The California law meant to protect Uber and Lyft drivers, as well as other gig workers, remains embattled and uncertain on multiple fronts. We’re watching to see how the U.S. Solicitor General responds, but every development seems to spark more questions than answers.

Here’s a rundown:

The law, which took effect in 2020 but quickly faced challenges that put it in limbo, was intended to prevent companies from denying employment protections and benefits to their workers by misclassifying them as independent contractors. 

However, the ripple effects of the law included outrage from certain industries that have long relied on an independent contractor model. Objectors included freelance journalists, writers, musicians, photographers — any workers who rely on independent status and contracts with multiple employers to make a living. A follow-up bill signed in September 2020 detailed certain exemptions, but resolution remains elusive.

In the courts

In October, a U.S. appeals court refused to stop implementation of AB5, despite complaints from freelance journalists who said it limited their employment options. That legal battle likely isn’t over; the American Society of Journalists and Authors, among others, sees laws such as AB5 as threats to writers’ livelihoods. 

Opinions about AB5 also are hot in the trucking industry — trucking companies starkly oppose it, while the law may help struggling independent truck drivers, according to an article in TIME. Motor carriers’ legal challenges carried the matter to the U.S. Supreme Court, which in November asked the U.S. Solicitor General to file a brief expressing the views of the United States. That signals some interest in taking up the matter. In the meantime, AB5 can’t be enforced against motor carriers, freight industry news site Freightwaves notes. 

At the ballot box

In 2020, Uber and Lyft spent roughly $200 million taking their case to voters, trying to sidestep AB5 by offering a certain level of alternative benefits while still getting to classify their drivers as independent contractors. But even passage of that initiative (Proposition 22) didn’t resolve anything — a California Superior Court judge ruled it unconstitutional and unenforceable. The prospect: Another potentially prolonged court battle, with gig workers still in limbo.

At the federal level

Even if all of the above shakes out in a way that makes sense, a simultaneous push could end up taking the matter out of states’ hands.

At the federal level, Democrats are pushing for more protections for independent contractors, borrowing ideas from AB 5 and undoing prior rules that made it easier for businesses to classify workers as independent contractors, according to POLITICO. Also, the National Labor Relations Board’s new general counsel has plans to address the matter, including whether independent contractors should be able to unionize.

As this situation demonstrates, employment law and conflict with any type of employer can be intimidating and confusing. If your employer isn’t treating you fairly, the experienced employment lawyers at Keller Grover offer free consultations to help you understand your rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members.

Related blogs:

• Hope revives for mistreated gig economy workers
• California moves to tweak new gig economy law to accommodate freelancers, others
• Uber, Chipotle get called out for making false promises 
• New rules for classifying independent contractors: A win for workers 
• Employee or contractor? A California court clarifies delivery driver classifications   

Note: This article has been updated to reflect the U.S. Supreme Court’s Jan. 13, 2022 rulings in two vaccine mandate cases. 

As efforts to increase the number of Americans who are vaccinated against COVID-19 ramp up, employees can expect to see more vaccine mandates in their workplaces. 

Over the summer, the California Department of Public Health issued orders requiring certain covered health care facilities and school districts to verify their employees’ vaccination status and implement mandatory regular testing of unvaccinated workers. 

On Sept. 9, as part of his comprehensive strategy to combat the spread of the coronavirus, President Joe Biden announced that he was instructing the Occupational Safety & Health Administration to develop a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly testing. The rule was anticipated to affect more than 80 million workers nationwide.

On Jan. 13, 2022, the U.S. Supreme Court reinstated a federal injunction blocking OSHA’s so-called vaccine-or-testing rule, which the agency implemented in response to President Biden’s executive order. The high court concluded that OSHA exceeded its authority in issuing the rule. 

The same day, in a second case, the court allowed a Centers for Medicare & Medicaid Services rule requiring healthcare workers to be vaccinated to stand, however.   

While the topic of vaccine mandates remains politically and emotionally charged, employees should be aware of their rights under state and federal law. Employees are still entitled to seek health exemptions under the Americans with Disabilities Act and religious exemptions under Title VII of the Civil Rights Act of 1964. 

Employees who do not get vaccinated for COVID-19 because of a disability are required to tell their employer that they need an exemption or a reasonable accommodation, according to guidance from the Equal Employment Opportunity Commission. Employees do not need to specifically mention the ADA or the phrase “reasonable accommodation,” however. 

The employee and employer then engage in an interactive process to identify potential workplace accommodations that would not impose an undue hardship on the employer, which the courts have defined as having a more than minimal cost or burden.

Under the ADA, an employer can seek more information in support of the exemption from the employee’s doctor or healthcare provider. 

When it comes to religious exemptions, Title VII requires employers to accommodate employees whose sincerely held religious belief, practice, or observance is in conflict with a work requirement, unless providing such an accommodation would create an undue hardship. 

According to the EEOC, the definition of religion in Title VII is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. The EEOC additionally advises employers to ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, practice, or observance. 

If an employee requests a religious accommodation and the employer is aware of facts that provide an objective basis for questioning either the religious nature or sincerity of a particular belief, practice, or observance, the employer would be justified in seeking additional supporting information, the EEOC also advises. 

Employers are required under Title VII to thoroughly consider all possible reasonable accommodations, including telework and reassignment. 

California state law also sets out protections for employees. Under the California Fair Employment and Housing Act, employers may require employees to receive an FDA-approved COVID-19 vaccine, so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity. 

If you have questions about obtaining exemptions on religious or health grounds, reach out to us for a free consultation. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have zealously advocated for workers, recovering hundreds of millions of dollars for clients and class members. 

 

Harassment victims no longer can be muzzled by employers under new law

New law frees harassment victims from employment secrecy clauses 

Employers in California no longer can force victims of harassment or discrimination to keep quiet about those experiences.

As of Jan. 1, the “Silenced No More Act” expands state law to cover all settlement agreements regarding harassment or discrimination, closing a loophole in prior law. The new law (SB 331) bans confidentiality and non-disparagement clauses about such violations from being folded into severance agreements, building on a 2018 law (SB 1300) that banned such clauses in employment agreements. 

California lawmakers who backed the law say it’s important that hostile work environments not be protected by secrecy. The various layers of legislation were sparked by the #MeToo movement, which revealed how devastating confidentiality clauses had been in perpetuating patterns of sexually inappropriate behavior. 

Often, victims are urged to sign non-disparagement or similar agreements in exchange for a raise, bonus, or continued employment. But now, unlawful acts in the workplace can’t be swept under the rug. This doesn’t mean disclosure is necessary — it gives victims the freedom to choose whether to share their experiences.

Notably, these laws protect victims of harassment or discrimination based on more than sex — they also cover factors such as race, ethnicity, sexual orientation, age, disability, and religion. In addition, retaliation for reporting violations is prohibited. Employers also may be held responsible for harassment of workers even by non-employees if those in charge knew or should have known about the conduct but didn’t take swift corrective action.

If you’ve been the victim of harassment, discrimination, or retaliation in the workplace, don’t hesitate to seek legal advice. These violations are illegal and just plain wrong, and we are passionate about advocating for victims. 

Start with a free consultation — the experienced employment lawyers at Keller Grover can help you understand your rights, protections, and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Let us add you to that list.

 

Employers in California no longer can force victims of harassment or discrimination to keep quiet about those experiences.

As of Jan. 1, the “Silenced No More Act” expands state law to cover all settlement agreements regarding harassment or discrimination, closing a loophole in prior law. The new law (SB 331) bans confidentiality and non-disparagement clauses about such violations from being folded into severance agreements, building on a 2018 law (SB 1300) that banned such clauses in employment agreements. 

California lawmakers who backed the law say it’s important that hostile work environments not be protected by secrecy. The various layers of legislation were sparked by the #MeToo movement, which revealed how devastating confidentiality clauses had been in perpetuating patterns of sexually inappropriate behavior. 

In many cases, victims were required to sign non-disclosure or similar agreements in connections with settlement agreement or in exchange for a raise, bonus, or continued employment. But now, unlawful acts in the workplace can’t be swept under the rug. This doesn’t mean disclosure is necessary — it gives victims the freedom to choose whether to share their experiences.

Notably, these laws protect victims of harassment or discrimination based on more than sex — they also cover factors such as race, ethnicity, sexual orientation, age, disability, and religion. In addition, retaliation for reporting violations is prohibited. Employers also may be held responsible for harassment of workers even by non-employees if those in charge knew or should have known about the conduct but didn’t take swift corrective action.

If you’ve been the victim of harassment, discrimination, or retaliation in the workplace, don’t hesitate to seek legal advice. These violations are illegal and just plain wrong, and we are passionate about advocating for victims. 

Start with a free consultation — the experienced employment lawyers at Keller Grover can help you understand your rights, protections, and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Let us add you to that list.

 

As California — and the rest of the nation, for that matter — tries to figure out what to do with gig workers, a protracted legal battle has come out in favor of the little guy. At least for the moment. 

The case pits a former Grubhub driver, Raef Lawson, against the company, pursuing minimum wage, overtime and expense reimbursement claims. But the law is far from straightforward. 

A tangled web 

The state has been going back and forth about how to categorize people who take on app-based work, such as Uber drivers. In 2019, the legislature piggybacked on a California Supreme Court decision, codifying a ruling that put the burden on employers (a so-called “ABC test”) to show that someone was an independent contractor and not an employee. The idea was to stop companies from using contractor status to avoid having to offer benefits, overtime pay, and other perks or protections. 

Then, it became clear that the provisions didn’t help everyone — such as those whose careers (i.e. freelance writing) had long relied on independent contractor status. While the legislature worked to adjust the new law, California voters approved a measure (Proposition 22) that allowed app-based transportation and delivery drivers to remain as independent contractors but get some alternative benefits. (A few months ago, a state superior court ruled that the law was unconstitutional and unenforceable — we’ll see where that ends up.) 

Anyway, the text of the voter-approved measure, effective a year ago, didn’t specify that it was applicable retroactively. But the ABC test was: A January 2021 ruling by the California Supreme Court said the “ABC test applies retroactively to claims rooted in wage orders.” 

Back to the present 

All this took place while the Lawson-Grubhub case remained pending. 

Given these overlapping facts, Grubhub tried to argue that the passage of Proposition 22 meant the ABC test wasn’t applicable. The 9th U.S. Circuit Court of Appeals disagreed, sending the matter back to district court for the ABC test and consideration of Lawson’s minimum wage, overtime and expense reimbursement claims. 

What does it mean for me? 

It could mean a lot of things. If you’re happy as an independent contractor, you can stay that way. If you work in the gig economy, keep your eyes on the courts. If you had wage disputes with gig employers that date back beyond December 2020, you may have a case.

We’ll be watching the district court as it applies the ABC test, as well as whether Proposition 22 remains applicable. 

As this situation demonstrates, employment law and conflict with any type of employer can be intimidating and confusing. If your employer isn’t treating you fairly, the experienced employment lawyers at Keller Grover offer free consultations to help you understand your rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members.