Misclassification Wage and Hour

News & Analysis as of

Labor Commissioner Finds Uber Driver To Be Employee, Not Independent Contractor

On June 3, 2015, the California Labor Commissioner determined that an Uber driver, Barbara Ann Berwick, was considered an employee of Uber, not an independent contractor. As such, she was entitled to reimbursement in the...more

“Black Swan” Internship Case Creates New Obstacles For Employers In California

In California, internships have always been viewed as a trade-off between prestigious employers and young students looking to get a foot in the proverbial door. College students and graduates looking for highly-coveted...more

Independent Contractor Misclassification: The Hidden Trap of Outsourcing

It’s a beguiling option. Companies that classify workers as independent contractors receive a number of benefits, including elimination of payroll taxes, workers’ compensation insurance, and unemployment insurance...more

Employment Law - June 2015 #2

Joint Employers Can Be Liable for Employee Misclassification in California: Why it matters - Liability under the California Labor Code extends to joint employers that are aware of a willful misclassification of an...more

Federal Guidance on Independent Contractors on Its Way This Summer

Recently, Wage and Hour Division (WHD) Administrator David Weil announced that the DOL would issue an “administrator interpretation” letter early this summer on how an employer can best address whether an individual qualifies...more

Uber Drivers as “Independent Contractors” – Maybe Not!

Employers face a variety of challenges when relying on “independent contractors.” Typically these disputes involve wages and/or hours worked or alleged entitlement to benefits. A recent case against Uber, however, brought a...more

Fenwick Employment Brief - June 2015

Employer’s Motive, Not Confirmed Knowledge Of Accommodation Need, Is Basis Of Religious Accommodation Violation - Federal anti-discrimination laws (“Title VII”) prohibit an employer from refusing to hire a candidate to...more

That is SO last week - June 2015

Last week, Uber suffered a setback in one of the many driver-initiated lawsuits it’s defending. A federal judge in California ruled that the popular ride-sharing app cannot compel arbitration of claims by drivers relating to...more

California Labor Commission Rules Uber Driver is an Employee

The debate over whether Uber drivers should be classified as employees or independent contractors is ongoing, with multiple court cases vying to determine how the classification works going forward. Yet, the California Labor...more

Uber Suffers Another Independent Contractor Misclassification Setback in California

Uber has not fared well in court battles recently. After losing an unemployment case last month in Florida, it has now just lost an independent contractor misclassification wage case in California. This loss in California...more

FedEx to Pay $228 Million in Independent Contractor Misclassification Settlement

Things that $228 Million will buy: – LeBron James’s waterfront mansion in Miami, listed for $15 million – A 710-year old copy of the Magna Carta, sold in 2007 for $21.3 million – The Oakland A’s, sold in 2005 for $180...more

DOL To Issue Independent Contractor Guidance

According to an Article in Law360, on June 5, 2015, David Weil, Administrator of the Department of Labor’s Wage and Hour Division, stated that his Office is preparing to release guidance addressing how to assess whether a...more

$228 Million: The Cost of Independent Contractor Misclassification for FedEx Ground in California

Yesterday, June 12, FedEx announced in papers filed with the SEC that its Ground Division “has reached an agreement in principle with [drivers] in the independent contractor litigation that is pending in …California [federal...more

California Court Rejects Alleged Joint Employers' "It Wasn't Me" Defense to Worker Misclassification Claims

Notwithstanding—and perhaps because of—the emergence of the so-called "sharing economy" and its proliferation of disruptive new business models, as well as calls to re-examine the traditional and familiar employee versus...more

New Independent Contractor Misclassification Study Is Belied By Government Report and Disregards the Legitimate Use of Independent...

The Economic Policy Institute, a respected nonprofit, nonpartisan think tank, has just released a working paper authored by a respected professor who co-authored a number of early academic studies detailing independent...more

Court Issues Cautionary Edict to Users of Misclassified Workers

On June 1, 2015, the California Court of Appeal (Second Appellate District) in Noe v. Superior Court of Los Angeles (Levy) (Case No. B259570) extended the scope of liability under California Labor Code section 226.8....more

Lawsuits Challenge Classification of Uber Drivers as Independent Contractors

Uber is unquestionably a very hot commercial brand. Through the use of an app on a mobile phone or smart device, consumers can schedule a driver to pick them up and transport them to a destination. Unlike a traditional taxi...more

Two Good Reasons to Keep Your Company's Job Descriptions Current and Accurate

Job descriptions often fall to the bottom of the human resource “to do” list. An audit of almost any company’s job descriptions will reveal job descriptions that are outdated, vague and carried forward from the company’s...more

Moving Exempt Employees to Non-Exempt Status [Wage & Hour FAQs]

We discuss the misclassification of non-exempt employees regularly here on the blog and in our presentations at conferences and webinars, but a reader of the blog wrote me before the holiday weekend to ask about the reverse...more

New GAO Report on Contingent Workforce Shows 85% of Independent Contractors Are “Content with Their Employment Type”

A comprehensive government report on the contingent workforce made public two days ago revealed surprising data about independent contractors, finding that 85% of independent contractors “appeared content with their...more

Third Circuit Upholds the Motor Carrier Exemption for Drivers Who Did Not, But Reasonably Could Have Been Expected to, Cross State...

Are drivers of a motor carrier who rarely or never drive the carrier's interstate routes covered by the motor carrier exemption of the Fair Labor Standards Act?  Yes, according to the U.S. Court of Appeals for the Third...more

Wage-Hour Audits: Lessons Learned From Chipotle’s Heartburn

Beloved burrito-maker Chipotle Mexican Grill has found itself in a situation messier than the finger foods that brought the company more than $4 billion in revenue last year. A magistrate judge in Scott v. Chipotle Mexican...more

Avon Calling: Employees Allege Overtime Exemption Misclassification

Avon categorizes all of its district service managers (DSMs) under the “administrative” exception of California law that requires employers to pay overtime wages. DSMs are the Avon employees who recruit and train the...more

Employee Misclassification in the Entertainment Industry

Employee misclassification is one of the leading labor abuses in the country. In fact, in recent years, both the Internal Revenue Service and the U.S. Department of Labor have launched a misclassification initiative to combat...more

Multi-Agency Investigation Successfully Targets Arizona and Utah Construction Companies’ Misclassification of Employees

Sixteen Arizona and Utah companies accused of misclassifying more than 1,000 construction workers agreed to pay $700,000 in back wages and penalties after a multi-year, multi-agency investigation led to consent judgments,...more

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