based on her sexual orientation. So instead, he waits for her to make a mistake. A few days later, the employee shows up to work ten minutes late, and the employer fires her – and tells her it’s because of her lateness.

The employer might think that he has nothing to worry about. After all, there’s no law against firing employees for being late to work. But the employer’s actions would still be a violation of California law, because the lateness was just a pretext for an illegal form of discrimination. If the employee files a complaint, and she is able demonstrate that her sexual orientation was most likely the real reason she was fired, she could recover damages.

Victims of Workplace Sexual Orientation Discrimination

If you suspect that your employer has discriminated against you on account of your sexual orientation, you may wish to seek the advice of a lawyer. If you want to know more about your rights and your options, you can contact an employment and labor law attorney at Beck Law P.C. today, and schedule a consultation.

Filed Under: Blog, Sexual Orientation Tagged With: , , , , , , ,

Employee Searches and Overtime Law – Employment Law

December 4, 2015 by

overtime law, employee searchesEmployee searches and overtime law. Imagine you work in a store that has had problems with employees stealing valuable merchandise. The store now has a policy that when an employee leaves at the end of a workday, any bags that he or she brought into the store will be searched. As such, after you punch out at the conclusion of each shift, you wait while a security guard goes through your bags.

When you were hired, you signed a contract allowing the store to search your bags. But you think it is unfair that you are not being paid for the time you spend waiting while the searches take place. Do you have a valid labor complaint?

According to the U.S. District Court for the Northern District of California, the answer is no. In Frlekin v. Apple, the Court recently dismissed a class-action suit filed by Apple employees who sued Apple for compensation for occasions when Apple searched their bags and verified ownership of their electronic devices. The employees argued that the time during which the searches took place should be considered “hours worked” under the standards of Wage Order 4.

Required Activities vs. Optional Activities

The Court sided with Apple and granted summary judgment, holding that the searches did not constitute hours worked. The court applied the traditional test of the control theory of liability, which takes into account whether the employer restrained the actions of an employee, and whether the employee has no plausible way to avoid the activity. The ruling states that while the plaintiffs demonstrated that Apple restrained their actions during the searches, the second prong of the test was not satisfied because the employees could avoid the searches if they did not bring bags into the stores where they worked, and thus the searches were optional.

The Court cited other cases such as Overton v. Walt Disney Co., in which employers were not required to pay for time spent by employees off the clock. Overton involved a Disney employee who sought compensation for time on a shuttle bus that carried him from an off-site parking lot to Disneyland’s employee entrance. The complaint was rejected because the worker had other options for getting to the employee entrance, such as walking from the parking lot, which was a mile away. The ruling rejected the employee’s argument that the shuttle bus was the only practical method of transportation.

In Frlekin, the Court also pointed out that none of the plaintiffs argued that they brought bags to work based on special needs – even though the class notice invited members with special needs to assert such a claim. The Court held that the plaintiffs were all in a position to freely choose to not bring bags to work.

Overtime Law and Wage and Hour Claims

If you are facing any type of wage and hour claim, or you are considering filing one, the employment and labor law attorneys at Beck Law P.C. in Santa Rosa can help. They serve clients in Santa Rosa, Petaluma, Ukiah, and all of the North Bay Area counties.

Filed Under: Blog, Overtime Violations Tagged With: , , , , , , ,

Americans with Disabilities Act and Cancer

December 1, 2015 by

americans with disabilities actMany people think of the Americans with Disabilities Act (ADA) as protecting people with permanent disabilities. But the legislation also protects people with conditions, such as cancer, that may be temporary. The Equal Employment Opportunity Commission (EEOC) has clarified that cancer is covered by the Americans With Disabilities Act, and has released a document providing guidance to employers regarding the rights of employees with cancer.

The document clarifies that individuals with cancer “should easily be found” to be disabled, according to the ADA’s requirement that an individual be substantially limited in a major life activity or normal cell growth. It also clarifies that individuals who once had cancer and are now in remission should also easily be found to have a disability under the Americans With Disabilities Act, as they would be substantially limited in a major life activity or normal cell growth if they had a recurrence of cancer.

What an Employer May and May Not Say to an Employee with Cancer

The document details the types of questions an employer may ask an employee or job applicant regarding cancer:

  • An employer may not ask a job applicant if he or she has cancer, or if he or she has ever had cancer, or if he or she is undergoing any type of cancer treatment.
  • If a job applicant volunteers that he or she has cancer, or that he or she once had cancer, an employer generally may not ask follow-up questions about the cancer – unless the employer reasonably believes that the applicant will need accommodations due to the cancer.
  • If a job applicant has received a conditional job offer, and then the employer learns that the applicant has or had cancer, then the employer may ask the applicant additional questions.
  • An employer may ask an employee with cancer questions about his or her condition, if the employer reasonably believes that the employee will be unable to perform his or her job functions safely.

Accommodations

The EEOC has also addressed the issue of accommodations for employees with cancer. An employee with cancer can request an accommodation merely by explaining that they require it because of their cancer. In addition, another person can request the accommodation on their behalf.

However, an employer does not necessarily need to grant all requests for accommodation. An employer can turn down a request for accommodation if it is unreasonable. An employer may also turn down a request for a reasonable accommodation if it would cause undue hardship for the employer. (In addition, an employer who receives a request for accommodation has the right to ask for medical documentation.) [Read more…]

Filed Under: Americans With Disabilities Act, Blog Tagged With: , , ,

EEOC Age Discrimination Lawsuit Filed against Milpitas

November 26, 2015 by

age discrimination lawsuitA Federal age discrimination lawsuit has been filed against the City of Milpitas. Why? Well, many employers make hiring decisions using a points system in which points are assigned to applicants based on their attributes, such as experience and education. Using a system like this can be helpful, not only when it comes to making the best decisions, but also in defending their hiring choices if there is an accusation of discrimination.

However, the use of such a system can present a major problem for an employer when a discrimination complaint is filed – if the applicant chosen wasn’t the one who received the most points.

Officials in the city of Milpitas, California – located between San Jose and Fremont – chose to hire a candidate for an administrative position even though four older candidates had higher scores. The city is now facing a federal age discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC).

The Milpitas Age Discrimination Lawsuit

The lawsuit alleges that the city violated the Age Discrimination in Employment Act (ADEA) in 2013 when it hired Rachel Currie, who was then 39 years old, as executive secretary to the city manager. A review panel had ranked the applicants for the position according to a 100-point scale. The panel gave Currie a score of 82.33. Four other women who had applied for the position, who were between the ages of 42 and 58, had received higher scores. (According to the San Jose Mercury News, an additional applicant named Lori Casagrande was also turned down for the position, but she is not part of the EEOC’s lawsuit, as she is seeking a private lawsuit against the city.)

The ADEA is a federal law prohibiting age discrimination against employees who are 40 years of age or older. The EEOC found in 2014 that there was reasonable cause to believe that Casagrande and the four women named in the lawsuit were all victims of age discrimination in violation of the ADEA. After issuing the finding, an attempt at conciliation failed, with the parties unable to agree to a settlement, which led the EEOC to sue the city in the District Court for the Northern District of California.

The EEOC is seeking damages for the applicants, as well as injunctive relief seeking a change in the city’s hiring practices. According to William Tamayo, the Director of the EEOC’s San Francisco District, the front and back pay for the four defendants is about $200,000.

Avoiding the High Costs of Litigation

23% of the claims filed with the EEOC in 2014 were age discrimination complaints. The costs of defending these suits can be tremendous, and yet many businesses do not have policies in place to deal with the issue of age discrimination.  [Read more…]

Filed Under: Age Discrimination, Blog Tagged With: , , , , , , , , , , ,

CA Appeals Court Arbitration Waiver Ruling

November 25, 2015 by

arbitration waiverMario Garrido signed and arbitration waiver when he was hired as a truck driver for American Air Liquide, Inc. in Santa Fe Springs, California. The arbitration waiver required him to resolve any disputes with his employer via arbitration and included a provision prohibiting class arbitration.

After Garrido lost his job, however, he filed a class action complaint against Air Liquide, alleging that he and his co-workers were subjected to a variety of unfair labor practices. Air Liquide responded by filing a motion to compel arbitration, but the trial court denied the motion, holding that Garrido had a right to file a class action claim. Air Liquide appealed.

On October 26, 2015, a California Court of Appeal upheld the decision, siding with Garrido. The ruling, Garrido v. Air Liquide Industrial U.S. LP, established several important precedents for cases involving arbitration waivers in the following areas:

To Whom Does the Federal Arbitration Act Apply?

The arbitration agreement that Garrido signed when he began working for Air Liquide stated that it was governed by the Federal Arbitration Act (FAA). Garrido argued that this provision was invalid because the FAA itself states that it does not apply to transportation workers. Air Liquide argued that Garrido should not be considered a transportation worker because Air Liquide is not in the transportation industry.

The Court of Appeal agreed with Garrido and held that as a truck driver, he was excluded from the FAA. The ruling states that a truck driver is a transportation worker, regardless of who owns the goods that the driver transports.

Can the CAA Apply Automatically?

The California Arbitration Act (CAA) was not mentioned in the arbitration waiver. Garrido argued that, in light of this, it could not apply to his case, but the court disagreed. The ruling holds that the CAA can be enforced even when it has not been explicitly mentioned in an arbitration agreement.

Garrido argued that because Air Liquide’s motion to compel arbitration dealt with the FAA, and not the CAA, Air Liquide lost its right to compel arbitration under state law. The court disagreed with this, as well, pointing out that Air Liquide had never argued that the CAA would not apply.

Can the State Refuse to Enforce a Class Arbitration Waiver in a Non-FAA Case?

Garrido argued that, even though the arbitration agreement contained a class waiver, his class action suit should nonetheless be allowed to proceed. While the California Supreme Court recently held the FAA prevents the state from striking down class waivers for public policy reasons, that decision did not address whether it would be appropriate in a CAA case.

The Court of Appeal used the four-factor test applied in Gentry v. Superior Court, which is based on:

  • The size of potential individual recovery,
  • The potential for retaliation against class members,
  • Whether absent members of the class may be unaware of their rights, and
  • Obstacles to the use of individual arbitration.

After applying the test, the Court of Appeal agreed with the trial court that a class proceeding would be more effective than individual arbitration. [Read more…]

Filed Under: Binding Arbitration, Blog, California Employment Law Tagged With: , , , , , , , , ,
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