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Are Uber and Lyft Drivers Employees or Independent Contractors?

Two San Francisco ride hailing companies – Uber and Lyft – are facing class action lawsuits from their drivers based on independent contractors misclassification.  (Article Here)  Both companies treat their drivers as independent contractors.  However, those drivers have now brought class action lawsuits in an effort to get all drivers reclassified as employees.  While it is well-known that classification as an independent contractor changes ones tax status, it also is an essential question into the rights of workers to the protections of the Federal Fair Labor Standards Act and California’s wage and hour laws.

The current lawsuits will not only impact Uber and Lyft drivers,  but will also likely set precedent for the entire industry of on-demand companies, known as “Uber for X” companies.  These companies utilize independent contractors in place of employees as part of their business model.  If you think you may be misclassified as an independent contractor please contact one of our San Francisco employment lawyers.

The Uber and Lyft Lawsuits

Both Uber and Lyft are in the midst of litigating claims by their drivers that turn on whether the drivers were independent contractors or not.  These cases are still pending before the court.

LyftThe Claims by Lyft Drivers:

Lyft is a transportation network company that uses a mobile-phone application to facilitate ridesharing by connecting passengers who need a ride to drivers who have a car.  In 2013, a Lyft driver brought suit against Lyft, alleging that the company treats its drivers as full-fledged employees, and that Lyft therefore violates California labor laws when it skims 20 percent off drivers’ tips as an “administrative fee.”

The Claims Against Uber:

Uber is smartphone application provider that provides transportation and taxi services.  Uber drivers sued the company in August 2013, accusing Uber of misclassifying them as independent contractors.  The lawsuit against Uber makes similar allegations to the Lyft lawsuit, mainly that drivers were cheated out of a 20 percent gratuity.
It will be interesting to continue to watch these cases and to follow the developments and guidance they may provide for future misclassification cases. Below is a look at the different factors used in making a determination regarding independent contractor status for wage and hour purposes.

California’s Independent Contractor Determination

While employers may wish to simply enter in contracts that designate their workers as independent contractors, the law does not allow them to do so.  In fact, an employer’s designation of its employees as independent contractors and the fact that a worker is issued a 1099 form rather than a W-2 form is not determinative with respect to independent contractor status.
Instead, California’s Labor Code starts with the presumption that a worker is an employee.  An employer can rebut this presumption and the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself.  The California Supreme Court adopted a “multi-factor” or “economic realities” test to use to make the determination.  The crux of this test is whether the employer has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Other factors may come into play depending on the circumstances.

Independent Contractor Status Under the FLSA

Under the Fair Labor Standards Act (More info Here and Here), the factors considered in determining independent contractor status can vary, and while no one set of factors is exclusive, the following factors are generally considered when determining whether an employment relationship exists:

1) The extent to which the work performed is an integral part of the employer’s business.

2) Whether the worker’s managerial skills affect his or her opportunity for profit and loss.

3) The relative investments in facilities and equipment by the worker and the employer.

4) The worker’s skill and initiative.

5) The permanency of the worker’s relationship with the employer.

6) The nature and degree of control by the employer.

Similar to California law, under the FLSA there are certain factors which are immaterial in determining the existence of an employment relationship. For example, a worker cannot sign away his or her status as an employee.  Instead, it is the reality of the working relationship – and not the label given to the relationship in an agreement – that is determinative.  Even a worker that has incorporated a business, or is licensed by a State or local government agency may be considered an employee depending on the employment relationship.

For more information or if you would like to speak to one of our San Francisco employment lawyers please contact us.

21 Reasons to Love San Francisco

Steve Perry from the band Journey said it best “The City By The Bay” is a magical place.  San Franciscans LOVE their city and all that comes with it.  Here are some examples that are obvious:

images1) The 49er’s.  We did not have the best year in 2014, but we believe in our team and don’t give up and know we can make it to the Superbowl!  We will continue to buy the paraphernalia and support our team because we believe.


2) We love our baseball team – THE GIANTS!  We can’t deny that the Giants are #1!  3 world series wins in the past 5 years.  We don’t have a payroll like the Yankee’s, but our players have heart and love for the game like no other!





3) San Franciscans are without a doubt a friendly bunch.  We are laid back and a bit odd at times, but will always lend a hand when needed.  We aren’t afraid to jump in and offer directions or help you cross the street if we see that you are having difficulty.

4) Huge Side Note:  It’s NOT called SAN FRAN.  If you want everyone to know you are tourist than call it “San Fran” (ick).  But take note – it’s mostly called SF or The City.  These are not hard terms to master.  Please learn them and don’t insult yourself or “The City by the Bay.”

images-15) Prepare yourself and embrace the windblown look!  Women with long hair – carry a hair tie on your wrist if you can’t handle eating your hair or just put your hair in a pony before you go out.  There are rare occasions when the wind isn’t whipping, but I wouldn’t count on it – because it can surprise you at any time!  Men with toupee’s – make you sure you it’s held on tightly because that would not be fun to see that flap of hair fly away!


6) Do you know Karl?  Karl is a large part of the community.  Don’t be angry with him.  He’s part of the scenery of San Francisco and it’s foggy.  Most likely you came to walk across the Golden Gate Bridge, but along your walk you realized you couldn’t see much because of the fog – that’s Karl.  Just think of Karl as part of your tour.

7) When you packed for your trip to San Francisco, you probably brought a ton of fun, sexy and fancy clothes.  OOPS – don’t need those.  We are a CASUAL city.  We like to keep it casual here.  It’s rare to see folks in heels and beautiful shimmery dresses or men in suits.  You are in the wrong city if you want that.  We are about comfortable, casual – socially and physically.


8) We don’t really pick apples from tree’s in San Francisco, but rather from other people’s pockets – YIKES!  Watch your iPhones and iPad’s – get it?  Keep them close if you want to keep them.  You have been warned!

9) Your Muni Ticket is something you do NOT want to crumple up or tear.  This thin little piece of paper that feels so slight in your hand is your proof of payment for your return ride.  You can enter the bus from the back – just flash that Muni Ticket so the driver can see it and you’ll be on your way to your next destination…

10) Oh the weather in San Francisco is never quite the same in the different neighborhoods.  It could be windy and foggy in the Inner Richmond District.  Drive a couple of miles and enter Noe Valley another pocket and it’s sunny and warm and the temperature has risen and you start to shed layers.  San Francisco is known for it’s microclimates due to the steep hills and pockets of wind & fog.  If you aren’t happy with the weather, just walk a few blocks and find an area that makes you smile!

11) Why rent a car in San Francisco, when you have UBER, Lyft and Sidecar?  The convenience is unbeatable!  Install the app on your phone, press a button and one of these three drivers will appear will you request.  They will take you to your destination and your credit card will be charged and no cash will be exchanged.  What could be easier.  Make your life easier and don’t rent a car and have to deal with finding parking, worry about drinking while driving, parking tickets, getting lost if you are tourist.  Add the app to your phone and get on with your life and let someone else do the driving for you!

12) Hybrid Cars are everywhere in the city – WOW!  If you rent one (why you would I don’t even know why when you have UBER, Lyft and Sidecar) – be prepared to have a hard time finding where you parked it.  Hybrid Cars are the most populated electric car areas there are – they are everywhere if you own one.  Too many to even count, it’s ridiculous!

13) Have we talked about the Mission Burritos yet?  Oh my – they are the size of an extra large toddler!  The burritos are enormous, tasty and always fresh.  You must come to the Mission District if you want the real deal.  Several places to try in the Mission District – El Farolito, La Taqueria, Gracias Madre and Taqueria Cancun.  Live your life and come to one of these places if you want a real burrito!


14) Have you been to Chinatown?  I bet you think you have, but let me let you in on a little secret – it’s not what you think.  Chinatown is actually on Clement Street.  Some people like to refer to it as the “New Chinatown.”  Clement Street has a plethora of cafes, restaurants, produce shops and businesses.  It’s vibrant with a cultural mix of Asian flavor.  It’s not stagnant with your typical grumpy waiters who throw your order on your table and walk away.  You’ll know now find, Burmese, Persian, French and Thai Food to boot!  Times are changing and people are more friendly – give it a try before you dismiss it.

15) Pugapalooza – what exactly is that?  It’s the first Sunday of every month that is NOT to be missed whether you have a Pug or not!  Have no fear you will have plenty of time for brunch since this meal does not begin until 2:30.


16)  On to brunch – this is one of the most important meals of the week in San Francisco!  It can’t be missed.  It comes with all the fixin’s you could hope for – bloody Marys, Mimosas, eggs (Benedict of every kind(, French toast and of course reliving Saturday night’s escapades…

17) North Beach has an extremely hot spot for Pizza.  Over 2,000 Yelper’s agree – Tony’s Pizza Napoletana.  If you haven’t tried it, you are certainly missing out.  Give it a shot and a least get a slice and see what all the Yelper’s are raving about.


18) Although you think you are in California and it’s going to be warm, that’s not always the case.  San Francisco is definitely an exception to that rule.  San Francisco is a layering city.  The day starts out brisk in the morning (no matter the neighborhood) and then starts to warm up in the afternoon.  But, don’t be fooled – make sure to have that hoodie and hat in tow.  When the sun goes down, hoodie goes on, hat goes on and add a jacket.  You may want to carry gloves too if you are one of people who get the chill to the bone.  Be prepared – not worth getting a cold just to look fashionable!

19) Have you noticed all the bikers on the road?  If you are going to drive a car and not take UBER, Lyft or Sidecar – be careful because cyclists are everywhere!  San Francisco is one of the top 10 bike friendly cities in the United States.  Great way to get around the city, but just be careful when you are opening your car door and try to avoid a collision with biker’s.


20) If you do have a car – USE YOUR PARKING BRAKE ALWAYS! 

21) If you want to rent in San Francisco – expect to pay A LOT!  Rent is OUT OF CONTROL!  A room in a one bedroom can cost $1,600 – that’s just a room.  People are paying this amount because they want to live in the City By The Bay.  You can’t quite blame them, but let’s hope this break soon and life goes back to normalcy where landlords becomes decent human beings again.

Come to San Francisco and enjoy all the wonderful things our city has to offer.  We are a friendly, vibrant city full of life and charm!  You won’t know unless you experience it first hand yourself!  We welcome you with open arms!

Retaliation Cases Are Favored by the EEOC

A recent report from the Equal Employment Opportunity Commission (EEOC) reveal that retaliation cases are preferred by the agency.   The EEOC enforces the federal laws that make it illegal to discriminate or retaliate against a job applicant or employee.

The Statistics Reveal That The EEOC Does Not File Lawsuits to Enforce the Harassment and Discrimination Laws

The most revealing statistic was the embarrassingly low number of lawsuits filed by the EEOC.  The EEOC’s enforcement duties include the duty to file lawsuits on behalf of employees.  However, of the 88,778 charges there were only 167 lawsuits filed.  That means your chances of the EEOC filing a lawsuit on your behalf is .0019%.
Employees who have suffered harassment or discrimination and who are hoping to rely on the EEOC to vindicate their rights are in for a shock.  Instead, actual enforcement of the discrimination and harassment laws the EEOC is responsible for is left to the employee.  The employment attorneys at the Ottinger firm are available to help you in your efforts.  If you have suffered discrimination or harassment please contact us or submit a free case evaluation.

Retaliation Charges Lead the Way

Another interesting aspect of the report was that the largest percentage of charges – 42.8 percent of the 88,778 total charges – were for retaliation.  Sex discrimination came in at 29.3 percent of charges, followed by disability discrimination at 28.6 percent, age discrimination at 23.2 percent, national origin at 10.8 percent and religious discrimination at 4 percent. Color claims accounted for 3.1 percent of charges, Equal Pay Act claims comprised 1.1 percent and Genetic Information Non-Discrimination Act allegations made up 0.4 percent. (The figures add up to more than 100 percent because some charges allege discrimination on multiple basis.)  This is the first year that retaliation charges were the most prevalent.
The rising number of retaliation claims is concerning for employees.  We hear from a startling number of San Francisco employees who have suffered employment discrimination who are afraid to complain because they fear retaliation from their employers.  These fears persist despite many laws which specifically prohibit retaliation.  If you have questions about your employment rights or think you might be retaliated against please contact us.

San Francisco and other Bay Area Employees Don’t Have It Any Better

California’s Department of Fair Employment and Housing (DFEH) is a statewide administrative agency that enforces the Fair Employment and Housing Act (FEHA).  The FEHA, like its federal counterpart the EEOC, protects all San Francisco, Bay Area, and California employees from discrimination and harassment on the basis of age (40 and over), ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical leave, disability (mental and physical) including HIV and AIDS, gender, gender expression, gender identity, genetic information, marital status, medical condition (cancer and genetic characteristics), national origin, race, sex (including pregnancy, childbirth, breastfeeding, and medical conditions related to pregnancy, childbirth or breastfeeding) and sexual orientation.
There were 18,480 charges filed with the DFEH in 2013 (the last year statistics are available for).  Like the EEOC, there were only a small number of lawsuits filed by the DFEH.  Of the 18,480 charges filed, only 40 lawsuits were filed by the DFEH.  As with the EEOC, for San Francisco and other Bay Area employees enforcement of the prohibitions against employment discrimination and harassment is ultimately left to the employee.  It is the goal of the Ottinger firm to help you with your efforts.
Please contact us if you are a San Francisco or Bay Area employee who has suffered harassment or discrimination at work.

California School District Under Fire For Discriminating Against Students With Disabilities

Although Jurupa Valley school officials say the district’s functional skills program is designed to help students with learning disabilities get the practical skills they need to take care of themselves when they enter adulthood, one of the activities students were given has enraged some California parents.

Carmen Wells, the mother of an autistic child in the program called the exercise “disgusting” when she learned that her son was told to dig through trash wearing gloves and an apron. The student, who attends Patriot High School, was part of a group told to sort through trash in order to find cans and bottles for money.

“The shame and the embarrassment for the children, it hurts,” Wells told CBS Los Angeles in an interview.

According to members of the school board, they were not aware of this specific activity given to Patriot High School students , and that part of the program was subsequently suspended.

“I personally apologize to any students who may have been humiliated,” said Elliott Duchon, the Jurupa Unified School District Superintendent, during a school board meeting. “Our teachers care very much about the students they teach.”

How the Law Protects Californians With Disabilities

Just as parents are outraged at the way their children were treated at Patriot High School, California law has an equally dim view of disability discrimination against workers with disabilities. Under the Fair Employment and Housing Act, it is illegal to use a candidate’s disability against them during the hiring process. Under this legislation, employers cannot ask about a candidate’s disability status during an interview, nor can they require a candidate to submit a medical history during the hiring process. An employer may ask prospective workers to undergo a medical examination, but only if it’s relevant to the job requirements and the candidate has been offered a position.

And the protections don’t end when an employee is hired. California workers with disabilities cannot be subjected to discrimination and abuse on the job, nor can they be fired or denied a promotion because of their medical condition. In addition, the law requires employers to provide reasonable accommodations for workers with disabilities. For example, these workers may need special equipment to help them perform their job duties, or a flexible work schedule that allows them to go to doctor’s appointments. In some cases, workers with disabilities may also need to have their job duties adjusted because of their medical challenges.

AIDS Education in the Workplace

Under the law, AIDS and HIV are considered a disability. As a result, workers cannot be discriminated against or fired because they have HIV or AIDS. In fact, as long as these employees are able to perform the duties of their job, they cannot be asked to leave because of their condition.

The law also mandates that organizations educate their workers about HIV and AIDS, in order to prevent discrimination against workers with these conditions. In this training, employees should be given information that will put their minds at ease if they are afraid of contracting the diseases. California law says workers should be taught how HIV and AIDS are transmitted so they understand they cannot get the diseases based on contact during the normal course of business.


NY Daily News


Ottinger Files: Trends in Employment Law

 February 5, 2015

Quote of the Day:

“The sun don’t shine forever/But as long as its here than we might as shine together.” Puff Daddy, Song: “Victory” (1997); Album: No Way Out

 New Trends in Employment Lawsuits

What Happened?

Each year the EEOC (Equal Employment Opportunity Commission) releases statistics about the kinds of cases filed the prior year.   The EEOC just released their numbers for 2014.

Why does it Matter?

Employment lawyers like to analyze these numbers to see if they can find meaning.  The statistics show that work place lawsuits are declining.  In 2014, there were 5,000 fewer claims filed than in 2013.  One employment attorney suspects that the drop in complaints was caused by the improved economy.

The EEOC statistics also show a slow rise in retaliation claims.  In 1997, retaliation cases constituted 22.6% of all filings.   In 2014, that number doubled and retaliation cases now make up 42.8% of all claims.   It is hard to say why retaliation claims are increasing.  It could be a recognition of the fact that retaliation cases are generally easier to win than employment discrimination cases and produce higher verdicts and settlements.

The File:  If you are going to file an employment suit, your odds are better if you bring a retaliation claim.

New York City Law Firm Guilty of Sex Harassment 

What Happened?

This afternoon, a federal jury in New York found Faruqi & Faruqi guilty of sexual harassment.

Why does it Matter?

This case has received massive media coverage because the allegations are something you would expect to see on “The Good Wife” or “Suits.”  As on Television, an attorney apparently has too much to drink at a social gathering and tries to have sex with another lawyer in the office.  But that’s TV – not real life.  Apparently, one of the partners did not know the differnce between reality and television.

The jury rendered a mild verdict of $90,000.  But it is not over yet.  The jury also found that the law firm is liable for punitive damages in an amount to be determined later.  In New York, puntive damages generally cannot exceed twice the amount of the verdict.

The File:  This is really just a slap on the wrist for Faruqi & Faruqi.


What to think about making the transition from friend to boss

You start off working in a group and develop friendships with the team.  Eventually people start to leave the company or move to different departments.  Do you ever think that one of the members of the group will become your boss?  Just ask the CEO – I’m sure it’s happened to one of them.  Side note, one of these people happens to become your friend along the way before your promotion.  This person was the one you ate lunch with and had drinks with after work.  Now this person is reporting into you.  You are telling them what to do, what her work schedule is, when she can take vacation and when she has done something wrong at work.  How did this 360 turn happen?  Why did you get the promotion and she didn’t?  This happens more often than you realize.  Perhaps your friend should have paid more attention so the shoe was on the other foot.  Now that you are manager, don’t get sloppy.  Stay on your toes because the tide can turn and your friend might be in the drivers seat before you know it.

What to think about the Flu at the Office

The flu seems to be getting worse every year.  Or are people just not taking care of themselves – eating well, dressing in the proper clothing, taking their vitamins or even just washing their hands?  Regardless, people come into work when they feel the early signs of a cold, which turns into the flu 9 times out of 10.  The office will survive without you for a couple of days.  You can always call in, get on line and skype with your co-workers, clients and vendors or even do a google hang-out on air.  Is it worth it to infect your co-workers just because you MUST BE PRESENT for that meeting that is so crucial?  It’s come to the point where co-workers are raising the war on germs in the winter and fighting the battles in the office.  Co-workers are like sharks.  They are circling employee’s desks, phones, light switches, door handles and going to extremes to avoid their sick workers germs.  If a potential worker is seen coughing or touching anything in a common workspace – then game on.  This sick co-worker is now infected and quarantined to a special room that will be equipped witth gifts of face masks, tissues and disinfectants.  You may also notice that your co-workers will lean away from you and hold their breath and STRONGLY suggest you go home.  Nobody wants to get sick.  Being sick, may not just infect your co-workers, but also their family and their friends in turn.  Be thoughtful: if you are feeling the slighest bit under the weather, call out sick, work from home – just don’t come in until you feel 100%.