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MARIJUANA LAWS

FROM BLOOMBERG NEWS, 22 MARCH 2016

March 14 — With a growing number of states having decriminalized marijuana, employers face some uncertainty on how to deal with the drug, attorney R. Scott Oswald, managing principal at the Employment Law Group, said March 14.

Speaking at the Society for Human Resource Management 2016 Employment Law & Legislative Conference in Washington, Oswald said an employer’s approach depends on many factors.

“All over the country we have different laws that are applying at the state level, and for a multi-state employer it is enormously challenging,” he said. While the national conversation may be moving toward an increase in legalization of marijuana, he said, federal law still prohibits it.

According to Oswald, the bottom line in the workplace is that employers can continue to terminate employees for failing a drug test. In states where marijuana use is legal, he said, “decriminalization is a defense to criminal prosecution and not an affirmative right to use.”

Considerations Under the ADA

Employers also will likely need to address whether they are willing to consider medical marijuana as a reasonable accommodation under the Americans with Disabilities Act, Oswald told conference attendees.

There are several medical conditions that are ameliorated or treatable with marijuana and qualify as disabilities under the ADA, he said. For example, he said, marijuana has proven effective for treating muscle spasms caused by multiple sclerosis; nausea from cancer chemotherapy; poor appetite and weight loss caused by chronic illness, such as HIV or nerve pain; seizure disorders; and Crohn’s disease.

“The key here is flexibility,” Oswald said, adding that employers will never have to allow for an employee who is impaired by drug use and can’t perform his or her job.

Best Drug-Testing Practices

For drug-testing policies in general, Oswald recommended the following:

  • Comply with state law. For example, some states require employers to use state-licensed labs for testing, and some states have banned random drug testing and blanket drug testing.
  • Have the policy in writing, distributed to employees and signed by employees.
  • Never take disciplinary action against an employee without confirming the drug test result via a second test of the same sample.
  • Review the legality and appropriateness of the drug policy on an annual basis.
  • Separate the organization’s drug policy from its alcohol policy.

Oswald noted that employers are generally free to set their own drug policies, whether zero tolerance or otherwise. If an employee contests the legitimacy of testing results, he recommended employers make sure they are partnered with an experienced and reputable drug-testing company so that all procedures are sure to be followed, including compliance with chain of custody, privacy and state and federal regulations.

Employers also should direct an employee contesting results to contact the third-party testing facility.

Question isn’t taboo in the workplace anymore

FROM BLOOMBERG NEWS, 3 MARCH 2016

Are you gay? The question isn’t taboo in the workplace anymore, for better or worse.

JPMorgan Chase & Co.’s human resources department is asking employees for the first time this year if they’d like to disclose their sexual orientation or gender identity. Companies including Facebook Inc., Deutsche Bank AG, IBM Corp. and AT&T Inc. also collect the data. By one measure, nearly half of the largest U.S. businesses — under pressure to be inclusive as they compete for talent — seek to gather information on who on the payroll is homosexual, bisexual or transgender so better benefit plans can be designed and managers can consider diversity enhancing promotions.

“Collecting the data is not weird now,” says Gary Gates, a retired demographer from UCLA Law School’s Charles R. Williams Institute. With the U.S. Supreme Court having legalized same-sex marriage and the military abandoning its don’t ask, don’t tell policy, “there’s much less fear and stigma.”

That may be true, but there’s enough peril that Chevron Corp. decided not to pose the question after a review identified data-security risks. Many that have studied the issue opted not to proceed, says Michelle Phillips, a lawyer with Jackson Lewis in White Plains, New York, who advises companies on employment law. Phillips says one worry is that a rogue employee might leak the information about a colleague to do him or her harm.

‘Totally Contrary’
There are a host of concerns — including that it’s legal in 28 states, from Montana to Virginia, to discriminate against anyone who isn’t heterosexual. The issue is more urgent for people who work in or travel for work to the more than 76 countries where homosexuality is a crime. Companies are careful: American Express Co., which has been collecting sexual-orientation specifics in the U.S. for 10 years, is adding a question about gender identify only in countries where that’s legal, says Chris Meyrick, the chief diversity officer. Businesses that do ask the questions make it clear it’s voluntarily to answer.

For former Ford Motor Co. Chief Financial Officer Allan Gilmour, who came out as gay in the 90s after twice being passed over for chief executive officer, it’s a pleasant surprise that employers are interested. “I never would guessed 20 years ago that questions of this kind would be asked,” he says. Back then, it was best to operate as though “this is nobody’s business except mine.”

Tom Barefoot, a strategic planning manager and senior vice president at Wells Fargo & Co. in Charlotte, North Carolina, was one of the employees who encouraged the bank to adopt the self-identify policy in 2011. “When I finally clicked that one field on my sexual orientation, it was just like time had stopped,” he says. “I’m actually putting into our HR system that I’m gay? It felt really good.”

JPMorgan began posing the question in 2007 in anonymous surveys, and LGBT workers approached management about making it part of the human resources system. They wanted “to make themselves visible,” says Therese Bechet Blake, head of diversity for the corporate sector. But at EY, “there was some outrage” when after five years of the anonymous approach the consulting firm in 2014 put the query on human resources paperwork, says Chris Crespo, the inclusiveness director.
The most concerned were those who travel to countries where their lifestyle is a crime, she says. “There were very mixed feelings.”

Michael Elliott, an executive director in Dallas for EY’s consulting practice, says his initial worry was that “we didn’t make people feel like we were forcing them out.” And Elliot says that when he checked the not-straight box last year it was anti-climactic.

Few Objections
“It totally amazes me that the mindset has started to shift,” he says. “As little as 10 years ago, at smaller companies, you could either be easily fired or they were following the military idea of don’t ask, don’t tell.”

About 2.1 percent of EY workers reported being LGBT in the anonymous surveys. The HR data collected is too new for comparison, Crespo says, though EY estimates 2.1 is half the actual percentage. At EY and many other companies, she says, about 4 percent of people prefer not to answer, saying they don’t trust the question or consider it inappropriate.

“Voluntary self-identification is something that seems innocuous at first blush, and generally could be a good idea, but it’s actually much more complicated,” says Phillips, the lawyer. “No question, everything being equal, it’s better to collect than not collect. The problem is that everything isn’t equal.”

 

IT IS SEX HARASSMENT, SAY HOOTERS MALES

MALE EMPLOYEES AT HOOTERS SUE, 3 MARCH 2016

HOLLYWOOD (CBSLA.com) — Hooters is known for their attractive servers and tasty wings, but two men who worked at the establishment claim their male boss sexually harassed them for years.

“Repeated, intense acts which were intended to cause mental harm to the plaintiffs, to humiliate them, to undermine them,” said Jason Oliver, an attorney who is representing both men.

Oliver’s clients PJ Cagnina and Scott Peterson filed a lawsuit Tuesday alleging multiple instances of harassment.

One of those instances accuses their boss of throwing one of the men “down to the parking lot ground” and forcibly engaging in simulated sodomy, according to the suit.

They also claim the defendant would “touch male employee’s buttocks when standing behind them.”

Oliver says both his clients were Hooters’ managers at multiple locations around the Southland, including downtown Los Angeles, Costa Mesa, and Hollywood.

They claim they confronted their boss about the behavior and the company investigated him. Within months, he was fired with no explanation as to why.

But soon after, Peterson was also let go, which his attorney argues was in retaliation.

“When they stood up to him, they paid the price. They were punished even more in terms of other types of mistreatment,” Oliver said.

Hooters released a statement that said: “This matter involves a franchised location and its employees in California. We have no independent knowledge of the facts and are therefore unable to comment.”

Neither men work for Hooters anymore and could not speak with CBS2 on-camera Wednesday night, but Oliver says this is not just about money, but is to want to make sure this kind of behavior doesn’t happen again.

 

WORK – LIFE BALENCE

Comment by Phyllis Towzey on Huffingtonpost article, 29 Feb 2016

 

Interesting article on maintaining that work-life balance. It also raises a few things to think about, for companies and employees. First, companies should make sure that if employees ARE answering emails and business texts after hours, that no violations of the FLSA overtime provisions are occurring. Also, with respect to who owns the contacts the employee has developed, this can be a gray area for both parties. Companies should consider having employees sign a a noncompete, nonsolicitation and confidentiality agreement so that the contacts made on the job using the company’s resources are protected. And employees who are asked to sign an agreement with restrictive covenants should negotiate to have a list of pre-existing contacts and business relationships specifically excluded from the agreement.

From the Huffington Post

The typical workday is long enough as it is, and technology is making it even longer. When you do finally get home from a full day at the office, your mobile phone rings off the hook, and emails drop into your inbox from people who expect immediate responses.

While most people claim to disconnect as soon as they get home, recent research says otherwise. A study conducted by the American Psychological Association found that more than 50% of us check work email before and after work hours, throughout the weekend, and even when we’re sick. Even worse, 44% of us check work email while on vacation.

A Northern Illinois University study that came out this summer shows just how bad this level of connection really is. The study found that the expectation that people need to respond to emails during off-work hours produces a prolonged stress response, which the researchers named telepressure. Telepressure ensures that you are never able to relax and truly disengage from work. This prolonged state of stress is terrible for your health. Besides increasing your risk of heart disease, depression, and obesity, stress decreases your cognitive performance.

We need to establish boundaries between our personal and professional lives. When we don’t, our work, our health, and our personal lives suffer.

2016-01-28-1454024589-7132377-FiveThingsYouDontOweYourBossHP2.jpg

Responding to emails during off-work hours isn’t the only area in which you need to set boundaries. You need to make the critical distinction between what belongs to your employer and what belongs to you and you only. The items that follow are yours. If you don’t set boundaries around them and learn to say no to your boss, you’re giving away something with immeasurable value.

Your health. It’s difficult to know when to set boundaries around your health at work because the decline is so gradual. Allowing stress to build up, losing sleep, and sitting all day without exercising all add up. Before you know it, you’re rubbing your aching back with one hand and your zombie-like eyes with the other, and you’re looking down at your newly-acquired belly. The key here is to not let things sneak up on you, and the way you do that is by keeping a consistent routine. Think about what you need to do to keep yourself healthy (taking walks during lunch, not working weekends, taking your vacations as scheduled, etc.), make a plan, and stick to it no matter what. If you don’t, you’re allowing your work to overstep its bounds.

Your family. It’s easy to let your family suffer for your work. Many of us do this because we see our jobs as a means of maintaining our families. We have thoughts such as “I need to make more money so that my kids can go to college debt-free.” Though these thoughts are well-intentioned, they can burden your family with the biggest debt of all–a lack of quality time with you. When you’re on your deathbed, you won’t remember how much money you made for your spouse and kids. You’ll remember the memories you created with them.

Your sanity. While we all have our own levels of this to begin with, you don’t owe a shred of it to your employer. A job that takes even a small portion of your sanity is taking more than it’s entitled to. Your sanity is something that’s difficult for your boss to keep track of. You have to monitor it on your own and set good limits to keep yourself healthy. Often, it’s your life outside of work that keeps you sane. When you’ve already put in a good day’s (or week’s) work and your boss wants more, the most productive thing you can do is say no, then go and enjoy your friends and hobbies. This way, you return to work refreshed and de-stressed. You certainly can work extra hours if you want to, but it’s important to be able to say no to your boss when you need time away from work.

Your identity. While your work is an important part of your identity, it’s dangerous to allow your work to become your whole identity. You know you’ve allowed this to go too far when you reflect on what’s important to you and work is all that (or most of what) comes to mind. Having an identity outside of work is about more than just having fun. It also helps you relieve stress, grow as a person, and avoid burnout.

Your contacts. While you do owe your employer your best effort, you certainly don’t owe him or her the contacts you’ve developed over the course of your career. Your contacts are a product of your hard work and effort, and while you might share them with your company, they belong to you.

Your integrity. Sacrificing your integrity causes you to experience massive amounts of stress. Once you realize that your actions and beliefs are no longer in alignment, it’s time to make it clear to your employer that you’re not willing to do things his or her way. If that’s a problem for your boss, it might be time to part ways.

Bringing It All Together

Success and fulfillment often depend upon your ability to set good boundaries. Once you can do this, everything else just falls into place.

What do you do to set boundaries around your work? Please share your thoughts in the comments section below, as I learn just as much from you as you do from me.

UNEMPLOYMENT BENEFITS REDUCED BY STATES

FROM AP, 28 FEB 2016

When Demetrius White recently lost his job as a $10-an-hour forklift driver loading pallets of shampoo, he applied for unemployment benefits to help support his family.

That aid will not last as long as it once did, because White is among the first group of people affected by a new Missouri law reducing the duration of jobless benefits. His $200-a-week checks will last no more than three months — just half as long as what has typically been available.

“That’s a dramatic change, really,” White said. “Thirteen weeks, I don’t know if I’ll be able to find a job.”

States traditionally have offered up to half a year of aid for the unemployed as they search for new jobs. But since the end of the Great Recession, eight states have reduced the number of weeks that people can draw benefits, while others have cut the amount of money the unemployed can collect.

The cutbacks generally are intended to help shore up unemployment insurance trust funds, which went insolvent in 35 states following the recession that began in 2008. The changes could save hundreds of millions of dollars for businesses that pay unemployment taxes.

President Barack Obama is pushing in the opposite direction. The White House warns that states are engaging in a “damaging erosion” of unemployment benefits. Obama’s budget plan would require all states to provide at least 26 weeks of benefits while expanding coverage to more part-time and intermittent workers.

The Republican-led Congress appears unlikely to approve the president’s plan during an election year. GOP governors and state lawmakers initiated many of the recent cutbacks to unemployment benefits. And they point to declining unemployment rates as evidence that jobs are getting easier to find.

“When there’s more jobs available, it’s kind of common sense — you shouldn’t need as long as a duration of unemployment benefits,” said Missouri Senate Majority Leader Mike Kehoe, a Republican who handled the legislation reducing benefits.

The 1935 Social Security Act prompted states to enact unemployment programs, which typically pay people about half the amount of their previous paychecks. In 1938, more than four-fifths of the states offered benefits for 16 weeks or less. But all states gradually increased their benefits to at least 26 weeks. South Carolina was the last to do so in 1968.

In 2011, Missouri became one of the first states to reverse course by cutting that to 20 weeks. Last year, the GOP-led Legislature overrode a veto by Democratic Gov. Jay Nixon to further shorten the benefits, linking their duration to the state’s unemployment rate. Because unemployment is below 6 percent, people can get no more than 13 weeks of benefits.

The new limit went into effect in January, even though a legal challenge brought by attorneys for the AFL-CIO is now before the Missouri Supreme Court. The lawsuit seeks to block the new law because of an alleged procedural violation by senators.

For some unemployed workers, the new state laws have added another layer of anxiety to an already unsettling situation.

White is one of about 36,000 Missouri workers who filed initial unemployment claims in January. A married father of two, he already has taken out a high-interest loan to help pay for his daughter’s college tuition. His wife remains employed as a teacher, but White said the family is starting to fall behind on bills, including electricity. He is afraid he will not be able to make mortgage payments.

“It’s been a struggle,” White, 43, said while picking up materials about temporary jobs from a state work center in Jefferson City. “I don’t have confidence of a job or hirings.”

The Missouri law is projected to reduce annual unemployment payouts by $83 million — a reduction of nearly one-fourth.

Neighboring Arkansas reduced its unemployment benefits to 20 weeks under a law that took effect last October. Those shortened benefits run out this month for some people, though the state won’t say how many.

South Carolina and Michigan also limit benefits to 20 weeks. Sliding scales linked to unemployment rates have resulted in limits of 16 weeks in Kansas, 14 in Georgia, 13 in North Carolina and 12 in Florida.

Some states also have reduced the maximum weekly payments, narrowed who can qualify and increased work-search requirements that can result in delayed or denied benefits if not met.

“We’ve experienced a wave of very drastic benefit reductions,” said Claire McKenna, a policy analyst at the National Employment Law Project, a New York-based group that serves as an advocate for low-wage workers and the unemployed.

Ohio could be the next state to shorten benefits. A bill by Rep. Barbara Sears would cut benefits to as few as 12 weeks by linking their duration to the unemployment rate. It also would make other benefit changes while trying to replenish an unemployment insurance trust fund that owes $773 million to the federal government.

The legislation is projected to reduce unemployment payments by an average of $475 million annually from 2018 to 2025.

Sears said some people who remain jobless for several months are “kind of settling in on unemployment and riding it until almost the last week before they’re re-engaging in the workforce.” A shorter benefit period could prompt them to find work, she said.

“When you know you’re going to go off of unemployment, there is an overwhelming urge to be less particular maybe about finding the exact job that you lost,” said Sears, a Republican from the Toledo area.

Advocates for the poor dispute that assertion. After the reductions in Florida, Georgia and North Carolina, the percentage of adults ages 25 to 54 with jobs in those states grew more slowly than the national average, according to the Economic Policy Institute, a Washington-based liberal think tank.

A coalition of Ohio health and human services groups has warned that shorter unemployment benefits could increase poverty. Some people will turn to food stamps or charities, sell their possessions or their blood plasma and run up credit card debt just to get by, said Lisa Hamler-Fugitt, executive director of the Ohio Association of Foodbanks and co-chair of Advocates for Ohio’s Future.

“Once you fall into poverty, the chances that you’re going to be able to get back out are going to be pretty difficult,” she said.

Business groups contend the benefit cutbacks are an appropriate way for workers to shoulder part of the costs of rebuilding depleted trust funds.

At one point following the recession, states owed a total of $51 billion to the federal government to repay loans for unemployment benefits. To recoup that, the U.S. government temporarily raised the unemployment tax paid by businesses in many of those states.

Besides Ohio, the only states still in federal debt are California, with $6.4 billion, and Connecticut, which owes about $100 million. But the Obama administration says just 20 states have enough reserves in their trust funds to weather a recession for a year. Obama has proposed to gradually increase employer taxes to help solidify the trust funds.

 

St. Pete Wage Dispute Office

From TBO Feb 1. 2016

ST. PETERSBURG — The city’s wage dispute office has been up and running for four months and is working as its supporters predicted it would.

The office has processed a handful of worker paycheck complaints — one of which was settled after an administrative hearing, and the others handled more quickly when employers agreed to make good on the wages they owed during the initial mediation.

Eve Epstein, the city’s new wage and hour compliance officer, said the process is playing out similarly to the model created in Miami-Dade to handle wage theft, particularly for those in low-paying jobs.

“Generally, employers are paying when they are ordered to pay,” she said last week, while noting the city is a small sample size.

St. Petersburg is the first Florida city to adopt a wage theft ordinance and set up an office to advocate on behalf of workers who have been denied fair compensation. In other places, county governments have assumed that role, including Pinellas and Hillsborough, each of which began programs Jan. 1.

Overall, at least six counties have passed some form of a wage theft ordinance since Miami-Dade’s in 2010. That ordinance followed a study by Florida International University that showed Miami-Dade had the state’s highest number of wage theft cases, followed by Hillsborough, Broward and Pinellas, based on federal Department of Labor statistics.

St. Petersburg’s ordinance, pushed by City Council member Darden Rice, passed in April and took effect in October.

Epstein, hired in June, said she is continuing to get the word out to workers and employers. Employers, for instance, could be liable for three times the wages owed to workers if a case were to proceed to court and they were to lose.

“We’re not trying to take them by surprise,” she said. “We’re just trying to fix wage theft, which is rampant in Pinellas.”

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Wage theft typically involves people who are forced to work “off the clock,” are not paid for overtime hours, or are not paid at all. Often they are day laborers or work in hotels, restaurants, health care facilities, or construction and lawn service businesses.

In St. Petersburg, complaints filed thus far have ranged from workers not being paid to how tips are divided for servers at restaurants. Once notified, Epstein said, employers have agreed to pay workers. One case went to mediation and was resolved. Another involved a restaurant that unfairly was dipping into the tips of a server. That case went the next step, to an administrative hearing, where the employer agreed to pay.

“They thought what they were doing was legal,” Epstein said.

The cases, on average, have taken about a month to resolve, “which is good considering the (employers) have 20 days to reply,” she said. Employers are taking the ordinance seriously, she said, and generally are more aware of it than most workers are.

The results are not surprising. In Miami-Dade the vast majority of cases are settled with a call to the employer or through the mediation process.

Officials in Pinellas and Hillsborough said they have yet to process claims since launching their initiatives Jan. 1.

About 15,000 wage theft reports were filed in Pinellas from 2012-14, amounting to about $7.5 million in lost wages, according to the FIU study. In Hillsborough, about 12,500 wage theft violations were cited during the same time, with 9,539 workers reimbursed a total of $5.71 million.

Pinellas County’s program is similar to the city’s and to the Miami-Dade model. Rice said the city and county are discussing ways to align their ordinances and to work together.

In St. Petersburg, Epstein is the initial contact person. She gathers the necessary proof of employment from the worker and contacts the employer if money is owed. If payment is not made, the process moves to mediation and then to an administrative hearing, if needed. If that fails, the city will help the worker file a claim in circuit court.

Paul Valenti, director of the Pinellas Office of Human Rights, said his office has received a few complaints, but most occurred before the county’s ordinance took effect on Jan. 1. The office is reviewing two recent claims.

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In Hillsborough, the Consumer Protection Services division will take complaints and refer them to the circuit court mediation and diversion program, division Director Eric Olsen said. The office also coordinates with Bay Area Legal Services to represent workers in cases that end up in court.

His office has heard “a handful” of complaints so far, and Olsen said the staff is preparing to do more publicity to let workers know the program is available, as Pinellas and St. Petersburg also are doing. Olsen is optimistic about its success.

“Once you got to a neutral process, oftentimes a solution can be found,” Olsen said. “We’re really excited about it.”

Valenti said Pinellas staff members will meet this week to discuss outreach programs. Epstein has begun working at the Childs Park YMCA in St. Petersburg on Wednesdays to reach more people. The city is advertising the program at recreation centers and libraries, holding community forums and even sent people to a recent job fair.

“We’re trying to get the word out to everyone,” Epstein said.

With tourism underway, she expects more complaints may be coming from the seasonal service industry workers. “There are lots of issues with tips,” she said.

Some agencies — including the federal wage and hour office and even the unemployment office — have referred workers to the city, she said. While the Department of Labor will handle claims that involve large businesses — those with at least $500,000 in annual revenue or at least 10 employees — it doesn’t preclude the city from pursuing cases, Epstein said.

The federal agency only can enforce the statutory minimum wage, but the city will pursue the actual wages an employee was promised, she said. The ordinance says the work must have been performed in the city or in Pinellas within the previous 12 months, the amount owed must exceed $60, and the worker must have been an employee of the business.

Epstein, a graduate of St. Petersburg High School, returned to the city from Washington, D.C., where she was an attorney for the Department of Labor and then a negotiator for a federal employees union. She said she is working as a mediator for the city and not as an attorney.

Among the issues she addressed in Washington were workers misclassified as independent contractors, and thus ineligible for the wage protection such as the city’s program provides, she said.

That issue recently has gained attention in the compensation dispute between rider services such as Uber and Lyft and their drivers.

Four Hillsborough Uber drivers are seeking to join others across the country in a class-action suit against the ride-hailing company, maintaining it unfairly classifies them as independent contractors rather than employees. Their lawsuit filed in U.S. District Court in Tampa contends the classification of drivers violates the Fair Labor Standards Act by denying the employees at least minimum hourly wage and for overtime after 40 hours a week.

It also denies the drivers workers’ compensation insurance, unemployment insurance, disability insurance and other benefits, according to the lawsuit.

Epstein said it is not up to the city to decide the independent contractor question, but that she would encourage anyone who thinks they have not been classified or compensated properly to file a claim — Uber drivers included

 

Chief Justice John Roberts annual report

FROM ASSOCIATED PRESS, DEC 31, 2015

Dec. 31, 2015 6:01 PM ET
WASHINGTON (AP) — Chief Justice John Roberts highlighted changes Thursday to federal court rules that he hopes will make lawsuits less expensive and time consuming.
Roberts said in the annual report he issues on the last day of the year that the rule changes that took effect a month ago are a “big deal” because they focus on ways to reduce delays and gamesmanship that plague civil lawsuits in the federal system.
“They mark significant change, for both lawyers and judges, in the future conduct of civil trials,” wrote Roberts, who has been on the Supreme Court since 2005.
Reflecting the importance of e-mails and other electronically stored information that might be sought by one side or the other in a lawsuit, Roberts said the rules point to greater consequences for failing to preserve that information, especially if the loss is not accidental.
Last year’s report announced the Supreme Court’s belated development of an electronic filing system similar to those used in courts around the country. Roberts offered no update on that work in the new report, but court officials have said they expect the system to come on line sometime in 2016.

 

UBER drivers are contractors, state agency rules

FROM TAMPA BAY TIMES, DEC. 3, 2015

 

TALLAHASSEE — Uber drivers are independent contractors and not employees of the ride-booking service, according to a ruling Thursday by the head of the state’s job agency.

Department of Economic Opportunity Executive Director Jesse Panuccio wrote in an order that the contract between Uber and its drivers, who use a smartphone app to identify passengers and pick them up, makes them contractors ineligible for unemployment insurance.

“The Department finds that the drivers at issue here — providers of transportation services through the Uber software application — are independent contractors, not employees, and are therefore not entitled to file for unemployment insurance in Florida,” Panuccio’s ruling says.

Earlier this year, Oregon and California made the opposite decision in similar cases, deciding that in their borders, drivers are employees of Uber.

While Panuccio’s decision only applies to unemployment insurance, it raises a bigger question about the relationship between companies like Uber and the people they pay, even as ride-booking apps’ mere existence continues to be an issue in some parts of the state, including Hillsborough County.

After losing access to the Uber app as drivers, Darrin McGillis of Cutler Bay and Melissa Ewers of Temple Terrace sought unemployment benefits. They argued that because they had been earning a living through the app and had then lost that source of income, they were entitled to state benefits.

But Panuccio says existing state law provides for the relationship between Uber and drivers as contractors.

“We need not break new legal ground or upend economic progress by transforming middlemen into employers,” he wrote.

References by FL Employers

Posted by Attorney Phyllis Towzey, November 23, 2015

 

I’ve been receiving a lot of questions lately about employment references. Should employers provide them? What can an employee do if they find out they are getting a bad reference, and feel that it is undeserved? Here’s what the Florida statute provides: Section 768.095 Employer immunity from liability; disclosure of information regarding former or current employees.—An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

As you can see, employers have broad protection in giving out references, so long as they are not knowingly providing false information. Many employers incorrectly fear that they will be liable if they say ANYTHING negative about a former employee, and opt to simply provide dates of employment, position held, and salary. That’s not necessarily a good plan and will not always shield an employer from liability. For example, an employer could be held liable for failure to warn if they are specifically asked for a reference and do not disclose that the employee in question was fired for violence in the workplace, and that employee then is hired by another company and commits an assault at the workplace.

The best practice for employers is to think about what information you would legitimately want to know when YOU are the once calling for a reference. Of course, always avoid making statements that are motivated by ill will.

From the employee’s perspective, if you are receiving a bad reference your only legal recourse is if it is a false factual statement. Since such statement must be made knowingly in order for the employer to be liable, the first step is for you to contact your former employer by mail or email and point out the inaccuracy. If the factually incorrect references continue, then you need to seek legal advice.

 

FEDERAL OVERTIME PAY RULE

FROM THE WALL STREET JOURNAL, NOV. 11, 2015

Employers have been scrambling to prepare for a new rule that will sharply increase the number of U.S. workers who are eligible for overtime pay. But they may have more time than they thought.

The Labor Department’s final rule on overtime eligibility isn’t likely to appear before late 2016, Solicitor of Labor Patricia Smith said at a panel discussion recently, according to several people who were in attendance. Employers had been expecting the rule to go into effect late this year or early next.

representatives of the agency weren’t immediately available to comment.

In June, the agency proposed raising the salary limit for who is eligible for overtime pay from $23,660 per year to $50,400, a change that would put millions more U.S. workers in line for overtime pay and span occupations as diverse as graphic designers and business analysts.

About 270,000 people and organizations submitted comments to the Labor Department on the proposed change, more than three times the number received when the rules were last changed in 2004. Ms. Smith said that the lengthy time needed to finish drafting the regulation was due to the volume of comments and the complex nature of the change, according to attendees.