August and September 2019 Independent Contractor Misclassification and Compliance News Update

Locke Lord LLP
Contact

There were several notable court and administrative cases over the past two months, but they were overshadowed by a legislative matter: the enactment of Assembly Bill 5 in California, which was the subject of our September 11, 2019 blog post entitled “How to Operate in California with Independent Contractors After AB5 Bill Is Signed Into Law.” That bill, which seems to have been prompted by the California legislature’s desire to reclassify drivers in that state from independent contractors to employees, was enacted with exemptions for over 50 types of workers in an array of industries.

Those exempted will not be subjected to an ultra-strict test for IC status but rather to a more the even-handed test comparable to the standard for IC status in most states and under a variety of federal laws. The California legislature, operating under time constraints so that the bill could become effective on January 1, 2020, rushed through the legislative process and, in so doing, ended up with statutory language that is ambiguous and inconsistent.  The bill also left many other types of workers that were not exempted – yet have for years operated productively as ICs, as well as the businesses that contracted with such workers – wondering why they were not also carved out from the new test and, all of the sudden, have to meet a higher standard to maintain IC status.  At best, they are left to hope that in the next legislative session they will be recognized as warranting an exemption as well.

In the meantime, more and more businesses are seeking to elevate their level of IC compliance both in California and across the country.  Many are using  a process such as IC Diagnostics™, which maximizes compliance with IC laws by restructuring, re-documenting, and re-implementing IC relationships in a customized and sustainable manner consistent with existing business models.

While AB5 dominated the news the past two months, companies in the pharmaceutical and commercial cleaning industries were paying millions of dollars to settle IC misclassification cases, while an adult entertainment business was exhausting its appeals of a multi-million jury verdict for misclassifying exotic dancers. Companies in the fashion and transportation industries appear headed for trial in IC misclassification cases, unless they settle their cases. Companies in the ride-sharing and travel industries, though, successfully obtained orders compelling workers who had brought class actions to arbitrate their cases on an individual basis instead of proceeding in court.

We also report on a major NLRB decision that was the focus of one of our blog posts in September. That federal agency narrowed the law and the remedies for IC misclassification, even though it concluded that a courier company had misclassified delivery drivers as ICs.

In the Courts (9 cases)

PHARMA WHOLESALERS TO PAY $7.5 MILLION TO SETTLE INDEPENDENT CONTRACTOR MISCLASSIFICATION CLAIMS BY DRIVERS.  Two pharmaceutical wholesale distributors, Kinray Inc. and Cardinal Health Inc., have reached a $7.5 million settlement with 115 delivery drivers in a proposed collective and class action lawsuit filed in New York federal court alleging wage and hour violations under the FLSA and New York Labor Law  due to misclassification as ICs, not employees.  The wholesalers supply generic and brand name prescription drugs as well as home health products to independent retail pharmacies and engage the drivers to deliver such goods.

The drivers alleged they consistently worked over 40 hours, and sometimes as much as 80 hours weekly without overtime compensation. In support of their argument that they were employees and not ICs, the drivers claimed that they were subject to credit and background checks; required to report to company warehouses at precise times; mandated  to follow delivery routes and manifests  specifying the identity, location, time and sequence of each stop; subject to discipline for tardiness; and prohibited from dealing directly with the companies’ customers. The settlement, if approved by the court, means that the average recovery per driver, before legal fees and costs, will exceed $65,000. Fernandez v. Kinray Inc., No. 1:13-cv-04938 (E.D.N.Y. Aug. 13, 2019).

PENNSYLVANIA CLEANING FRANCHISOR TO PAY $3.7 MILLION TO FRANCHISEES TO SETTLE IC MISCLASSIFICATION CLAIM. A Pennsylvania federal district court granted final approval of $3.7 million settlement between cleaning franchisor and franchisees in an independent contractor misclassification class action. As we reported in our blog post of June 10, 2019, the settlement involves Jani-King, Inc., the world’s largest commercial cleaning franchisor. Of the 265 class members who received notice of the settlement agreement, about 109 filed claims to date. Under the terms of the settlement, the franchisees will recover $2.4 million with the average individual payout of about $11,000; $1.25 million is earmarked for attorneys’ fees and costs; and $30,000 is designated for service awards to the named plaintiffs.

The plaintiffs alleged that by misclassifying the cleaning franchisees as independent contractors, Jani-King violated the Pennsylvania Wage Payment and Collection Law when it took improper deductions from their payments for services. According to the franchisees’ complaint, Jani-King solely determined whether the franchisees would be offered work and the nature, scope, frequency, and value of the work to be performed for each client; the cleaning methods and procedures to be used; and the training franchisees would receive. In reaching its settlement, Jani-King agreed to make changes to its business practices, including providing new franchise agreements to class member franchisees wishing to continue doing business with the company. The new agreement eliminates various elements of alleged control: no longer will there be post-termination non-competition agreements; the non-solicitation period regarding Jani-King accounts will be reduced to 12 months; and franchisees may sign new business without paying finder’s fees to Jani-King. Myers v. Jani-King of Philadelphia, Inc., No. 09-1738 (E.D. Pa. Aug. 26, 2019).

$4.6 MILLION JURY VERDICT FOR IC MISCLASSIFICATION UPHELD ON APPEAL AGAINST ADULT ENTERTAINMENT CLUB.  The United States Court of Appeals for the Third Circuit affirmed a $4.59 million jury verdict in favor of a class of exotic dancers who prevailed at trial in an IC misclassification class action.  A federal district court judge had approved the jury’s verdict against 3001 Castor Inc. d/b/a The Penthouse Club of Philadelphia. As we discussed in our blog posts of December 6, 2016 and April 9, 2018, the lawsuit alleged nationwide collective claims under the FLSA to recover unpaid wages, as well as state wage/hour claims due to misclassification as independent contractors.

The jury reportedly found that by obligating the dancers to pay certain fees for shifts worked, the Club violated federal and state wage and hour laws and owed the dancers over $4 million in unpaid wages.  In sustaining the jury’s verdict, the Third Circuit determined that the Club exerted “overwhelming control” over the performance of the dancers, including establishing shift times, checking attendance and assessing late fines, instructing the dancers regarding their physical appearance, dictating the choice of dress and makeup, choosing the music played while the dancers performed, and setting the price/duration of private dances. Verma v. 3001 Castor Inc d/b/a The Penthouse Club, No. 18-2462 (3d Cir. Aug. 30, 2019). This case is an example of what adult clubs should refrain from doing.  Indeed, there are also steps that entertainment emporiums can follow to enhance their IC compliance. As the title of our February 8, 2015 blog post states: “Even an Exotic Dance Club (a.k.a. Strip Joint) Can Comply with Independent Contractor Laws – And Avoid or Defend Against Class Actions.”

APPEALS COURT VACATES DECISION DISMISSING IC MISCLASSIFICATION LAWSUIT BY FIT MODELS, ALLOWING THEIR CLASS ACTION TO PROCEED TO TRIAL. The U.S. Court of Appeals for the Second Circuit has vacated a federal district court’s decision that granted summary judgment in favor of a modeling company in a class and collective action brought by fit models.  The appellate court held that summary judgment was not appropriate because there are material issues of fact in dispute as to the fit model’s classification as an independent contractor.  The plaintiff brought her complaint on behalf of herself and other fit models who are retained based on body proportions so that clothing designers and apparel companies may test the fit of their designs.  She alleges that by misclassifying models as ICs, the modeling service, Model Service LLC d/b/a/ MSA Models, and its owner denied them overtime and minimum wages and made deductions from their wages in violation of the FLSA and New York Labor Law (NYLL).

In 2018, the district court granted the company’s motion for summary judgment on the issue of whether plaintiff was the company’s employee for purposes of the FLSA and NYLL. On appeal, the Second Circuit concluded that “[w]hen drawing inferences in the light most favorable to [Plaintiff], which the district court did not do, a reasonable jury could have concluded that she was [the company’s] employee.” The appeals court also determined that although no one element of the parties’ relationship was dispositive of the FLSA inquiry, there existed genuine disputes regarding control of the plaintiff’s work schedule, whether she had the ability to negotiate her pay rate, and her ability to accept or decline work. Those disputed factors were viewed as “significant” by the appellate court to the extent they relate to the degree of control exerted by the company over the plaintiff and her opportunity for profit – two of the factors considered by the courts when assessing IC/employee status under the FLSA’s economic reality test. The court also stated that it was premature to resolve the question whether plaintiff was an employee under the NYLL. The case, which we first reported on in a July 5, 2015 blog post, was remanded for trial on the misclassification claims.  Agerbrink v. Model Service LLC d/b/a MSA Models, No. 18-1471 (2d Cir. Sept. 24, 2019).

DRIVERS FOR COURIER SERVICE ARE NOT ENTITLED TO SUMMARY JUDGMENT IN MASSACHUSETTS IC MISCLASSIFICATION CLASS ACTION.  A Massachusetts federal district court has denied a motion for summary judgment by a driver making deliveries for Google Express through transportation logistics company, Dynamex Operations East, LLC in a proposed IC misclassification class action.  However, the court did certify a class of approximately 100 drivers. In the court complaint, the driver alleges individual, class, and collective claims on behalf of himself and other drivers under the FLSA and the Massachusetts wage and hour laws due to the alleged misclassification of the drivers as independent contractors. Dynamex contracted with Google Express to provide drivers to perform same-day delivery services allowing customers to place orders online from retailers like Target, Walgreens, and Staples. The drivers contracted directly with another company that Dynamex used to supply drivers for Google Express deliveries, and were paid as independent contractors by the other company.

In ruling on the driver’s summary judgment motion, the court applied the Massachusetts three-prong ABC test.  It concluded that under Prong A, the court “does not find as a matter of law that Dynamex exercised actual control over the…drivers.” There was no discussion of Prong B inasmuch as the First Circuit has held that Prong B is pre-empted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA) when applied to entities such as Dynamex that arrange for product deliveries. The court did not consider Prong C. In denying summary judgment, the Court found many contradictions between the documentary evidence and deposition testimony of the parties related to recruitment, equipment, deductions from pay, ability to terminate the relationship, assignment of shifts, and communication with the drivers, all of which, the court said, would have to be resolved at trial.   Ouadani v. Dynamex Operations East Inc., No. 1:16-cv-12036 (D. Mass. Sept. 13, 2019).

TRAVEL CONSULTANTS MUST ARBITRATE THEIR IC MISCLASSIFICATION CLAIMS.  A federal district court in Washington state has granted the motion to compel arbitration filed by an online travel management company in a proposed collective action brought on behalf of travel consultants.  The consultants provide customer communications services for clients of Expedia Group, Inc. and Egenia, LLC.  Those two companies together ‎operate an online travel management company. The plaintiff and the companies never entered directly into either an employment or independent contractor agreement. Egenia contracts with another company, WSOL LLC, which provides telephone, email, and call center and business processing support. WSOL contracted with the plaintiff to provide customer assistance to travelers via chat, email, and phone.

The operative issue involved the plaintiff’s independent contractor agreement with WSOL that included specific references to her relationship with Egenia as well as a broad arbitration provision, a clause delegating authority to the arbitrator to make certain determinations, and a class action waiver. The complaint alleged that Expedia violated the Fair Labor Standards Act by failing to pay the travel consultants overtime compensation due to their alleged misclassification as independent contractors. In opposition to Expedia’s motion to compel arbitration, the plaintiff argued among other things that, even if a valid arbitration clause existed, Expedia and Egenia may not enforce it as non-signatories to the Agreement.  The court was not persuaded; it held that Expedia and Egenia were third-party beneficiaries to the independent contractor agreement’s arbitration provision and were therefore able to compel arbitration based on the arbitration clause contained in plaintiff’s agreement with WSOL.  Krause v. Expedia Group., Inc., No. 2:19-cv-00123 (W. D. Wash. Sept. 17, 2019).

RIDE-SHARING COMPANY SUCCEEDS IN COMPELLING ARBITATION OF WARN ACT CLASS ACTION.  A former driver providing transportation services to customers of Uber Technologies may not litigate in court his proposed class action claims under the Worker Adjustment and Retraining Notification Act. The driver alleged that the company violated the WARN Act when it ceased operations in Austin, Texas without providing WARN Act notice to drivers at least 60 days in advance of the closing. According to the complaint, in May 2016, after losing a public referendum to repeal an ordinance requiring transportation network companies like Uber to make changes in their manner of operation, Uber chose to terminate immediately its business operations in Austin. The driver contended that he and the other potential class members are employees of Uber who were entitled to WARN notice as “affected employees;” if they were independent contractors, however, the WARN Act would not apply.

Uber filed a motion to compel individual arbitration of the driver’s claims. With the parties in agreement that the driver had signed Uber’s arbitration agreement and did not opt-out, the “key disagreement pertains to whether the Court should enforce the Arbitration Agreement and order Plaintiff to individually arbitrate his claims or find the class action waiver in the Arbitration Agreement unenforceable because it conflicts with the WARN Act.” At a hearing on the issue, both parties agreed that it would be inappropriate for the Court to decide the issue whether the driver was an IC or an employee given that the arbitration provision clearly and unmistakably provided that the arbitrator must decide all disputes including the enforceability, revocability, or validity of the arbitration provision. The court concluded: “If the arbitrator determines that Plaintiff is properly classified as an Uber employee – such that Plaintiff would qualify for the protections of the WARN Act – the arbitrator must send the case back to this Court for a determination whether the Class Action Waiver is valid in light of the WARN Act. If the arbitrator determines that Plaintiff is properly classified as an independent contractor, the arbitrator may retain jurisdiction over the rest of the case since the WARN Act would not impede arbitration under that circumstance.” Johnston v. Uber Technologies, Inc., No. 16-cv-03134 (N. D. Cal. Sept. 16, 2019).

TRUCKING COMPANY FACES CLASS ACTION LAWSUIT BY DRIVERS ALLEGING OVERREACHING IN CONNECTION WITH THEIR IC MISCLASSIFICATION CLAIM.  A group of Illinois trucking companies face a new proposed class action lawsuit by drivers, most of whom are recent immigrants, claiming wage and hour violations of the Illinois Wage Payment and Collection Act and common law fraudulent inducement, misrepresentation and concealment due to their alleged misclassification as ICs and not employees. According to the class action complaint, the companies, Patriot Transport Inc. and Expeditor Systems Inc., “implemented their exploitative scheme in full knowledge that most of the truck drivers they hired would take the job offered, not complain about underpayment of wages, and not seek any recourse in court or otherwise with government authorities.”

The complaint further alleges that the drivers “had low English language proficiency and lacked legal sophistication,” and the companies required them to comply with instructions dictated by written and unwritten policies, procedures and directives regarding the drivers’ duties; imposed supervision; mandated  certain insurance;  required advance notice of intended time off; prohibited the drivers from having their own customers; ordered them to use company vehicles with company branding; and prohibited them from negotiating any matters or bargains with customers or brokers. Tlenchiyev v. Patriot Transport, Inc., No. 2019CH09186 (Cir. Ct. Cook County, IL Aug. 8, 2019).

RIDE-SHARING COMPANY SUED IN MASSACHUSETTS FOR IC MISCLASSIFICATION. Drivers for San Francisco-based on-demand ride-sharing company, Lyft, Inc., have filed a class action complaint in Massachusetts federal court alleging that Lyft violated the state’s wage and hour laws by requiring the drivers to pay business expenses, failing to pay them at least a minimum wage, and failing to pay overtime premiums  for hours worked in excess of forty per week due to their alleged misclassification as independent contractors. According to the complaint, among other things, Lyft allegedly requires drivers to follow its policies and rules that, they claim, controls the drivers’ work performance; retains the right to terminate drivers at any time in its discretion; assigns particular rides to drivers; does not require drivers to possess any advanced skills; sets the rate of pay for drivers, which it can change it at its sole discretion; monitors drivers’ performance; and may suspend or terminate drivers who do not accept enough rides, cancel too many rides, do not maintain high customer satisfaction ratings, or do not take the most efficient routes.  It is anticipated that the company will make a motion to compel arbitration and vigorously defend the claims. Cunningham v. Lyft, Inc., No. 1:19-cv-11974 (D. Mass. Sept. 17, 2019).

Administrative and Regulatory Actions (1 case)

NLRB FINDS COURIERS WERE MISCLASSIFIED AS INDEPENDENT CONTRACTORS, BUT REJECTS ARGUMENT THAT MISCLASSIFICATION IS A “STAND-ALONE” VIOLATION OF THE LAW.  As we discussed in detail in our blog post of August 29, 2019, the National Labor Relations Board has held that a courier services company misclassified drivers as independent contractors, not employees protected under the National Labor Relations Act.  The Board also ruled the company violated the NLRA when it terminated its relationship with one of the couriers because of her activities raising group complaints about the company’s classification of drivers. With one member dissenting, the NLRB refused to conclude, however, that the company’s act of misclassifying the couriers as ICs was, standing alone, a violation of the NLRA.  It also rejected the argument that it should issue an order mandating that the courier company reclassify its drivers as employees and notify them that they are not ICs.  As we noted in our blog post, the Board’s decision on the “stand-alone” issue was dictated by the “free-speech” provisions of the NLRA as well as public policy considerations. Velox Express, Inc., 368 NLRB No. 61 (Aug. 29, 2019).

Legislative Developments (2 new laws)

CALIFORNIA AB5 ENACTED WITH OVER FIFTY EXEMPTIONS; MORE CLARIFICATIONS EXPECTED.  Assembly Bill 5 (AB5), which codifies the California Supreme Court’s Dynamex decision that was issued in April 2018, was signed into law by California Governor Gavin Newsom on September 18, 2019 and becomes effective January 1, 2020.  As we discussed in our detailed September 11, 2019 blog post entitled “How to Operate in California with Independent Contractors After AB5 Bill Is Signed Into Law,” Dynamex created a so-called ABC test requiring companies to satisfy each of three strict criteria in order to establish independent contractor status, dramatically changing decades of settled law in California.  Prior to Dynamex, IC status was determined in that state by applying a multi-part test issued 30 years earlier by the California Supreme Court in the Borello case, which weighed and balanced a number of factors.  Essentially, Dynamex instantly turned tens of thousands of businesses in scores of industries that were operated for years in compliance with settled law into companies that, overnight, might well be operating outside of the law.

Prior to the AB5 legislative initiative, all businesses in California were covered by the Dynamex decision for so-called “wage order” claims.  However, Dynamex did not cover “non-wage order” claims, such as causes of action for overtime and reimbursement of expenses. Although AB5 began as a legislative effort to codify Dynamex for both wage order and non-wage order claims (as well as claims under the unemployment and disability benefits laws in California), it became a lobbying exercise whereby over 50 industries and types of businesses have been exempted from the ABC test in Dynamex. For those companies fortunate enough to have been carved out of the harsh ABC test, AB5 statutorily re-establishes the multi-factor test in Borello for both wage and non-wage claims. Some of the businesses carved out of AB5 are: licensed insurance agents; certain professionals (physicians and surgeons, dentists, podiatrists, psychologists, veterinarians, lawyers, architects, engineers, and accountants); referral agencies connecting clients with service providers  in the following industries that meet all of 10 specific ‎requirements: graphic design, photography, tutoring, event planning, ‎minor home repair, moving, home cleaning, errands, furniture assembly, animal services, dog ‎walking, dog grooming, web design, picture hanging, pool cleaning, and yard cleanup; and certain professional service providers in the following occupations that meet all of six specific requirements: marketing contractors, human resources administrators, travel agents, graphic designers, grant writers, fine artists, enrolled tax agents, payment processing agents, still photographers, photojournalists, freelance writers, publication editors, and newspaper cartoonists.

An exemption from AB5 is not a “get-out-of-jail-free” card; those businesses carved out from the Dynamex ABC test still must abide by the multi-factor Borello test.  Many businesses in industries that obtained a carve-out will still be governed by the ABC test (and not Borello) if they are unable to satisfy any of up to a dozen specific requirements.  The publisher of this blog was quoted in Law360 on September 11, 2019 stating, “There are probably 150 industries that lobbied, and 50 were successful,” and those industries that failed this go-round will likely make another attempt in a “cleanup bill” in the 2020 legislative session, which could yield more exemptions and clarify other exemptions that were added in haste after legislative hearings had concluded.

NEW YORK CITY BROADLY EXPANDS HUMAN RIGHTS LAW TO INDEPENDENT CONTRACTORS.  On September 12, 2019, the New York City Council passed a bill (Intro No. 136-A) by a vote of 47-3‎ ‎expanding the New York City Human Rights Law’s anti-discrimination protections to independent contractors and freelancers. The bill, sponsored by Councilman Brad Lander, is due to take effect in December 2019 after the Mayor signs it into law, as is expected shortly.  This additional protection for independent contractors and freelancers follows other enactments that have expanded safeguards for ICs, such as the 2017 Freelance Isn’t Free Act. Councilman Lander said, “Closing the loophole that left independent contractors without sufficient recourse for ‎discrimination or harassment builds on the Council’s ambitious work to win protections for gig-‎economy workers.” Likewise, Caitlin Pearce, Executive Director of the Freelancers Union, reportedly posted, “This is huge news for NYC’s 1.3 million independent workers, who may face harassment and discrimination in the workplace with fewer protections or paths for recourse than traditional employees.” Regarding the expansion of protections to ICs and freelancers, the publisher of this blog was quoted in Bloomberg Law’s September 12, 2019 Daily Labor Report as follows: “The Council bill, by ensuring that freelancers shouldn’t be subject to discrimination by a company that utilizes them to further its business, is consistent with a growing trend in the city and the state to give additional protections to freelancers and independent contractors.” But, finding the bill “overbroad,” this blog’s publisher said: “It goes beyond only a company’s decisions to retain or let go an independent contractor, and encompasses everything in between: their compensation, promotion, benefits, and other terms and conditions or privileges of employment.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Locke Lord LLP | Attorney Advertising

Written by:

Locke Lord LLP
Contact
more
less

Locke Lord LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.