Understand Your Rights. Solve Your Legal Problems
During the 3 November election, California residents were given the opportunity to shape the future of the gig economy in America by voting on the Proposition 22 ballot measure. Uber, Lyft, and DoorDash spent over $205 million on the “Yes on 22” campaign – making it the most expensive ballot measure in California’s history – in the name of overturning a key component of the state’s labour laws. Now that it has been legally approved with 58% of the vote, what consequences will there be for the gig economy and companies that rely on it?
In its most basic sense, Prop 22 provides an alternative model to “AB 5”, a California law that was signed in September 2019. The law required companies to use an “ABC test” to classify their workers, meaning that workers could only be classified as independent contractors if they were: A) free from the company’s control; B) conducting work that was not key to the company’s business; and C) maintaining their own independent business in the same industry. If one or all of those conditions were not met, then companies would have to classify their workers as employees. This posed a critical issue to the aforementioned ride-hailing companies and several other organisations that had built their business models on the premise that their workers were treated as independent contractors.
When designated as independent contractors, workers have a different relationship with their employer and are ineligible for several benefits that a full employee would be entitled to. Employers are not responsible for employers’ costs including health insurance, unemployment insurance, Social Security, paid sick days and overtime. When working for ride-hailing companies, contracted drivers are expected to supply and maintain their own gas; Uber and Lyft do not pay for workers’ car repairs, petrol or similar expenses. At the same time, the companies retain their ability to set drivers’ rates and the commission that they pay themselves, usually in the range of 20% to 30%.
... Workers have a different relationship with their employer and are ineligible for several benefits that a full employee would be entitled to.
Though their designation as contractors will not change under Proposition 22, the new law will guarantee new benefits to those working for ride-hailing companies. A wage floor will be implemented to guarantee that drivers receive at least 120% of the local or statewide minimum wage, along with other limited benefits such as car insurance and health subsidies consistent with employer contributions under the Affordable Care Act for drivers working 15 or more hours per week. They will also retain a wide degree of freedom to choose when, where and how much they work.
Further to the above specifications, Prop 22 includes a provision requiring a seven-eighths majority of the California state legislature to agree upon any amendment, all but ensuring the measure cannot be overturned.
Legal scrutiny of the practicality of the new law is now underway. Some analysts have raised concerns about the minimum wage protection offered in the measure, which applies only to an employee’s “engaged time”, meaning time in which the driver is on a trip with a passenger or travelling to pick up a passenger. A study from the UC Berkeley Labor Center estimates that workers could be legally allowed to make only $5.64 per hour under the stated conditions.
It is estimated that, moving forwards, workers will no longer be able to effectively seek restitution for wage theft against gig economy companies, as these disputes will largely be solved through private arbitration. As California proposes legislation mandating a greater use of electric vehicles on ride-hailing trips, the burden of changing vehicle types is also likely to fall on individual drivers rather than their employers.
Since the success of the "Yes on 22" campaign, Lyft and DoorDash have signaled their intention to bring the model it presents to other states.
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“Lyft stands ready to work with all interested parties, including drivers, labor unions and policymakers, to build a stronger safety net for gig workers in the US," Anthony Foxx, chief policy offer at Lyft, stated after Prop 22’s approval by voters.
Meanwhile, opposition groups such as Gig Workers Rising have declared that they will continue to work towards drivers’ classification as full employees entitled to the accompanying benefits.
We can expect similar ballot measures to be advanced in different states, potentially also by digital companies with a heavy reliance on contractors. In the meantime, the full scope of Prop 22’s practical effects will only be realized when it goes into effect on December 22.
As an expert in this field, he shares with us how lawyers should approach such disputes, offering advice on how to tackle these cases.
It is a widespread occurrence in regions like mine, the San Francisco Bay Area, where a shortage of housing and an ever-growing list of regulations has driven a deeper divide between landlords and tenants. In many larger cities, and now even statewide in California, new laws limit when and why a tenant can be evicted. This is often in addition to laws regulating rent increases. Small "mom and pop" landlords frequently find themselves frustrated with rent control or problem tenants and try to get creative with getting those tenants out, without fully grasping the law. Meanwhile, tenants are getting smarter and have more legal resources. They also learn that they often hold the upper hand in legal matters, mainly when a landlord has acted in bad faith to recover possession due to trebling damages and automatic attorney's fees.
Whether a landlord charges $20 a month or $20,000 a month for rent, an implied part of every rental contract is that the unit is maintained in a habitable condition through the term of the rental agreement. Common breaches of this include issues of mould, vermin, and deteriorated conditions. A breach can also come from code violations, like an electrical hazard or a lack of proper heating. Again, smaller landlords often have less property management experience and may be less aware of their state or regional standards, but that is no excuse. Sadly, a very small number of malicious landlords have been known to let living conditions worsen over time to coerce tenants out through a constructive eviction. This can become very litigious territory as it crosses over into the realm of wrongful eviction.
Many new landlords with property in rent or eviction-controlled jurisdictions often mistakenly think they are exempt from such regulations based on an incomplete understanding of the law.
Membership in a state or regional rental housing association can be a smart move for landlords to educate themselves. These organizations usually do a much better job of staying on top of the changing laws and standards than the average landlord can do themselves. Tenants should encourage their landlords to join to ensure that their housing provider understands all their responsibilities under the law. Communication and documentation are also essential for both parties. You want to show that you did everything in your best effort to resolve the issue. Landlords should know their rental units' condition and quickly resolve any reported issues as they arise. They should also understand the proper notice requirements: the more open the communication channel is, the less likely it is that problems or tensions will arise. Tenants should know that, while laws are increasingly in their favour, they do have obligations they must uphold, and should not ignore requests from their landlords for reasonable, periodic inspections of the unit. Tenants should communicate their issues in writing and bring problems to the property owner or management's attention. If it does come down to it, evicting a tenant should never be taken lightly and should not be done without engaging a competent landlord-tenant attorney to ensure it is done legally and properly.
They vary by jurisdiction and are constantly expanding. California has a patchwork of laws that differ from one jurisdiction to another. For example, just over the past year in California, we have seen new laws regulating rent increases, required just causes for eviction, more tenant protection laws, and changes to security deposit rules. Many new landlords with property in rent or eviction-controlled jurisdictions often mistakenly think they are exempt from such regulations based on an incomplete understanding of the law. California's Tenant Protection Act of 2019 goes even further in establishing that a landlord who meets a specific exemption for rent or eviction control is not exempt unless it is stated in writing in the rental agreement. We see this more and more, including with recent COVID-19 eviction moratoriums, where a landlord's rights often hinge on proper disclosure and written notification on or before a specific date. This is just another reason why the landlord should not skimp on legal counsel in these sensitive areas.
The earlier you bring an expert into your case, the sooner they can help you size up the situation.
Rental housing has perhaps been one of the most affected areas by COVID-19. There have now been multiple federal, state, and local eviction moratoriums passed to protect renters during this time. In many jurisdictions, a landlord's options for eviction right now are minimal. The most common reason for eviction, nonpayment of rent, cannot currently be used as a ground for eviction. This puts some landlords in a severe financial predicament as back due rent is piling up, and bills and mortgages still need to be paid. We expect to see a rise in small claims court activity as landlords attempt to recover this debt in small claims court, outside of the typical unlawful detainer process. Still, many have their doubts about how successful landlords will be in this arena. Those who can come to agreeable terms with their tenants who are genuinely struggling to make rent may find themselves in a much better position than those trying to play hardball right now. Nonetheless, we will likely see many smaller landlords get out of the rental housing business due to this pandemic, further consolidating the industry into larger investors' hands with deeper pockets.
The earlier you bring an expert into your case, the sooner they can help you size up the situation. There is no perfect case. Experts act as consultants at the early phase, but they are also gathering information that will be extremely useful down the road should the case continue to trial. Trying to control costs is just a reality of the field. Still, if you try to limit your expert's exposure too narrowly on only some aspects of the case, you may prevent them from adequately understanding the full picture and setting them up for failure. Waiting until the last minute to disclose experts is also not recommended. This puts the attorney in a difficult position where the expert may have a negative opinion on their case. Removal of your expert's designation due to them pointing out significant flaws in the case may be difficult. Lastly, spending extra time with your expert to prepare them for depositions and trials is essential. A well-prepared expert is necessary. This small additional cost can often make or break a case.
Steven Edrington
1901 Harrison St, 13th Floor
Oakland, CA 94617
(510) 749-4880
info@edringtonandassociates.com
www.edringtonandassociates.com
Steve has over 25 years of experience as a landlord, property manager, real estate broker, and developer. He formerly served as a lobbyist and Executive Director for the Rental Housing Association of Northern Alameda County (RHANAC), now East Bay Rental Housing Association (EBRHA). He specializes in expert witness testimony for wrongful eviction, warranty of habitability, standard of care, and damages. In addition, he helps property owners navigate their local jurisdictions on issues related to code enforcement, illegal units, notices of violation, condo conversions, and accessory dwelling units. Steve is a Certified Commercial Investment Member (CCIM), Certified Property Manager (CPM), and an ICC Residential Building Code Inspector.
Edrington and Associates is a full-service real estate consulting firm serving Bay Area property owners on a variety of projects, as well as attorneys through our expert witness services.
Immigration law firm Fragomen, Del Rey, Bernsen & Loewy confirmed a data breach that allowed an unauthorised third party to access a file containing personal information related to a “limited number” of employees at Google, one of its clients.
The firm filed a notice disclosing the data breach to the California attorney general’s office on Friday, saying that it had been found last month while the company was investigating suspicious activity within its network.
"While our investigation is ongoing, we discovered that an unauthorized third party gained access to a single file containing personal information relating to I-9 employment verification services," Fragomen wrote in its notice to persons affected by the breach. These persons were “a discrete number of Googlers” and former Google employees.
“While we have no evidence of any further misuse, we have taken steps to remediate the incident and have verified it was an isolated incident that did not involve our general client data systems," the firm continued, adding that the incident was not indicative of its “robust” cybersecurity guidelines and practices.
All companies operating in the US are required to maintain a Form I-9 file on each of its employees to ensure that they are legally allowed to work in the country and are not subject to restrictive immigration rules. These files can contain sensitive information, including passports, driver’s licenses, ID cards and other identifiable data, potentially exposing their owners to identity fraud.
Fragomen declined to clarify how many Google employees were affected by the breach and what kind of information was accessed. When more than 500 California-based employees are affected by a data breach, their employer is required to submit a notice of the incident with the attorney general’s office.
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Cyberattacks have grown in scope and frequency since the beginning of the year, with law firms and the sensitive information they hold making tempting targets for fraudsters. Earlier this month, Chicago-based Am Law 100 firm Seyfarth Shaw experienced a ransomware attack that shut down several of its systems, and in May the London-based firm Grubman Shire Meiselas & Sacks was the victim of an attack that saw a trove of information on its celebrity clients seized.
In a blow to ridesharing companies, a California appeals court on Thursday unanimously ruled against Uber Technologies Inc and Lyft Inc, saying that they must classify their drivers as full employees rather than independent contractors.
The panel also found that the state’s case against Uber and Lyft is likely to succeed on its merits, a further blow against the companies and a reaffirmation of the importance of the Proposition 22 ballot measure. If passed by voters in November, the measure would make app-based drivers exempt from California’s new employee classification law.
The ruling marks a significant development in an ongoing dispute regarding the status of drivers employed by ride-sharing companies in California.
In August, a preliminary injunction was issued against Uber and Lyft to prevent them from classifying their drivers as contractors, which the companies called “unprecedented” and “radical” in various filings.
"Although the business context may be relatively new, we conclude that the injunction was properly issued in accordance with enduring principles of equity,” the panel said. “It is broad in scope, no doubt, but so too is the scale of the alleged violations."
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Uber and Lyft said in a statement that they were considering legal options available, including an appeal. “This ruling makes it more urgent than ever for voters to stand with drivers and vote yes on Prop. 22,” Lyft said.
Uber’s statement added that, without if Proposition 22 were rejected, “drivers will be prevented from continuing to work as independent contractors, putting hundreds of thousands of Californians out of work and likely shutting down ridesharing throughout much of the state.”
Judge Ethan Schulman has issued a preliminary injunction to prevent Uber and Lyft from classifying their drivers as contracted freelancers rather than paid employees.
The decision came in response to a lawsuit filed against the companies in May by the state of California, alleging that both Uber and Lyft misclassified their employees under the state’s Assembly B5 labour law (AB5), which was passed in 2019 and took effect on 1 January 2020.
Under AB5, workers in the California gig economy are entitled to sick pay and holidays, and it is more difficult for companies to classify as contractors instead of employees – who are entitled to minimum wage and benefits.
While Uber has made changes to its business model since AB5 took effect, including allowing drivers to set their own rates, Schulman was not persuaded that their drivers qualified as contractors rather than employees. In his ruling, he cited one of the three elements that AB5 presents as criteria for classifying workers as contractors: that they perform duties outside the company’s regular business.
He wrote, “it's this simple: defendants' drivers do not perform work that is 'outside the usual course' of their businesses."
Uber and Lyft were granted 10 days to appeal the decision, and an Uber spokesperson has told The Guardian that the company intends to appeal immediately.
“When over 3 million Californians are without a job, our elected leaders should be focused on creating work, not trying to shut down an entire industry during an economic depression,” he said.
The significance of the ruling has been commented upon by legal experts. Mike Feuer, Los Angeles City Attorney, described the decision as “a resounding victory” for affected drivers.
Dowling Aaron, a Fresno-based full-service law firm that operates four offices in California, and Fennemore Craig, a firm with six offices in Arizona, Nevada and Colorado, have announced their completion of a deal to merge.
The combined law firm will operate primarily out of California, and will become effective on 1 October. Its merged staff will consist of around 350 lawyers and allied legal professionals.
Fennemore Craig CEO James Goodnow hailed the success of the merger, calling it a “slam dunk” for both firms.
“We’re thrilled to join forces with Dowling Aaron, with both firms coming from a position of strength and unique alignment in business operations, practices, client bases, and cultures,” he said. “Overnight we’ll be able to serve all of our clients in ways we never could.”
Leigh Burnside, President of Dowling Aaron, also described her enthusiasm at the deal. “At a point in our working lives where good news can sometimes be hard to find, I’m happy to announce this merger as a signal to our clients that we’re committed to them today and into the future,” she said.
Goodnow will lead the newly combined Fennemore Craig Dowling Aaron. Burnside will sit on the firm’s Management Committee.
Amazon and its third-party sellers have been accused of violating a Californian law for price gouging as the cost of some essential items reportedly increased by at least 500%.
Lawyers at Hagens Berman filed a proposed class action stating that Amazon had violated the law that bars price increases of more than 10% during declared emergencies on essential goods. Such items would typically include food, cleaning materials, and medical supplies - all of which were bought by customers amidst a mass panic.
These increases as reported on Bloomberg “are flagrantly unlawful under California penal law, which makes presumptively illegal any price increase exceeding 10% during a state or local emergency,” Victoria Ballinger and Mary McQueen allege in a suit filed in the U.S. District Court for the Northern District of California.
Despite the allegations, Amazon stated on their website, that "Amazon has zero tolerance for price gouging and longstanding policies and systems to prevent this harmful practice.
"Amazon has already removed well over half a million [of] offers from our stores due to coronavirus-based price gouging. We have suspended more than 3,900 selling accounts in our U.S. store alone for violating our fair pricing policies. We began taking these enforcement actions promptly upon discovering this kind of misconduct, and we’ve been partnering directly with law enforcement agencies to combat price gougers and hold them accountable."
The online retailer has seen sales increase, with some items being up more than 1,000%. With customers avoiding brick and mortar stores, they opted for Amazon, where some supplies such as face masks, jumped by more than 500% in price; masks went from less than $20, up to £120.
Medication for colds, according to the plaintiffs, hiked up from $4.65 to $35.99, an increase of 674% and black beans - a staple food item that was popular in demand amongst other tinned food - went from $3.17 to $24.50, an increase of 672%.
Despite these claims, Amazon, on the 23 March previously announced that they have "dynamic, automated systems in place that locate and remove unfairly priced items."
They claim to have deployed a dedicated team that’s "working continuously to identify and investigate unfairly priced products that are in high demand", such as protective masks and hand sanitizer.
"If we find a price that violates our policy, we remove the offer and take swift action against bad actors engaged in demonstrated misconduct, including suspending or terminating their selling accounts and referring them to law enforcement agencies for prosecution under relevant laws", the retail giant posted on their blog.
Nonetheless, the complainants are accusing Amazon of violating California's Unfair Competition Law, of negligence and negligence per se and unjust enrichment. They are thus seeking: damages, restitution, public injunctive relief, punitive damages, and attorneys’ fees and costs.
This is not the first time Amazon has been under scrutiny during the coronavirus crisis. In France, the company suspended its distribution activity after a court ruled it had to stop all non-essential deliveries.
The ruling followed after a complaint filed by a French labour union accused the online delivery giant of endangering the lives of workers. Amazon said it was "perplexed" by the court ruling which ordered the company to restrict its local delivery operations to essential goods only, or face a penalty of 1 million euros ($1.1 million) for each day it failed to comply.
Citing the high penalties imposed by the court and the "complexity inherent in our logistic activities," Amazon - which plans to appeal the ruling- said it would temporarily suspend activities in their distribution centres "despite the huge investment that we have made to ensure and strengthen [by] additional measures the safety of our employees who remained mobilized during this crisis."
The online retailer had stated they have implemented safety measures including "temperature checks, masks, and enforced social distancing which [have] received the approval of health and safety representatives at multiple sites." They were set to re-open in France on 22 April, after a two-day delay due to the pending appeal.
The company also faced similar criticism in the US, over the health and safety of its employees. Earlier this month, Amazon responded that they may begin firing employees that violate social distancing guidelines and policies that were put in place in response to the pandemic crisis; employees claim, however, that the demands of their job make it impossible for them to comply with the policy.
Image credits: jetcityimage
A Californian jury’s verdict last Friday means Uber could be facing a huge lawsuit fee on the back of claims Kevin Halpern, supposed inventor of the business idea behind Uber, has made against the firm.
Halpern accused Uber of stealing the ideas of his now-defunct company Celluride Wireless Inc., and misappropriating trade secrets. The San Francisco Superior Court jury has now found the claim to be valid, and timely (not beyond the time bounds to take legal action).
Halpern says he was developing Celluride as far back as 2002, implementing P2P services, rider to passenger, to be summoned via mobile devices on the spot; an idea that sounds a lot like Uber. He says he shared his business plans and ideas with Uber’s co-Founder Travis Kalanick in 2006, under the premise they would remain secret. Uber was then launched by Kalanick in 2010.
A second jury will now be tasked with determining whether Uber truly misappropriated Halpern’s trade secrets and whether the firm owes Halpern damages.
"We are very pleased that the jury saw through Uber’s misleading tactics and that Kevin Halpern will now be able to prove once and for all that Travis Kalanick and the other defendants started Uber with his trade secrets," said Alan A. Greenberg of Greenberg Gross LLP, speaking with Law360.
On the back of last week’s verdict, an Uber spokesperson had this to say: "Today’s decision did not address the merits, and we look forward to defending ourselves to the fullest during the next phase of the case."
AB 218 was signed by Governor Gavin Newsom on October 13, 2019 and will take effect on January 1, 2020.
Below Natalie Weatherford and Sonya Ostovar of Taylor & Ring, explain how this new bill will impact victims of childhood sexual abuse and it will spearhead change moving forward.
For years, medical professionals, sexual abuse survivors and their families have advocated for an extended statute of limitations in civil childhood sexual abuse cases due to the long delays in disclosure of abuse by survivors. Delayed disclosure is very common and relates to the shame, fear and self-blame that childhood sexual abuse survivors experience following their abuse. Many survivors of childhood abuse do not disclose the abuse to anyone for years and some repress the abuse memories altogether.
Prior to the enactment of AB 218, victims who did not disclose their abuse right away were precluding from pursuing civil lawsuits against their abuser, and the institutions or persons that had a duty to protect them from their abuser. Beginning on January 1, 2020, these victims will have a second chance to bring their claims.
AB 218 provides several, complex changes to the existing requirements for pursuing civil childhood sexual abuse claims, a brief summary of the new law’s most impactful changes is below.
The definition of childhood sexual abuse will be expanded to include “childhood sexual assault” which is inclusive of crimes not previously recognized as sexual abuse.
The statute of limitation for adult survivors of childhood sexual assault will be lengthened to 22 years after the age of majority, up until the survivor reaches the age of 40, or 5 years after the survivor discovers (or reasonably should have discovered) the psychological injury caused from the childhood sexual assault, whichever date is later.
The requirements for filing a childhood sexual assault claim pursuant to CCP 340.1 will be broadened by AB 218. A plaintiff over the age of 40 can pursue a civil lawsuit if: “(a) the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or (b) the person or entity failed to take reasonable steps or to implement safeguards to avoid acts of childhood sexual assault.”
Childhood sexual assault survivors will be exempted from the Government Tort Claims presentation requirements for sexual assault claims against public entities made pursuant to California Code of Civil Procedure section 340.1
Claims for childhood sexual assault will be revived for a period of 3 years after January 1, 2020, where the claim has not been litigated to finality, and would have otherwise been barred as of January 1, 2020 because the applicable statute of limitations, government claims presentation requirement, or any other timeline expired.
And finally, AB 218 allows for recovery of treble damages against defendants who are found to have covered up the sexual assault of a minor.
The accountability created by AB 218 is a meaningful step towards allowing justice to survivors who had been previously barred from confronting their abusers in civil court. What do you think? Let us know in the comments below.
Before your time expires, learn more about the timeline and what it means for your case.
Few legal questions have simple answers. The amount of time you have to file a civil lawsuit depends on your situation. In California, there is a statute of limitations on personal injury cases. But the rules vary depending on your situation. Your best chance at learning your timeline is to speak with a personal injury lawyer.
For most personal injury claims, the deadline is two years. The time begins on the day of the accident or the date on which you discover the injury. However, claims for property damage have a longer statute of limitations. If your claim is only for recovering damaged property, you have three years to file.
You can file a personal injury claim against the government. However, this has a different statute of limitations than a regular claim. Typically, you only have six months to start the claims process. Then, the government has a 45-day period to decide how they will handle your claim.
If the government denies your claim, you have six months to file a lawsuit. But if they don’t respond, you automatically get two years to initiate the lawsuit. Claims against the government can be extremely difficult and comply with a unique set of rules. Therefore, you should only work with an attorney who has experience handling claims involving the government.
Claims against public entities could have even shorter deadlines. For instance, you could have a claim against the city for an injury you experienced on a city bus. In this case, the city may only give you three months to start the claims process.
There are some claims that could qualify you for an exception to the statute of limitations. However, this is rare.
One exception could occur if a minor was injured in the accident. In this case, a parent could file a claim for the child. Or, the child has until two years after they turn 18 to file the claim. The statute of limitations does not start until the child turn 18. Therefore, a child who is 10 at the time of the accident has 10 years to file.
Another exception could be in the case of medical malpractice. At times, the victims don’t realize the harm they experienced until months or years after the incident. Depending on the specifics of your situation, you may be able to file two years after you learn of the injury. Once again, you should speak to a legal professional.
It’s important to realize that insurance claims differ greatly from personal injury claims. If you’re in a car accident, you should file an insurance claim as soon as possible. Typically, insurance companies only allow claimants to file several days or weeks after the accident.
If you have questions about how to handle your claim, you should speak with a personal injury lawyer. They can tell you more about your timeline for filing. Additionally, they can handle your case and work towards getting you the compensation you want and need.
