The digital age has blurred the lines between home and office, changing both how we define work and the employee-employer relationship. But, just because the tools or titles may have changed, it doesn’t mean that employee rights have too.
Here are common ways that employers may be violating labor laws under the guise of flexibility, simplicity, and forward thinking.
1. Posting job descriptions that target “digital natives”
By requesting only digital natives, companies are essentially saying “over 40 need not apply.”
If a job posting specified a gender, race, or sexual orientation, it would likely be flagged immediately for violating workplace discrimination laws. But when companies specifically recruit millennials, sometimes going as far as to state how many years out of college a candidate should be, they are discriminating against older employees.
Some companies use more veiled attempts to find younger candidates, inserting “digital native” into the list of job requirements. The Oxford English Dictionary defines the term as “a person born or brought up during the age of digital technology.” This contrasts with “digital immigrants” who were born before the digital age. By requesting only digital natives, companies are essentially saying “over 40 need not apply.”
Similarly, if companies primarily recruit on college campuses, this prevents older job candidates from applying. PricewaterhouseCoopers was hit with an age discrimination lawsuit earlier this year for doing just that.
The Age Discrimination in Employment Act (ADEA) protects job candidates and employees who are 40 years or older from age discrimination, including decisions that affect hiring, firing, promotions, layoffs, benefits, and training.
The Equal Employment Opportunity Commission (EEOC) says that terms like “recent college grad” violate ADEA. In 2013, Facebook settled a lawsuit with the California Fair Employment and Housing Department for specifying the college graduation year of desired job applicants.
2. Hiring independent contractors instead of employees
Companies like Uber, Lyft, and Grubhub argue that the app-based economy mutually benefits workers and customers. Workers enjoy the flexibility of determining their own schedules as independent contractors, they say, but “flexibility” may be a nice term they use to dodge their legal responsibilities.
By classifying these drivers, delivery workers, and others as independent contractors, companies aren’t required to provide workers benefits like minimum wage, overtime, and unemployment. This arrangement is O.K. if employees enjoyed all the benefits of being independent contractors, but instead they must adhere to strict corporate guidelines and rates, all without the security that comes with regular employment.
There is no clear-cut definition for an employee, but the Department of Labor (DOL) emphasizes a wide interpretation of the Fair Labor Standards Act (FLSA), the act that guarantees minimum wage and overtime. “Most workers are employees under the FLSA’s broad definitions,” the DOL recently said.
As regulatory agencies continue to clarify the employer-employee relationship, many workers are taking matters into their own hands by filing class action lawsuits. Uber recently tried to settle two driver misclassification lawsuits in California and Massachusetts for $100 million, but U.S. District Judge Edward Chen argued the sum was too small in a case that could result in $1 billion in penalties.
3. Using on-call shifts rather than predictable schedules
Even if a worker is considered an employee, they may still fall victim to flexible work arrangements. “On-call” work is a practice that is popular in the retail and service industries. It’s an arrangement that allows employers to cut back on the number of full-time employees by slotting in part-time workers as necessary.
When workers are on-call, they often have to call ahead or even show up to work not knowing if they will be needed. This results in unpredictable schedules, wasted commutes, fluctuating earnings, and scheduling nightmares that make things like child care difficult to arrange.
According to the Economic Policy Institute, 17% of the workforce has on-call or irregular schedules—a group that is disproportionately made up of the lowest paid workers.
Some states like California, New York, and New Jersey have laws that protect employees against last-minute shift cancellations. The California Fair Scheduling Act requires that employees are compensated for one hour of work if their shift is canceled within less than one week, and half of their scheduled shift’s wages if the cancellation happens within less than 24 hours’ notice. In New York, employees are entitled to four hours of work if they report (either physically, or via the phone or text) for a scheduled shift.
Employees in the app-based economy are also hurt by on-call work. A class action lawsuit in Pennsylvania argues that Uber drivers should be paid minimum wage for the time they are logged into the app waiting for passengers.
4. Violating your digital privacy
One employer allegedly read an employee’s personal emails over an 18-month period.
If you are working with company tools during work hours, it’s usually within an employer’s legal rights to access your files, web history, and work email. But, when employees work outside of the office, use their personal devices for work email, or even access personal email from a corporate device, that’s when things get complicated.
Some employees have successfully won lawsuits against their employers for invasion of privacy. One 2013 case involved a woman who forgot to delete her personal email on her company Blackberry. Her employer allegedly read her personal emails over an 18-month period before the employee realized it. The court ruled in her favor.
In addition to monitoring browsing history and email, some companies are even using GPS software on corporate-owned digital devices and cars to track employee whereabouts and productivity. This can quickly become illegal once employees are off the clock.
In 2015, Myrna Arias sued her former employer, Intermex Wire Transfers, for allegedly firing her when she deleted the GPS app from her company phone. Arias argued the app was monitoring her whereabouts outside of work hours. The case was settled privately.
The Stored Communications Act (SCA) prohibits companies from accessing electronic communications without authorization unless they provided the service.
States like Connecticut and Delaware also require that companies receive employee consent before using GPS tracking. California, Texas, Minnesota, and Tennessee all have laws that prohibit mobile tracking of other individuals—regardless if they are employees—without their consent.
If an employer chooses to act on the private information they find, an employee may be able to file a wrongful termination lawsuit. Thirty-one states currently have laws that protect employees from termination for lawful activities outside of work hours.
5. Stripping away your right to form a class action lawsuit
Nearly 40% of employers now require employees to waive their right to file a class action lawsuit. These binding arbitration agreements, which are often buried in employee handbooks, don’t allow employees to opt-out.
Like other methods for stripping employees of their rights, employers argue that arbitration allows legal matters to be settled more efficiently by doing so outside of court with a private arbitrator.
But, employees are less likely to win disputes that are filed in arbitration, and they walk away with less money than cases that are tried before a judge and jury in court. A Cornell University study found that employee litigation awards were five to 10 times greater than arbitration awards, and between 2003 and 2007, employees only won 21% of all workplace arbitration cases.
The National Labor Relations Board (NLRB)has brought many employers to court who prohibit employees from filing class action lawsuits. They argue that class action waivers violatethe National Labor Relations Act (NLRA) which protects employees’ rights to collective action. Opponents argue that the Federal Arbitration Act, which permits class action waivers, trumps the NLRA.
The U.S. Supreme Court will soon decide if employee class action waivers are legal. The court is currently reviewing cases involving three employers: Murphy Oil, Epic Systems, and Ernst & Young.
Do you need to fight back?
If you were denied minimum wage or overtime, were misclassified or faced discrimination, or were denied any other employee right, contact us today for a free legal review. Our attorneys have recovered more than $4 billion from negligent companies.
Though asbestos has been regulated in the U.S. since 1971, people are still dying from it.
According to a recent report from the Centers for Disease Control and Prevention (CDC), deaths from mesothelioma—an aggressive lung cancer almost solely caused from asbestos exposure—increased by 4.8% from 1999 to 2015. Altogether, there were 45,221 mesothelioma deaths in the U.S. during that time period.
Given the steep decline in asbestos use, why are people still dying from this disease? For one thing, mesothelioma can have an extremely long latency period; it can take decades to develop. But that doesn’t explain why the CDC continues to report deaths of Americans under the age of 55.
The U.S. Imported 350 Tons of Asbestos in 2015
Though heavily regulated, asbestos—incredibly—remains legal in America. In 2015, the U.S. imported 350 tons of asbestos to produce everything from soap to alkaline batteries.
The Environmental Protection Agency (EPA) publishes a list of legal asbestos-containing products. Asbestos is most commonly used in automobile parts and building materials, including:
Vinyl floor tile
OSHA Violations Expose Workers to Asbestos
In the 20th century, the construction industry used 70-80 percent of America’s asbestos. So while asbestos is still used in some new products, workers are more likely to encounter the carcinogen when replacing materials or remodeling older buildings.
Any time asbestos is disturbed, the mineral can release shard-like fibers into the air. If inhaled or swallowed, these fibers can eventually cause cancer.
Twenty percent of air samples collected at construction sites exceeded the legal limits for asbestos exposure.
The Occupational Safety and Health Administration (OSHA) has strict safety requirements to protect workers. Employees must be trained on how to recognize and remove asbestos, and employers must provide protective clothing and respirators. When removing asbestos, the area must be enclosed and an air filtration or collection device, like a HEPA vacuum, must be used to trap asbestos particles.
But just because rules exist doesn’t necessarily mean they will be followed. In 2003, the CDC found that 20 percent of air samples collected at construction sites exceeded the legal limits for asbestos exposure.
Not only are workers endangered when employers cut corners, but so are their families. Even the smallest amount of asbestos exposure—like hugging a loved one who is wearing asbestos-contaminated clothing—can eventually cause mesothelioma.
OSHA Hits Companies with Million-Dollar Fines
In 2015, two construction companies in southern Illinois—Kehrer Brothers Construction and D7 Roofing—were hit with a combined $1.9 million in fines for violating OSHA asbestos regulations.
“These workers will carry the increased risk of cancer for the rest of their lives.”
OSHA alleged that the companies instructed workers to remove asbestos, but didn’t provide them with basic safety equipment like helmets, nor did they follow rules for asbestos removal. The agency alleged that these violations increased workers’ exposure to the carcinogen.
“The size of the fine is a statement about the gravity of the situation,” said David Michaels, assistant secretary of labor for occupational safety and health, in an interview with the Chicago Tribune. “These workers will carry the increased risk of cancer for the rest of their lives.”
Promotional display maker AMD Industries, based in Illinois, was also hit with $1.25 million in fines when they failed to protect workers from asbestos exposure. In 2011, OSHA penalized the companywhen it was discovered that five employees were instructed to remove asbestos without receiving respirators.
A safety audit of the AMD facility revealed asbestos material on boilers, heating units, and piping.
“License to Kill” Bill Dims Hopes of Asbestos Ban
Lawmakers and health organizations have tried repeatedly to ban asbestos completely. The EPA managed to temporarily ban the carcinogen in 1989, but two years later it was overturned.
More recent attempts include Senator Patty Murray’s (D-WA) Ban Asbestos in America Act, which passed in the Senate in 2007 but ultimately failed to become a law.
Under the guise of “cutting red tape,” the bill would paralyze agencies like the EPA from taking action against toxic chemicals.
Last year, the Toxic Substances Control Act (TSCA) was amended to allow the EPA more authority to regulate and ban toxic substances. The EPA immediately prioritized asbestos for a safety review.
However, with budget cuts left and right, and potentially dangerous bills being introduced that threaten the EPA’s authority, it’s likely an asbestos ban won’t happen anytime soon.
One particular bill, the Regulatory Accountability Act, is being referred to by some as the “License to Kill” bill.
Under the guise of “cutting red tape,” the bill would essentially paralyze agencies like the EPA from taking action against toxic chemicals, sweeping the TSCA reforms under the rug.
Public Citizen, a consumer rights group, estimates that it would add 53 steps for agencies to pass major rules and regulations. Opponents argue that this lengthy rule making process would create more opportunities for special corporate interests to derail regulations and bans on dangerous chemicals.
H.R. 5, as the bill is formerly known, was passed by the House of Representatives and now awaits a Senate vote.
We’re Fighting for Mesothelioma Victims
There is still one place for mesothelioma victims to fight back, and that’s in court.
If you or a loved one were diagnosed with mesothelioma, you may be eligible for a lawsuit. Contact our attorneys for a free consultation to find out if you might be owed money for asbestos exposure. To date, asbestos funds have awarded nearly $20 billion to mesothelioma patients.
Without the rights or voice that come with an employee classification, some Uber drivers are seeking union representation.
Uber loves to have their cake and eat it too. Especially when it comes to classifying their drivers.
Are Uber drivers employees? According to Uber, no, which is great, they argue, because it allows drivers to work on their own schedules. And, it happens to save Uber a ton of money by not having to pay minimum wage, sick days, and benefits like unemployment or health insurance.
But, unlike contractors, Uber drivers can’t set their own fares, and they are constantly at risk of being deactivated from the app.
Without the rights that come with an employee classification, nor the ownership and independence that freelancers enjoy, Uber drivers are stuck in a no man’s land without a voice, leading some drivers to seek representation from unions or drivers guilds.
Judge Temporarily Blocks Seattle’s Collective Bargaining Law
Seattle is currently the battleground for Uber’s union fight. The city passed the For-Hire Driver Collective Bargaining Law at the end of 2015, the first of its kind that allows Uber and Lyft drivers to unionize.
Though limited to Seattle, the law could lead to changes throughout the country in how Uber and Lyft drivers are represented and which rights they are entitled to.
The U.S. Chamber of Commerce (which represents Uber) retaliated by suing the city, claiming that since drivers are contractors, they cannot organize. It would be an issue of price-fixing, they argued, if they had representation to advocate for minimum pay or higher fares.
Last week, a judge ruled in their favor, temporarily blocking the law from going into effect.
“A drivers guild may be a good start, but it’s unlikely that older union models would apply in the face of federal laws regarding independent contractors.”
We asked Ehsan Zaffar, a law professor at American University Washington College of Law, what his thoughts are on the matter. He believes that an entirely new regulatory structure needs to be created which would allow “drivers to pool resources and bargain collectively, while still allowing Uber and its drivers to partake in and fairly benefit from independent contractor provisions.”
“A drivers guild may be a good start, but it’s unlikely that older union models would apply in the face of federal laws regarding independent contractors,” said Zaffar.
Uber Launches Anti-Union Ad Campaign
Uber warns that a union could “essentially stalk drivers” to get them to join and pay dues, referring to them at one point as being “super scary.”
Recognizing the implications of Seattle’s law, Uber deployed a major PR campaign to influence drivers’ opinions on collective organizing.
In one podcast episode, Brooke Steger, the General Manager of Uber in Seattle, passionately says that Teamsters, the union that is trying to represent drivers, is trying to “silence drivers.” In another episode, Steger warns that the union could “essentially stalk drivers” to get them to join and pay dues. She refers to them at one point as being “super scary.”
The podcast features comments from Uber drivers that echo the company’s message. Eric, an Uber driver, declares in one episode that “it’s so great that Uber is standing up for its drivers.”
However, it’s unclear how authentic Eric the Uber driver’s testimony is. He mentions in one episode that he is a member of the nonprofit Drive Forward that is fighting for the flexible rights of Uber drivers. If you read the fine print on their website though, you’ll see that the nonprofit was founded by Uber.
Uber’s primary argument that union representation could restrict drivers’ flexibility has been struck down by the Teamsters Union. The union claims that drivers would vote on proposed contracts and any changes in terms.
Uber Drivers Don’t Have a Voice
“If any group of workers needs the right to work together to improve their conditions, and to demand accountability from their employer, it’s Uber drivers.”
Whether or not union representation is the best course of action for Uber drivers remains to be seen, but it’s clear that something has to change to ensure drivers are treated fairly.
Uber has used drivers’ contractor status to ensure they remain voiceless.
“Uber drivers are managed by inscrutable and unfair algorithms, and have no way to raise any concerns with the company,” Tom Slee, author of What’s Yours is Mine: Against the Sharing Economy, told us. “If any group of workers needs the right to work together to improve their conditions, and to demand accountability from their employer, it’s Uber drivers.”
“Sharing Economy” is One-Sided for Uber Drivers
“The company is seeking a unique combination of control without responsibility.”
Right now, many Uber drivers are barely getting by, frequently making less than minimum wage, without a safety net for periods of low ridership.
When Uber decides to offer discounted rides, drivers are forced to comply, even though it often means a cut in their earnings. Uber argues that promotions result in more passengers for drivers, but it also means longer hours.
There have even been accounts of drivers seeing lower fares on their apps than the fares charged to passengers, causing some to believe that Uber is pocketing the difference.
Drivers are even subject to psychological “gaming” techniques to incentivize them to work longer hours, as a recent New York Times piece detailed. The app used to present drivers with a new passenger before they dropped off the one that was already in their car. Failing to accept at least 90% of rides, or receiving poor ratings—even if a driver doesn’t deserve them— are common grounds for sudden deactivation.
“Uber micro-manages its drivers through software, from tracking driving habits to firing drivers for low ratings. The company is seeking a unique combination of control without responsibility,” said Slee.
As contractors, drivers shoulder a huge amount of Uber’s business risk by not having a steady income or schedule, but they lack the true benefits of “flexibility” that the company likes to promote.
With the pending price-fixing lawsuits in Seattle and New York, and the ongoing employee misclassification class action lawsuits in California and Massachusetts, it’s now up to the courts to decide what exactly Uber is, and how their drivers should be rightfully defined under federal labor law.
With a Republican supermajority controlling Congress and the presidency, legislation that would make it harder for victims to get compensation from asbestos trust funds has its best chance in years to become law.
The Furthering Asbestos Claims Transparency Act of 2017 (FACT Act) is purportedly aimed at curbing asbestos trust fund abuses—but there is scant evidence for improprieties. Critics say the bill’s true intention is to complicate the asbestos trust claims process and make it difficult if not impossible.
For decades, companies hid the dangers of asbestos while using the carcinogenic mineral in countless products, leading to millions of avoidable deaths. Thousands of patients per year continue to be diagnosed with mesothelioma, an incurable cancer that is only caused by asbestos exposure.
Many companies established trust funds to compensate asbestos sufferers. Limiting access to this trust money would be yet another blow to asbestos victims and their families.
ClassAction.com encourages you to contact your representatives and tell them to vote “No” on the FACT Act (H.R. 906). And if you or a loved one has been diagnosed with mesothelioma, contact us to see if you qualify for compensation.
“The FACT Act Is a Special Interest Bill”
The FACT Act would require asbestos trusts to file quarterly public reports with the bankruptcy court describing each demand the trust received from a claimant, including the claimant’s name and asbestos exposure history, as well as the basis for any payment made from the trust to a claimant. Parties to asbestos lawsuits also would be granted access to information about a trust’s claims and payments.
“This wholly unnecessary and one-sided legislation is an affront to states’ rights and unfair to victims.”
While the bill’s proponents say it weeds out spurious asbestos trust claims and benefits legitimate victims, opponents say unmeritorious claims are a red herring.
“Don’t be fooled,” said Linda Reinstein of the Asbestos Disease Awareness Organization (ADAO). “The FACT Act wasn’t written for us—it is a special interest bill. It forces victims to reveal personal information, work history, family information, and the last four digits of their Social Security numbers in order to get medical bills paid at all.”
The bill’s provisions have drawn sharp criticism from advocacy groups who say that the FACT Act would have a number of troubling effects, including:
Giving asbestos defendants the right to request any information about any victim from any trust at any time for any reason, potentially creating an endless loop of information demands that could delay trust claims and require trusts to spend additional (and very limited) resources on compliance.
In addition to cost burdens, defendants’ information demands could cause payment delays for mesothelioma patients who desperately need money for treatment. This could force them to settle mesothelioma lawsuits for lower amounts, which would be a win for asbestos companies.
Providing defendants access to information about victims’ trust settlements would allow them to circumvent state discovery rules that limit information-gathering and tip the scales in asbestos companies’ favor.
Just as significant as what is in the bill is what is not in the bill. The FACT Act does not place any additional transparency requirements on asbestos companies, such as requiring them to divulge previous settlement amounts, details about how and when they exposed the public to asbestos, and where asbestos continues to be used.
“For decades, secrecy and deceit have been a way of business for the asbestos industry, and this bill does absolutely nothing to change that,” wrote the signatories of one opposition letter. “This wholly unnecessary and one-sided legislation is an affront to states’ rights and unfair to victims.”
FACT Act Could Succeed Where Past Acts Failed
The FACT Act was introduced by Blake Farenthold (R-TX). It cleared a House Judiciary Committee and is now up for a full House vote. If passed in the House, the bill would move on to the Senate.
A similar bill cleared the House last year but failed to gain traction in the Senate. Even if it had passed there, President Obama would have vetoed the bill.
President Trump once said that more asbestos would have prevented the World Trade Center collapse.
But with Republicans now controlling the House, the Senate, and the presidency—and with legal reform taking center stage in the Republican agenda—the FACT Act could succeed where its predecessors failed.
President Trump’s past comments praising asbestos—he once said that more asbestos would have prevented the World Trade Center collapse—suggest that he would sign the proposed legislation.
“I don’t think he [Trump] has a reason not to [support the legislation], but we expect it to be rolled into a larger ‘reform’ package and passed that way,” a spokeswoman for Rep. Farenthold said.
In a joint statement, Rep. Farenthold and House Judiciary Committee Chairman Bob Goodlatte (R-VA) said, “The FACT Act requires bankruptcy trusts to be transparent like other courts. This will ensure deserving victims receive the maximum relief for their illness and injuries, while preserving privacy protections, and weeding out bad actors who would take advantage of the system.”
GAO Finds No Evidence of Asbestos Trust Fraud
H.R. 906 claims to “prevent fraud” despite no evidence of substantial fraud in the trust process. In fact, the U.S. Government Accountability Office (GAO) reviewed the issue and did not identify a single fraudulent claim.
The GAO reviewed the issue and did not identify a single fraudulent claim.
But Rep. Farenthold maintains, “Without the FACT Act, unscrupulous attorneys and bad actors can continue to bring duplicative claims to multiple trusts.”
Allegations of duplicative claims—or so-called “double-dipping”—misrepresent the trust claims process.
Because mesothelioma victims are typically exposed to multiple asbestos products at multiple job sites over many years, they must file separate claims with separate trusts. Victims recover a portion of their damages from each of the asbestos companies that harmed them. The information contained in each claim is different—but it is not duplicative or fraudulent. Each trust only pays a portion of the victim’s damages.
“Double-dipping” concerns of a different nature did surface in a recent asbestos bankruptcy proceeding involving Garlock Sealing Technologies.
According to Garlock, plaintiffs’ attorneys at a handful of firms told different stories about their clients’ exposures to asbestos in civil lawsuits than they did in the bankruptcy trust system. They did so in order to maximize the value of their claims against Garlock, which at the time was still solvent (not bankrupt). A federal judge sided with Garlock in the case, agreeing to let the company lower its trust investment significantly.
Matt Webb, senior vice president of legal reform policy at the U.S. Chamber Institute for Legal Reform (which supports the FACT Act), says that improved asbestos trust transparency would prevent asbestos claimants from “double-dipping” by allowing asbestos litigation defendants to determine whether a plaintiff’s claims history is consistent with their claim of asbestos exposure in a pending case.
Regular asbestos trust audits have uncovered no patterns of fraud.
The FACT Act’s provision requiring trusts to provide information sought from them by defendants in asbestos lawsuits addresses fraud concerns raised in the Garlock case. But in its maneuver to limit the amount it would put in its asbestos trust, Garlock only leveled fraud claims against a handful of firms. The firms in question say Garlock is merely intimidating those who have succeeded against the company in court. There is no evidence suggesting such “double-dipping” is widespread.
More telling is the fact that lawmakers have reintroduced versions of the FACT Act every year since 2004, demonstrating asbestos companies’ long-standing agenda to tamp down on asbestos victims’ rights.
Instead of facing the facts and taking care of their retired players, the NHL is attacking concussion researchers.
What’s a sports league to do when it’s the subject of a high-profile concussion class action lawsuit? In the National Hockey League’s case, it attacks the researchers who have proven a link between concussions and CTE, or chronic traumatic encephalopathy.
Caused by repeated brain trauma, CTE gradually kills the cells of the brain. It can cause or worsen memory loss, Alzheimer’s, dementia, impulse control problems, aggression, and depression.
In 2013, more than 100 former NHL players filed a class action lawsuit accusing the league of failing to warn players of their increased risk for CTE. The lawsuit alleges that the league knew or should have known of the long-term neurological effects players faced from repeated collisions. Retired players now seek compensation for their medical costs.
Class members are primarily relying on research from Boston University’s CTE Center, which has a brain bank to study the effects of head trauma on athletes. But, instead of facing the research center’s facts and taking care of their retired players, the NHL is trying to discredit the research entirely.
NHL’s Demands Would Cripple Researchers
The league requested every piece of raw data, internal communication, medical report, and even autopsy details.
In a move that could be straight from Big Tobacco’s playbook, the NHL has requested nearly every piece of the center’s data. This endeavor would essentially stop all other research activity at the center for months.
The league’s motion to compel requests every piece of raw data, internal communication, medical report, and even autopsy details related to their research. They claim these materials are necessary to “assess methodology, bias, accuracy, or other defects that are indisputably central to the merits and class certification.”
But Boston University’s researchers are fighting the request, claiming that it’s not only impractical but would likely be used to misinterpret the data to suit the NHL’s agenda.
“I fear that if the center data are given to the NHL, it would not be scrutinized objectively, but rather, will be evaluated with a goal of exploiting immaterial discrepancies with a goal of tarnishing my reputation and that of the center, rather than neutrally evaluating the veracity of my findings, which have already been subjected to rigorous scientific scrutiny,” said researcher Dr. Ann McKee in a court filingobjecting to the league’s demands.
Players May Fear Retribution
B.U.’s CTE brain bank currently has data on more than 350 brains of retired athletes, five of whom played in the NHL. It’s a disease that can only be diagnosed post-mortem, so CTE research relies on the information gathered from brain donations.
As it stands, the connection between CTE and football is more well-known and acknowledged by the players and the league. The center has diagnosed CTE in all but four of the 95 brains of former NFL players, and the league shelled out nearly $1 billion in a class action lawsuit filed by 1,000 former players. In comparison, the NHL’s class of 100 seems low.
Those who are connected to the NHL emphasize the league’s unique culture. In Canada, hockey is more than just the national pastime—it’s a religion.
Many former players continue working for the league long after playing on the ice in roles like coaching. Because of this, few players are willing to formally stand up to the NHL, even if they know they were wronged by them.
This culture was evident in 2013 when former player Rick Vaive briefly joined the class action. Within days he backed out, claiming he never saw a copy of the complaint and thought it was regarding workers’ compensation, not a matter against the league.
Steve Silverman, an attorney representing the players, said Mr. Vaive was fully aware of what the suit was about and had seen the complaint.
“Unfortunately—and understandably—there was a tremendous amount of backlash on him in Canada. And he crumbled quickly under the pressure from the fans, the league and the media,” Mr. Silverman told The Washington Post.
Senate Demands NHL Take More Responsibility
“The relationship between concussions and the asserted clinical symptoms of CTE remains unknown.” — NHL Commissioner Gary Bettman
The NHL’s denial outside the courtroom puts them far behind leagues like the NFL, which has grudgingly admitted that its football players are at risk for CTE.
But NHL commissioner Gary Bettman maintains that there isn’t enough research on CTE to know for certain how it is caused. In a letter to the Senate, Mr. Bettman argued, “The relationship between concussions and the asserted clinical symptoms of CTE remains unknown.”
Last summer, Richard Blumenthal (D-CT)—a member of the Senate’s Consumer Protection subcommittee—wrote a letter to the NHL stating that they needed to take more of a leadership role in CTE research.
“As the premier professional hockey league in the world, the N.H.L. has an obligation not only to ensure the safety of your players, but to also engage in a productive dialogue about the safety of your sport at all levels,” wrote Mr. Blumenthal.
In response, Mr. Bettman blamed the media for widespread public misconceptions about the disease.
But the challenges retired players face are very real. A trial may help clarify the link between hockey and CTE: U.S. District Judge Susan Richard Nelson hopes the class action lawsuit will make it to court this year.
Asbestos workers often carried the carcinogen into their homes via their clothing, hair, or skin, putting entire households at risk of developing mesothelioma.
Mesothelioma, the deadly cancer caused by asbestos exposure, causes thousands of deaths each year. But not every diagnosis is caused by direct exposure at a work site.
Long before OSHA safety standards and EPA regulations, workers commonly left their jobs still covered head-to-toe in asbestos dust, carrying the carcinogen into their homes and exposing their family members to the harmful mineral.
Without protective equipment, any exposure to asbestos is unsafe. Just by inhaling asbestos dust left on work boots or coveralls, family members could contract mesothelioma.
In fact, the American Cancer Society warns that asbestos fibers tracked into the home pose an increased cancer risk for family members: “There is no clear safe level of asbestos exposure in terms of mesothelioma risk,” they warn.
Former asbestos manufacturers and employers who used asbestos products have paid millions for knowingly exposing workers to the carcinogen. But, as courts are ruling more and more, they can be just as responsible for the mesothelioma diagnoses of family members, even if they were harmed away from a worksite.
Companies Are Required to Prevent Secondhand Asbestos Exposure
Asbestos fibers are extremely dangerous when inhaled or swallowed because they can stick to the mucus-lining of the lungs or abdomen. There, the fibers can slowly develop into cancer, often taking decades until symptoms emerge.
To reduce the risk of exposing their households to mesothelioma, it’s vital that asbestos workers wear separate protective clothing when working with the carcinogen, and shower to remove any lingering asbestos dust before leaving work sites. Today, companies are required by law to eliminate risks of exposure to asbestos for employees and anyone else they come into contact with.
OSHA’s asbestos safety standards (last revised in 2002) are detailed. For Class I workers (or the most dangerous levels of exposure), employers are responsible for providing the following rooms for employees to enter and exit the work site:
Equipment Room: Including storage for contaminated equipment, sealed bags to transport clothing and equipment, and HEPA vacuums to clear away dust. HEPA (High-Efficiency Particulate Air) vacuums can trap 99.97% of airborne particles.
Decontamination area: Showers for employees to use before heading home.
“Clean” room: Including lockers or other storage for street clothing, away from asbestos dust.
Half of Female Mesothelioma Cases Caused By Exposure at Home
Washing asbestos-coated clothing is a common cause of “bystander” mesothelioma.
Sadly though, most companies failed to exercise safety precautions before EPA regulations were adopted in the 1970s, causing spouses, children, and other household members to develop mesothelioma later in life.
Washing asbestos-coated clothing is a common cause of “bystander” mesothelioma, especially since shaking out dusty clothes could cause the fibers to spread through the air. Washing contaminated clothing with non-contaminated clothing could even spread the carcinogen throughout the household. Other common ways of inhaling asbestos fibers at home include hugging relatives who had yet to shower or change clothes, or sleeping or playing near contaminated clothing.
Bystander or “take-home” asbestos exposure particularly affects women. Two different studies—one conducted in 1997 by Durham and Duke University Medical Centers and another conducted in Denmark between 1996 and 2012, published in the Danish Medical Journal—discovered that more than half of women diagnosed with mesothelioma contracted the disease at home.
N.J., C.A. Holds Employers Responsible for Take-Home Asbestos
New Jersey made one of the first landmark decisions recognizing take-home asbestos exposure. In 2006, the state ruled in Olivo v. Owens-Illionois Inc. that Exxon owed “duty of care” to spouses exposed to asbestos dust on the clothing of employees.
Last December, the California Superior Court unanimously extended employers’ “duty of care” to protect not only spouses from harm, but family members, roommates, and others who come into regular contact with asbestos fibers brought into a home.
California Justice Goodwin Liu said, “Where it is reasonably foreseeable that workers, their clothing or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.”
Take-Home Asbestos Cases Result in Million-Dollar Verdicts
Secondhand asbestos cases aren’t just being recognized by courts, they are also resulting in large awards for families who lost loved ones to the disease.
Melissa Ann Bobo filed a lawsuit against the Tennessee Valley Authority (TVA) in 2012 after contracting pleural mesothelioma (mesothelioma of the chest). Her husband worked at the TVA-operated Browns Ferry Nuclear Power Plant in Alabama where he was exposed to asbestos.
Ms. Bobo washed her husband’s clothes twice a week for 22 years, continually exposing herself to the carcinogen. She eventually died from the disease in September 2013, two years before winning a $3.5 million awardfrom an Alabama federal judge.
In a similar case in Washington, Barbara Brandes filed a lawsuit in August 2014 against Brand Insulation. She was diagnosed with mesothelioma after washing her husband’s work clothes, which were often covered in asbestos dust from his job working at a refinery in Puget Sound.
The following year, both Ms. Brandes and her husband passed away from mesothelioma—Barbara just one day before the closing arguments. Her case resulted in a $3.5 million award.
Contact A Mesothelioma Attorney for a Free Consultation
Companies knew for decades that asbestos was a carcinogen, yet they continued to expose employees (and their families) to the dangerous mineral.
If you or a loved one were diagnosed with mesothelioma, you may be eligible for a lawsuit. Contact our legal team for a free, no-obligation case review. It costs nothing unless we win a jury award or settlement.
Class action lawsuits against employers for alleged violations of minimum wage, overtime, and other wage and hour protections decreased slightly in 2016. But they remain on track for long-term growth under a more business-friendly Trump administration, according to a new report.
Wage and hour class action filings were down in 2016, but settlement values were up.
That said, Supreme Court nominee Neil Gorsuch has sided with businesses on past labor issues and could provide the deciding vote in an upcoming high court review that could curb workers’ ability to file class action lawsuits.
If your employer violated wage and hour laws, you may be eligible for a lawsuit. Learn more during a free case review from ClassAction.com.
Corporate defense firm Seyfarth Shaw issues an annual report on workplace class action litigation that covers employment lawsuit trends from the previous year and offers analysis of what to expect in the year ahead.
More than 70% of all employers violate federal wage and hour laws.
Wage and hour lawsuit filings have increased by more than 450% over the last 15 years, reports Seyfarth Shaw, which notes that these lawsuits cause the most concern for employers. That’s because more than 70% of all employers violate federal wage and hour laws, according to the Department of Labor (DOL). Such cases also tend to be high stakes lawsuits from an employer’s perspective, since many result in large settlements.
Key wage and hour litigation insights from the 2017 report include:
One hundred and ninety-five wage and hour class actions were allowed to proceed in 2016, compared to 175 certifications in 2015. Wage and hour cases were certified at a higher rate than any other employment class action type in 2016.
Although the number of wage and hour cases filed in 2016 decreased for the first time in more than a decade, the value of the top ten wage and hour lawsuits increased significantly, to $695.5 million—nearly quadrupling in value compared to 2014.
The top two wage and hour settlements of 2016—both involving FedEx—were valued at $240 million and $226 million. Both cases settled claims that FedEx employees had been misclassified as independent contractors.
Wage and hour litigation is expected to continue its overall growth in 2017 and beyond based on new federal overtime regulations, local minimum wage laws, independent contractor misclassification lawsuits, and increased public awareness of employees’ rights.
How Trump Could Impact Wage and Hour Cases
Not all wage and hour disputes are taken up as class action lawsuits. Through the Department of Labor, the federal government also files lawsuits against employers that violate wage and hour laws and obtains settlements on workers’ behalf.
DOL enforcement lawsuits are typically pursued far more aggressively under Democratic administrations than under Republican administrations. The DOL aggressively sued employers for wage and hour violations during the Obama years. Since 2009, the DOL’s Wage and Hour Division closed 200,000 cases and recovered more than $1.8 billion in back pay for more than two million workers.
Sixty percent of CKE restaurants investigated by the DOL were caught violating labor laws.
While the scope of labor enforcement policies in the Trump administration remains to be seen, if the new Administration’s Department of Labor does back off wage and hour enforcement, plaintiffs’ attorneys would likely pick up the slack by filing more private wage and hour employment lawsuits.
Critics of Mr. Trump’s pick for labor secretary, CKE Restaurant Holdings Inc. CEO Andy Puzder, claim CKE chains such as Carl’s Jr. and Hardees are some of the nation’s worst labor law violators.
A fast food worker advocacy group called Fight for $15 says that 60% of CKE restaurants investigated by the DOL since 2009 were caught violating labor laws.
Neil Gorsuch Could Curb “Frivolous” Lawsuits
Perhaps the biggest wage and hour wildcard of the Trump Administration is how his Supreme Court Justice will shape labor law outcomes. Of particular importance to wage and hour cases is an upcoming review that will decide whether employers can use arbitration agreements that prohibit workers from filing class action lawsuits.
Mr. Trump has nominated conservative justice Neil Gorsuch to fill the void left by the late Antonin Scalia. As a federal appeals court judge, Mr. Gorsuch opined against what he perceived as government agency overreach. In his private legal career, Mr. Gorsuch supported curbs on what he deemed “frivolous” class action lawsuits.
The court is expected to hear the class action waiver case in the 2017 term, which begins in October. Judge Gorsuch should sit on the bench by then, barring a refusal by Senate Democrats to confirm him.
Gerald Maatman, lead author of the Seyfarth Shaw report, told The Chicago Tribune, “I think employers have a supporter with [Mr. Gorsuch], who is unwilling to go along with agencies just because they interpret the law in a certain way.”
“If you think that workers need more protection, then he’s probably not your guy.”
Richard Trumka, President of The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), also sees an employer ally in Gorsuch.
“He’s been a very, very strong advocate for corporations at the expense of working people,” said Mr. Trumka. “If you think that workers need more protection and corporations need less protection, then he’s probably not your guy.”
“Class action waivers may be one of the most important issues facing workers today.”
The Supreme Court announced on Friday that it will review whether or not class action waivers violate national labor laws. Companies frequently include these waivers in arbitration agreements to prohibit employees from forming class action lawsuits. For years though, district and appellate courts have disagreed on whether or not the practice is legal.
“Class action waivers may be one of the most important issues facing workers today, and many are unaware it is such an issue,” said attorney C. Ryan Morgan, co-chair of Morgan & Morgan’s Employee Rights Group. “Class action waivers are detrimental to the vast, vast majority of workers and hinder workers from having knowledge of their rights.”
40% of Employers Use Class Action Waivers
“Most workers would be shocked if they knew that many employers force workers to sign these agreements.”
Arbitration agreements and class action waivers—which are usually buried deep within an employer’s contract—require employees to handle their legal disputes in private arbitration, without a judge or jury. Employers prefer arbitration because proceedings are faster and are less costly than typical lawsuits. And, companies are more likely to win.
In arbitration, companies set the rules of proceedings and hire the arbitrator. A Cornell University study found that out of nearly 4,000 workplace arbitration cases filed between 2003 and 2007, only 21% were awarded in favor of employees. And, on average, employee litigation awards were 5 to 10 times greater than arbitration awards.
Employees are usually unable to opt out, and some courts, like the Sixth Circuit, have ruled that by simply showing up to work, an employee has agreed to the arbitration terms.
“Most workers would be shocked if they knew that many employers force workers to sign these agreements and certain courts enforce the agreements,” said Carlos Leach, an employee rights attorney for Morgan & Morgan.
Class Action Waivers May Violate the National Labor Relations Act
Stephanie Sutherland was told that pursuing her case in arbitration would cost her $200,000.
Agencies like the National Labor Relations Board (NLRB) argue that class action waivers violate the National Labor Relations Act (NLRA) because they strip away employees’ rights to collective action. Employers, however, often argue that the Federal Arbitration Act, which permits class action waivers, trumps the NLRA.
The Supreme Court will decide whether or not the NLRB’s interpretation is correct by reviewing three cases involving Murphy Oil, Epic Systems, and Ernst & Young.
Epic Systems and Ernst & Young are appealing decisions made by the Seventh and Ninth Circuits respectively that declared their class action waivers were illegal. The Chicago and San Francisco-based appellate courts were the first to rule against class action waivers in 2016.
For smaller disputes, a class action lawsuit is usually the most cost-effective legal method since plaintiffs can share legal costs. Stephen Morris and Kelly McDaniel are fighting for their right to form a class action lawsuit against Ernst & Young, whom they allege withheld overtime pay from employees.
In a similar case filed by another former Ernst & Young employee, Stephanie Sutherland was told that pursuing her case in arbitration would cost her $200,000. Though a New York federal court overrode the class action waiver since arbitration fees would prevent her access to the courts, it was later reversed by the Second Circuit Court of Appeals.
Employee Rights Advocates Are “Cautiously Optimistic”
“I am cautiously optimistic that the [Supreme Court] will do the right thing and side with the NLRB.”
Experts caution that the possibility of a 4-4 split and the looming justice vacancy far from guarantees a decision in favor of class action rights.
However, the Supreme Court announcement comes on the heels of President Obama’s Fair Pay and Safe Workplaces executive order, which rules that companies with federal contracts of $1 million or greater cannot require employees to sign arbitration agreements. And, last year, the Senate introduced the Restoring Statutory Rights Act, which would prohibit arbitration agreements that violate employee discrimination laws.
“As an attorney who constantly fights against these agreements on behalf of employees, I am cautiously optimistic that the [Supreme Court] will do the right thing and side with the NLRB’s position that class action waivers violate workers’ fundamental rights to join together versus their employer,” said Carlos Leach.
Opening briefs are scheduled to begin in February; a decision will likely be made sometime this summer.
On-call scheduling results in inconsistent work hours and pay. In some states, employers are required to pay employees for last-minute shift changes.
Last week, six major retailers, including Disney and Aeropostale, announced they were banning on-call scheduling.
When employees are on-call, they are expected to keep their schedules open in case they are needed. They call or text before their shift to see if they have to come in, or in some cases, go to work only to be dismissed.
The Economic Policy Institute estimates that 17% of the workforce has on-call or irregular work schedules. This group also represents the lowest-paid workers.
On-call scheduling is commonly seen in retail and fast food industries: The New York Times reports that 66% of food service workers and 52% of retail workers have irregular schedules, only receiving one week’s notice at most about their hours.
While it makes sense to employers to have workers at the ready in case of emergencies or a flood of unexpected business, the practice has been abused—ultimately at the expense of low-paid workers.
Employees Become “Interchangeable Parts”
Since the recession, part-time work has soared—that is, involuntary part-time work. Employers save money by hiring fewer full-time workers and relying on more part-time workers whom they can slot in where necessary.
Companies know that they lose money if they over or under-staff: They don’t want idle employees, but they also don’t want customers frustrated with slow service. Employers schedule around their typical busy and slow times, but this doesn’t account for every variable that affects foot traffic, leaving many absorbing high labor costs.
For more reliable scheduling, more companies are using software like Kronos. The software analyzes everything from customer traffic to weather conditions to schedule employees in 15-minute increments when they are needed most. Because these factors are in real time, schedules often change frequently—sometimes canceling shifts hours before or sending home employees early.
This makes sense for a company’s bottom line, but it leaves employees in the dark about whether or not they are working the next day or even that night. Parent-teacher conferences, birthday parties, and night classes become impossible to commit to; childcare becomes a nightmare to arrange.
This type of scheduling treats employees as interchangeable parts, explains MIT professor Zeynop Tan in the video below.
“When you see labor as just as a cost to be minimized, the outcome of that is high employee turnover, absenteeism, bad morale, bad customer service, operational problems, low sales, and low profits. When sales are low, then labor budgets are reduced and this vicious cycle continues.”
This cycle, Professor Tan says, “is downright brutal for employees.”
Inconsistent Schedules Mean Inconsistent Pay
Workers could be spending their free time in school or earning additional income, but instead they are shackled to the whims of their employers.
More than just an inconvenience, this irregularity is a huge drain on society productivity and advancement. On-call workers could be spending their free time in school or earning additional income, but instead they are shackled to the whims of their employers.
Employees also take a financial hit when shifts are canceled. When workers are on-call, many employees must arrange for childcare and cancel classes and other work shifts to ensure they are available. These arrangements are worth it if an employee can log a few hours in, but if they aren’t needed, it often means time and money wasted.
In some cases, employees show up to work only to be sent home, resulting in money spent on a wasted commute. Some states (like California, New York, and New Jersey) have passed measures that ensure on-call employees are paid at least a few hours for their time.
And, budgeting? Fluctuating hours makes it seem laughable. With 40 hours one week and maybe eight the next, employees can’t know for certain whether or not they’ll be able to pay the bills from week to week.
Reporting to Work Is More than Just Physically Showing Up
In today’s digital age, the definitions of “on-call” and “reporting to work” can be complicated.
Uber drivers have filed a class action lawsuit in Pennsylvania arguing that Uber should pay drivers minimum wage for the time they are logged into the app. Often, drivers experience long waits between passengers that they aren’t compensated for. When they are logged into the app, Uber drivers must adhere to the company’s policies—including a particular dress code and accepting every fare—that they argue is equivalent to being “on-call.”
In California, class action lawsuits are defining what “reporting” for work means. Multiple retailers, including Forever 21 and Urban Outfitters, are under fire for not compensating employees for canceled shifts. The California Fair Scheduling Act requires employers to pay one hour of wages for shifts canceled within less than one week, and half of a shift’s pay for shifts canceled with less than 24 hours’ notice.
In a lawsuit against Victoria’s Secret, the company argues that calling or texting ahead does not count as reporting since an employee can be engaged in a non-work related activity. Employees, however, argue that having to call ahead to see if they are needed prevents them from making other plans.
Eric Schneiderman, New York attorney general, agrees. His office has called out major retailers for these unfair scheduling practices, warning them that they are at risk of violating a New York labor law that requires employers to pay for at least four hours of work if employees report for a scheduled shift. Having to call or text ahead, the state argues, is considered reporting for work.
“On-call shifts are not a business necessity and should be a thing of the past,” said Schneiderman in a public statement. “People should not have to keep the day open, arrange for child care, and give up other opportunities without being compensated for their time.”
Does Your Employer Owe You Money?
Employees are required under federal and state laws to pay employees minimum wages, overtime pay, and in some cases, modification pay for canceled shifts. If an employer has denied you your pay, you may be entitled to compensation. Contact ClassAction.com today for a free case review.
The 9/11 terrorist attacks marked the second deadliest day on U.S. soil—second only to the Civil War’s Battle of Antietam. However, unlike some battles and acts of terror, we are still counting the casualties of 9/11 to this day.
The traumatic scenes and the dust cloud that encompassed Lower Manhattan are still affecting the lives of hundreds of thousands of survivors. While the mental health issues this group faces have been known for a while, we are only now beginning to understand the long-term effects of the toxic dust.
400,000 Were in the World Trade Center Disaster Area
Overall, it’s estimated that 400,000 were in Lower Manhattan on the morning of September 11, 2001. This group includes workers who fled the towers; rescue workers; passerby who got caught in the cloud; and the people who lived, worked, or went to school in Lower Manhattan.
Health professionals worry that many in this group aren’t coming forward because they weren’t part of the rescue mission or in the towers. However, the deadly dust and the psychologically traumatic events did not discriminate between first responder or passerby: Anyone in the area could face health complications.
As of July 2016, independent reports estimated that1,140survivors had died from 9/11 complications.
12,000 Suffered From Mental Health Issues
Rescue workers, cleanup workers, and those who were near Ground Zero and watched the events unfold suffer from a host of mental health issues, including PTSD, depression, memory loss, panic attacks, and substance abuse.
Those who had greater exposure to the events were twice as likely to binge drink 5 to 6 years after the attack.
Passerby suffered the highest rates of PTSD symptoms.
Mental health experts argue that non-emergency workers suffered more from PTSD because they weren’t necessarily trained to cope with disasters. In fact, the WTC Health Registry discovered that passerby suffered the highest rates of PTSD symptoms of any other group affected by the attacks (23.2%).
What makes the events of September 11th particularly hard to recover from are the towers’ noticeable absence.
In an article for The New York Times, Charles Figley, professor of disaster mental health at Tulane University, explained how for many, the towers were part of the fabric of daily life, near where people lived, worked, and went to school.
“You go into a combat zone and then you leave. You don’t leave home. You return all the time,” said Professor Figley.
9/11 Cancer Diagnoses Triple
In addition to carrying traumatizing memories with them, survivors and rescue workers also carry the deadly dust that was released into Lower Manhattan for months afterwards. The dust (largely made up of pulverized concrete and building materials) coated passerby and the insides of homes and offices nearby when the towers collapsed.
Dr. Michael Crane described the dust as a “witch’s brew.”
Dr. Michael Crane, director of the World Trade Center Health Program’s lead clinical center at Mount Sinai, described the dust as a “witch’s brew”: “What we do know is that it had all kinds of god-awful things in it. Burning jet fuel. Plastics, metal, fiberglass, asbestos. It was thick, terrible stuff.”
Studies show that the dust had high pH levels of 10 and 11 (7.4 is considered healthy). Even worse, ongoing fires at the site of Ground Zero continued to release toxic fumes in the air for months.
New Yorkers, however, were told the air and dust were safe. It was recommended that landlords and building owners professionally clean their properties, but it was never enforced.
These numbers, however, only reflect the patients who have enrolled in the federal health program, and are just the earliest wave of cancer diagnoses. Since it can take cancer 15 to 20 years to show symptoms, we are only seeing the first incidents.
Dust Inhalation Caused More Damage Than Years of Smoking
Immediately after the attacks, New Yorkers filled hospitals with difficulty breathing. The dust took such a toll on lungs that it gave birth to a deadly cough: the “World Trade Center cough” (WTC cough). The persistent cough is accompanied by breathlessness, wheezing, and often acid reflux and nasal congestion.
Since emergency workers were exposed to the dust for longer periods of time, they are particularly susceptible to WTC cough and other health complications. In 2004, researchers discovered that lungs of first responders were more damaged than longtime smokers. CT scans revealed dark spots where air was trapped in the lungs. Using a scale of 0 to 24 (with 24 being the worst) to rate the severity of the problem, researchers put a typical smoker’s lung somewhere between 0 and 4 and a 9/11 rescue worker at 10.55.
Since the attacks, it’s estimated that more than 32,000 in the disaster area have been diagnosed with asthma, COPD, and WTC cough. For many, survivors will have these chronic conditions for life.
Legal Options for 9/11 Victims and Survivors
Just this year, Congress pledged their support for 9/11 victims by amending the Foreign Sovereign Immunities Act, allowing victims and their families to sue Saudi Arabia for their alleged involvement in the terrorist attacks. If you have questions about your eligibility for a lawsuit, contact ClassAction.com today. We’ll answer your questions and provide you with a free, no-obligation legal review.
The cancer-causing side effects of asbestos exposure are well known, but less known is that the mineral is still used and imported in the U.S.
Asbestos is a carcinogenic mineral that was commonly used in building materials (insulation, roof shingles, cement, etc.) for its durability and fire retardant properties. Cosmetic companies also used asbestos-laced talcum for its powder-like consistency.
Once research showed that asbestos caused cancer in the 1970s, its use sharply declined and it was restricted. However, the U.S. is still allowed to import asbestos and some products that have historically used the chemical are allowed to continue to do so.
Despite 10,000 pages of evidence showing the hazardous effects of the chemical, the asbestos industry shot down the proposed ban.
In 1989, the EPA attempted to ban asbestos. Despite 10,000 pages of evidence showing the hazardous effects of the chemical, the asbestos industry shot down the proposed ban in a federal appeals court.
Congress Pressures EPA to Review Asbestos
The failed ban is a symptom of an overly complex system that leaves the EPA at times powerless. Since the agency’s creation 40 years ago, only five chemicals have been banned and just a small percentage of the 62,000 chemicals on the market have been reviewed.
“The system was so complex, it was so burdensome, that our country hasn’t even been able to uphold a ban on asbestos, a known carcinogen.”
Said President Obama upon signing the amendment, “The system was so complex, it was so burdensome, that our country hasn’t even been able to uphold a ban on asbestos, a known carcinogen. I think a lot of Americans would be shocked by all of that.”
The EPA is scheduled to announce the first 10 chemicals for review in December. Since Congress singled out asbestos when creating this act, many hope it will be the EPA’s priority.
Senator Barbara Boxer (D.-Calif.) wrote to EPA Administrator Gina McCarthy to consider asbestos as a priority chemical: “To build confidence in the agency’s ability to deliver meaningful results for our children and families, EPA must consider all forms of asbestos in this initial list of chemicals it acts on.”
Asbestos Exposure Can Lead to Mesothelioma Decades Later
Asbestos inhalation can severely damage the lungs, resulting in diseases like mesothelioma—a fatal form of cancer—years or even decades after exposure.
Mesothelioma is an extremely aggressive form of cancer. 10,000 Americans die from the disease every year. Though asbestos exposure can result in a host of medical conditions, mesothelioma is only caused by exposure to asbestos.
When asbestos fibers are inhaled, they stick inside the lungs for years. With each inhalation and exhalation, these fibers create abrasions that can eventually develop into cancerous tumors.
Who is at Risk?
Anyone who is exposed to asbestos is at risk of developing mesothelioma. However, those who were regularly in direct contact with asbestos materials are even more at risk. These groups include:
Veterans (especially from the U.S. Navy)
9/11 Rescue Workers Are Twice As Likely to Develop Mesothelioma
When the twin towers collapsed on September 11, 2001, the building materials released 2,000 tons of asbestos fibers into the air, creating a toxic dust that coated the Financial District.
While cleaning up the disaster zone and searching for bodies, first responders inhaled lethal amounts of asbestos, often with inadequate protection. It is estimated that 41,000 people in total were exposed to asbestos after the disaster.
Between the 1930s and 1970s, virtually every U.S. Naval ship contained several tons of asbestos, mostly in the ships’ insulation, pipes, and doors.
Now, veterans and Naval shipyard workers are paying the price. Though veterans only make up 8% of the U.S. population, they make up 30% of mesothelioma deaths.
In April of this year, a federal jury in Arizona awarded $17 million in damages to the family of the late George Coulbourn. Mr. Coulbourn worked at the Norfolk Naval Shipyard in Virginia, where he contracted mesothelioma.
In December of 2014, the family of a former Naval shipfitter received a similar verdict in their favor, totaling $20 million. The family sued the U.S. Navy’s boiler manufacturers for using asbestos in their materials.
Talcum-Based Products Used Asbestos Until the 1970s
Asbestos was also commonly found in Talcum-based products, like baby powder, shave talc, etc. prior to the 1970s. However, many mesothelioma diagnoses are just now being discovered.
If you or a loved one were diagnosed with mesothelioma, you may be entitled to compensation. Many companies knew for decades that any exposure to asbestos was dangerous, yet they continued to endanger the health of workers and consumers.
Contact ClassAction.com today for a free, no-obligation legal review. Our attorneys have recovered millions of dollars for hundreds of mesothelioma victims across the United States.
Tyson Foods has never had a saintly reputation, but that hasn’t stopped it from growing into a poultry powerhouse and America’s largest producer of meats. In 2015, Tyson Foods raked in $41 billion in sales.
But several major scandals, a slew of class action lawsuits, one damning report from Pivotal Research, and another from Oxfam have left investors scattering.
Since September 22, Tyson’s share price has dropped from $76.76 to $70.67 (as of this writing), at times bottoming out at $67.75—its largest dip in six years. Meanwhile, the Supreme Court and a U.S. District Court in Iowa recently upheld a $6 million award for Tyson employees who hadn’t received full pay for their labor.
If the new antitrust charges stick, those financial blows could be just the beginning.
On September 2, 2016, New York-based Maplevale Farms filed an antitrust lawsuit in Illinois alleging that the $30 billion poultry industry had hatched a scheme in 2007 to inflate and fix chicken prices. That class action has since spawned five others, which will likely be consolidated into a multi-district litigation (MDL) later this year.
Of course, if the Justice Department deems this a legitimate antitrust case, they could take the reins of the lawsuit.
Among the 14 defendants are Tyson, Perdue Farms, Pilgrim’s Pride, Sanderson Farms, and Simmons Foods. The lawsuit claims that Big Chicken jointly agreed to limit production (in some cases by simply killing off chickens early) and raise prices on chicken.
The complaint says this was a coordinated, industry-wide effort facilitated in part through a data service called Agri Stats, which allows these companies to track each other’s propriety information.
Since 2007, chicken prices—which historically fluctuate over time—have risen steadily.
Peter Carstensen, a former antitrust lawyer for the Justice Department, tells Bloomberg, “It makes sense to cut back production if, and only if, your competitors cut back, too.”
Mr. Carstensen seems bullish on the antitrust lawsuit, saying, “You’re asking the court to infer collusion. With Agri Stats, those meetings, and then, if you can line up the conduct to show reasonable uniformity, that would pretty much do it.”
Pivotal Report Reverberates on Wall Street
Like Peter Carstensen, Tim Ramey—a stock analyst for the Pivotal Research Group—feels that “the narrative of this suit fits the fact-pattern of poultry pricing and margins over the past seven years.”
“The narrative of this suit fits the fact-pattern of poultry pricing and margins over the past seven years.”
Mr. Ramey called the lawsuits “powerfully convincing” and wrote, “If [the allegations are] true, it explains a lot. It explains why Tyson can offer EPS guidelines with remarkable precision; boasting of margins at record levels well into the future.”
Unfortunately for Tyson, these antitrust suits are not the only class actions threatening its business.
In March the Supreme Court voted 6-2 to uphold a $5.8 million award for Tyson workers in Storm Lake, Iowa who had not been paid for the time spent at work donning and removing protective gear: a clear violation of the Fair Labor Standards Act (FLSA).
Tyson wanted the case thrown out, claiming there was not enough evidence to determine the damages owed each worker. According to Mother Jones, the company also wanted
the court to issue a broad ruling that would effectively immunize it against future class actions for wage and hour theft, and make it much harder for workers everywhere to join together to bring such claims. If it wins this case, Tyson could have it both ways: It could effectively continue to violate the FLSA and escape liability for it in court.
Thankfully the Supreme Court did not let that happen. But Tyson didn’t stop there: in June, the company asked the U.S. District Court in Sioux City, Iowa for a retrial. Judge John Jarvey denied that appeal.
It looks like Tyson will just have to pay its workers what they’re owed—which is the least it can do, given how the company allegedly treats them.
The report alleges that poultry workers “earn low wages, suffer elevated rates of injury and illness, toil in difficult conditions, and have little voice in the workplace.”
Incredibly, Oxfam also writes that, due to long hours and a lack of adequate bathroom breaks,
Workers urinate and defecate while standing on the line; they wear diapers to work; they restrict intake of liquids and fluids to dangerous degrees; they endure pain and discomfort while they worry about their health and job security. And they are in danger of serious health problems.
“The vast majority of workers report a lack of adequate bathroom breaks,” the report says.
Tyson denied Oxfam’s claims, while the National Chicken Council questioned their validity given the workers’ anonymity.
But if the “No Relief” report is true, Tyson could soon have yet another class action lawsuit on its hands.
Wells Fargo must pay $185 million in fines for secretly opening unauthorized debit and credit card accounts for customers in a scheme engineered to boost stock prices and executive pay.
The money will go to the Consumer Financial Protection Bureau, the City and County of Los Angeles, and the Office of the Comptroller of the Currency. Also in line to receive restitution are the victims of the scheme, who had accounts unwittingly opened in their names.
But while governments and consumers have scored a victory in the scandal’s resolution, there has been no financial relief for Wells Fargo employees claiming they were fired or demoted for playing by the rules and not opening secret accounts to meet sales quotas.
“Cross-Selling” Goes Back to at Least 2002
Federal regulators say Wells Fargo employees opened 1.5 million bank accounts and applied for 565,000 credit cards without customers’ permission. The bank has fired more than 5,000 employees involved in the scheme.
During a Senate Banking Committee hearing, Wells Fargo CEO John Stumpf defended the bank’s publicly stated goal of opening eight accounts per customer, whch it calls “cross-selling.” Wells Fargo set the goal of eight accounts as early as 2002, according to a Public Citizen report.
Stumpf earned $19.3 million in 2015 as the company’s stock became a Wall Street favorite. Wells Fargo is currently the most valuable bank in the world.
“Cross-selling is shorthand for deepening relationships,” he told the Committee.
Stumpf said Wells Fargo fired workers between 2011 and 2015 for the sales practices in question, but also said the issue didn’t reach the board level until 2013. He claims he wasn’t personally aware of the extent of the problem until 2015.
He maintained there was no orchestrated deception by Wells Fargo, and that the 5,300 employees it fired for creating false accounts were acting independently.
But this explanation does not square with the claim made by regulators and former workers that Wells Fargo employees were encouraged to open the unauthorized accounts through a compensation scheme that awarded them for increasing their cross-sale numbers.
Former Wells Fargo Workers Sound Off
Dennis Russell, a telephone banker with Wells Fargo in Orange County, California for five years, said he was fired in 2010 for not meeting sales quotas. He told the New York Times that he couldn’t legitimately offer banking products to the customers he spoke with because many of them were already behind on their mortgages, credit cards, and cars.
“They established the culture that made this happen—it comes down from the top.”
Russell lost his home after losing his job with Wells Fargo. He scoffs at John Stumpf’s claim that the bank did not encourage fraudulence in the pursuit of cross-sale quotas.
“It’s a crock,” Russell said. “They established the culture that made this happen—it comes down from the top.”
Christopher Johnson told the Times he was fired from Wells Fargo in 2008 after a five-month stint as a business banker for refusing to go along with pressure from his manager to open accounts for his friends and family, even if he didn’t have their permission to do so. He reported his concerns to the company’s ethics hotline and was fired three days later for “not meeting expectations.”
Johnson lost his home and possessions and spent the better part of a year living out of his truck.
Hold Wells Fargo Accountable
The Wells Fargo scandal is just the latest example of executives at major companies concocting schemes that benefit them at the expense of low-level employees.
If Wells Fargo will not do the right thing and compensate the real victims of its fraud—the employees that were fired for not engaging in unethical business practices—it is up to the workers themselves to demand justice.
If you are a former Wells Fargo employee who refused to set up accounts without customers’ knowledge and were punished for it, we would like to hear from you. Contact us for a free, confidential case review.
From January to June, the company recorded losses of $1.2 billion. (In 2015, Uber lost $2 billion.)
In July, after two years and two billion dollars lost in China, Uber bowed out of the country, selling its operations there to hated rival Didi Chuxing.
On August 18, a judge rejected the $100 million settlement Uber had reached with drivers in California and Massachusetts over their independent contractor misclassification. Two weeks later, The Wall Street Journal reported that Google would launch its own ride-sharing service via popular route-finding app Waze.
From January to June, Uber recorded losses of $1.2 billion.
Finally, in October, New York’s Department of Labor ruled that Uber drivers are employees—a ruling echoed later that month by three London judges.
Oof. Even for The Most Valuable Startup in the World, that has to hurt.
It would be hyperbole to say that Uber is in danger of failing. (A $62 billion valuation affords at least a little security.) But, unlike a year or even six months ago, one can now conceive of a world in which Uber falters.
Here are the three greatest threats to the ubiquitous ride-sharing service.
Uber faced 50 federal lawsuits in 2015: more than Lyft, Instacart, Handy, and Airbnb combined. They outpaced these other gig economy companies in 2014, 2013, and 2012 as well.
They have fought more legal battles than billion-dollar startups Snapchat, Pinterest, WeWork, Dropbox, SpaceX, and Palantir (whatever that is). And the end is nowhere in sight.
In April 2016, a $100 million settlement was reached in two class action Uber lawsuits representing 385,000 drivers in California and Massachusetts.
Scores of drivers filed objections to the deal, which they considered unfair. The lead plaintiff, driver Doug O’Connor, fired his attorney. In a formal objection filed with the court, Mr. O’Connor said that the deal “is not in my interest or in the interest of any Uber driver.”
U.S. District Judge Edward Chen agreed. On August 18, 2016, he rejected the Uber settlement, saying it was not “fair, adequate, and reasonable” for drivers. (These cases will now go to arbitration.)
Judge Chen noted that the amount offered to drivers was just ten percent of what the Uber lawsuit claimed drivers were owed: $1 billion.
Dozens of Uber lawsuits are still pending in courts nationwide. In addition to monetary losses, Uber should dread the potential of a judge ruling that Uber misclassifies its employees as contractors.
In his decision, Judge Chen also emphasized that under the terms of the settlement Uber would pay just $1 million in state penalties—which could otherwise total more than $1 billion.
Two weeks later in Pennsylvania, a state regulator reinstated an $11.4 million fine against Uber for exactly these kinds of penalties. This fine arrived about six months after California’s Public Utilities Commission (CPUC) hammered Uber with a $7.6 million fine for shirking state regulations.
The Pennsylvania Public Utility Commission (PUC) says that Uber operated illegally in the state from February to August 2014, providing almost 123,000 rides without state approval. According to the PUC, Uber also obstructed the state’s investigation into its dealings.
Two judges originally set the fine at $49.9 million, but the PUC reduced the total to $11.4 million—against the wishes of state officials.
Uber vowed to appeal, calling the fine “absurd.” But decisions like the PUC’s and CPUC’s often establish a precedent. What is to stop the other 48 states from issuing similar (or even higher) fines?
Moreover, as Uber knows all too well, global expansion is expensive. The startup has met resistance in Australia, Belgium, Brazil, Denmark, France, and countless other countries. Adapting to each nation’s unique laws, waging lengthy legal sieges, and fighting taxi unions costs a lot of money.
In China, Uber tried for two years to make it work. After $2 billion in losses, they threw in the towel.
In May, Google launched an exclusive carpooling service in the Bay Area. Now, through the Waze app, Google is expanding that soft opening so that anyone in San Francisco or Oakland with Waze can request a ride.
The service costs a maximum of just 54 cents per mile, far cheaper than Uber or Lyft. Though it is currently just a carpooling service, presumably Waze will broaden its offerings to include the kinds of on-demand rides made famous by Uber and Lyft.
And like Uber, Waze may not need drivers to do so.
Google’s Self-Driving Car Project (developed by Google X) has been in the works for a decade, with the aim of releasing these cars into the wild in 2020.
It is easy to envision, then, a scenario in which Google/Waze spends the next four years building a ridesharing infrastructure and customer base across the country, and then replaces at least some of its drivers with driverless cars—which would save it a bundle.
In the meantime, Google can learn from Uber’s mistakes and either classify its (human) drivers as employees or offer them similar reimbursements, tips, and other employee rights that Uber has failed to deliver. Because Uber has already waded through so much thorny legal territory (and continues to do so), Waze’s path should be much clearer and smoother.
Uber is the most valuable startup in the world, but Google’s parent company Alphabet Inc. is The Most Valuable Company in the World, with a market value of $546.50 billion: nine times that of Uber.
Uber is a giant, but Google is a god. It has several advantages over Uber (money, branding, experience) and could very well take the startup down—or, more likely, over—in the long run.
July’s jobs report appeared to be great news for the U.S. economy. It showed that 255,000 new jobs were added—well above economist expectations—while the unemployment rate remains unchanged at 4.9 percent, the lowest it’s been since 2008.
To hear the White House and mainstream media tell it, the jobs report is evidence of America’s continuing strong recovery from the Great Recession. America has added roughly 200,000 new jobs a month for about two years and regained all of the 8.7 million jobs that were lost in the Great Recession (and then some), essentially putting us back at what economists consider to be full employment.
A big part of the jobs story–and one that often goes untold–is job quality, not just job quantity.
Yet the economic view on the ground tells a different story. According to a July 2016 Pew Research Center survey, only 30% of Americans believe that economic conditions in this country are “excellent/good,” while just 1/3 believe that economic conditions will improve in a year. A recent CNN poll found that 56% of Americans think their kids will be worse off financially than them. Shockingly, 47% of Americans responded to a Federal Reserve survey saying they didn’t have $400 in savings to cover an emergency.
This economic unease has fueled anti-establishment presidential candidates Donald Trump and Bernie Sanders, both of whom placed messages of economic unfairness at the center of their campaigns. Polls consistently show that the economy is the most important issue of the 2016 campaign, ahead of terrorism, health care, and education.
So what is fueling Americans’ concerns about the economy? Why are so many living paycheck to paycheck in the midst of supposedly improved economic times?
A big part of the story is job quality, not just job quantity. We are seeing the rise of the so-called “contingent worker,” a group that includes contractors and non-traditional workers who aren’t tethered to a single employer—and who also aren’t provided the benefits, legal protections, and security that come with full-time employment. By one estimate, all of the net economic growth of the last decade occurred in contingent work arrangements.
The shift to a contingent workforce is in some respects the result of a changing economy. But companies have also unfairly eliminated labor costs by shifting employment to other parties and misclassifying employees as independent contractors.
The Department of Labor considers employee misclassification a serious problem that harms the entire economy and is cracking down on the practice. Recent court rulings may also make it more difficult for companies that depend heavily on independent contractors to avoid responsibilities to workers through outsourcing. Additional challenges to harmful employer practices such as misclassification makes it incumbent upon workers to know the law and understand their rights.
David Weil literally wrote the book on how companies’ outsourcing of work has changed not only the economy, but the nature of employment.
“The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It” landed Weil, a former economics professor at Boston University, a job as head of the Wage and Hour Division at the Department of Labor.
“Our basic mission at Wage and Hour is pretty simple: making sure people get a fair day’s wage for a hard day’s work,” said Weil. “The difficulty is the workplace has changed dramatically in the last 20 years.”
In Weil’s view the workplace has “fissured” as companies, responding to changing market pressures, cut labor costs as part of a broader strategy to become leaner and more agile, in the process shedding their role as direct employers of workers.
Throughout most of the 20th century market changes were slow and incremental, and consumer tastes were relatively simple. Production was based on a “push” strategy of forecasted demand. This allowed companies to focus on economies of scale, or gaining a cost advantage via increased output.
Work, reflecting these trends, was repetitive but stable. Workplace technology changed slowly, with workers provided ample time to learn new skills. The main employment relationship was between large businesses—such as General Motors, US Steel, IBM, and Xerox—and the workers that made their products. Direct, long-term employment with a single company was the norm.
All of this began to change in the late 1980s and early 1990s as globalization and technology reshaped the economy. Operating in tandem, these forces expanded the competitive landscape and created virtually endless new market opportunities.
More sophisticated consumers began a shift to a “push” economy. Change became fast, dynamic, and constant. Facing increasing pressures to adapt to market changes, businesses began to shed activities considered peripheral to their core business models, shifting their focus to product differentiation and market niches. Maintaining brand integrity (and thus loyal patrons) and driving down costs emerged as the pillars of success in this new economy.
Unfortunately for workers, they are viewed as low hanging fruit when it comes to cost cutting. Keeping a full-time workforce is expensive. Employee expenses such as federal (FICA) payroll taxes, unemployment and workers’ compensation insurance contributions, health and retirement benefits, and paid time off add 25% – 30% to payroll costs. Only employees are required to be paid the minimum wage and overtime, and employees have much more robust legal protections for things like workplace accidents, discrimination, exploitation, and wrongful termination.
Businesses realized they could farm out to a network of providers jobs that were once handled internally. In so doing they created competitive markets for services that allowed them to eliminate direct employment costs.
In short, businesses still receive the benefit of workers’ labor without serving as their employer of record and assuming additional financial liabilities. Using business models such as subcontracting, temp agencies, labor brokers, franchising, and third party management, companies push apart the longtime bedrock of the U.S. economy—the employer-employee relationship—leading to what Weil calls the “fissured” workplace.
Weil admits that fissuring does not always result from companies’ desire to avoid payroll costs. As markets have changed, so have the role of workers. A static workforce doesn’t make as much sense in a business environment requiring continual reflection and reorganization. The rigid, 9-5 enterprise structure of employment is becoming obsolete. In today’s leaner enterprise, teams are formed around projects that make use of contingent labor and independent experts. Once a project is completed, teams can be disbanded and new ones formed on an ad hoc basis.
From this perspective, contingent workers increase business efficiency, agility, and flexibility. They not only cost less than employees, but also turn employment expenses into variable costs for services, rather than fixed labor costs.
Weil believes, however, that this model allows companies to have their cake and eat it too. By calling some workers “independent contractors” and hiring others through agencies, companies are able to avoid some of the burdens—but not the benefits—of having employees. Contingent workers contribute to building a brand that reaps great profits for the lead company, but don’t receive job-based health and retirement benefits or the minimum wage, overtime, and other labor law protections.
Rise of the Contingent Worker
To illustrate the workplace that has cracked and split apart, Weil uses the example of a hotel operating under a well-known international brand. The workers who greet guests, clean rooms, landscape, and prepare food are likely not hotel employees, or even employees of the hotel brand. They are more likely employed by another business offering hotel management services.
“All of the net employment growth in the U.S. economy from 2005 to 2015 appears to have occurred in alternative work arrangements.”
Such blurred lines of employment are not limited to the hospitality industry. Awareness has grown of the reliance on contract labor in the so-called “gig economy” comprised of tech industry startups companies such as Uber, Lyft, Handy, and Taskrabbit. But it’s also the workers who deliver packages, install cable and internet, drive taxis, provide security, perform construction work who have an arm’s length relationship with those companies that appear to employ them. In fact, even professionals such as doctors, lawyers, financial advisers, and education and health service providers are falling through the employment cracks.
Identifying the size of the contingent workforce is tricky due a lack of standardized terminology. Depending on the definition used, contingent workers make up less than 5% to as much as 40% of the total labor force. Estimates are also difficult in the absence of comprehensive, nationally representative data.
From 1995 to 2005 the Bureau of Labor Statistics (BLS) administered a survey known as the Contingent Work Supplement (CWS), a supplement to its monthly Current Population Survey (CPS). BLS administered the CWS in 1995, 1996, 1999, 2001, and 2005. Since 2005 BLS has not received funding to administer the supplement.
In the absence of the CWS public and private organizations have attempted to fill in data gaps. The RAND Corporation, for example, conducted a version of the CWS that counted workers engaged in “alternative work arrangements,” defined as temporary help agency workers, on-call workers, contract company workers, and independent contractors (freelancers). The Government Accountability Office (GAO), relying on data from the CWS and other government surveys, uses these same categories of alternative work arrangements but adds to them self-employed workers and part-time workers.
Using GAO’s definition of alternative work arrangements, contingent workers comprised 30.6 percent of the labor force in 2005 and 40.4 percent in 2010. Contract company workers, on-call workers, and agency temps—what GAO calls “core contingent arrangements”—made up 5.6% of the workforce in 2005 and 7.9% in 2010.
RAND, comparing BLS CWS data to figures derived from its 2015 RAND-Princeton Contingent Worker Survey (RPCWS), found a rise in the incidence of alternative work arrangements from 10.1% in 2005 to 17.2% in 2015—an increase of more than 50 percent. Using combined CWS/RPCWS data shows that from 1995 to 2015 the proportion of workers in alternative work arrangements increased by nearly 85% (9.3% to 17.2%).
The Great Recession appears to have accelerated the trend towards companies hiring more contingent workers. According to RAND, from 2005 to 2015 total U.S. employment increased by 9.1 million (6.5%), but traditional full-time employment actually declined by 0.4 million (0.3%). These estimates caused RAND to speculate that “all of the net employment growth in the U.S. economy from 2005 to 2015 appears to have occurred in alternative work arrangements.”
And the growth continues. Enterprise software company Intuit says that more than 80% of large corporations plan to substantially increase their use of flexible workers in coming years. Intuit predicted in 2011 that by 2020, contingent workers will exceed 40% of the workforce—an estimate that is already outdated. Many now expect that at the turn of the next decade contingent workers will make up 50% of the workforce.
Independent Contractors in Focus
The most common form of alternative work arrangement is independent contracting. Definitions of independent contractors (ICs) vary depending on context. The BLS, GAO, and RAND generally agree that ICs “obtain customers on their own to provide a product or service.” Business consulting services group Navigant specifies that ICs:
Work at multiple projects simultaneously
Move frequently from project to project
Exercise significant autonomy relative to their “client”
Often bring their own tools or equipment to the project
Independent contractors are considered to be “self-employed,” but not all self-employed workers (such as restaurant owners) consider themselves to be independent contractors. ICs may also be referred to as “independent consultants” and “freelancers.”
Insofar as ICs are differentiated from employees, the surest means of identification is how income is reported. Unlike employees, who report income on an Internal Revenue Service (IRS) Form W-2, independent contractors report income on Form 1099-MISC.
Approximately 1 out of 10 U.S. workers is considered to be an independent contractor. Varying definitions and data sources make it tough to pin down the precise number, however. GAO data puts the number of ICs as high as 15-16% of the labor force, while RAND data has the number of ICs at 9.6% of the labor force (as of 2015).
The total percentage of ICs in the workforce increased by about 50% from 1995 to 2015. IC characteristics have also changed, most notably in relation to gender and occupation. Although the number of male ICs has remained stable at around 8-9% of all workers, the number of female ICs has nearly doubled over the last 20 years. Industries that have shown the largest shifts in IC workers include Construction (down 5%), Manufacturing (up 4.8%), Education and Health Services (up 8.8%), and Agriculture, Forestry, Fishing, and Hunting (up 26.8%).
Employees or Independent Contractors?
The use—and misuse—of independent contractors is a topic of considerable controversy.
On the one hand, surveys show that many workers prefer independent contractor relationships to employment relationships. The BLS reports that 82.3% of ICs prefer working independently to being an employee. A Pew Research Center survey found that 39% self-employed workers are “completely satisfied” with their jobs compared to 28% of employees. Flexibility, autonomy, and a path to entrepreneurship are cited as the top reasons why workers prefer independent contracting.
Compared to employees, contingent workers earn less and receive fewer benefits, have less economic security, and are more likely to require public assistance.
For skilled workers who reap the benefits of selling their services to businesses while maintaining autonomy, self-employment can indeed be a profitable career path. Yet other workers are caught in a grey area between employee and independent contractor. They may be economically dependent on and have their work controlled by a single company that appears to be an employer, but that company might consider them a contractor, not an employee. An estimated 10-30% of employers misclassify their employees as independent contractors.
The intentional misclassification of employees as independent contractors is a problem for workers, governments—and if they’re caught breaking the law—employers. While the practice allows employers to save 25-30% on payroll costs, it denies misclassified employees access to benefits and protections. Research shows that, compared to employees, independent contractors and other contingent workers earn less and receive fewer benefits, have less economic security, and are more likely to require public assistance. Misclassification also results in lower tax revenues and losses to state unemployment and workers’ compensation funds.
Governments Crack Down
Lax enforcement of independent contractor laws prevailed throughout the 1990s and the early 2000s, but since 2007 federal and state regulators have been cracking down on misclassification.
The Department of Labor has been hiring more investigators to “detect and deter” misclassification, prosecuting more companies believed to be misclassifying workers in order to avoid paying overtime and the minimum wage, and providing grants to state workforce agencies to increase enforcement efforts.
DOL refers to these efforts as a “Misclassification Initiative.” From 2009 to 2015 the agency estimates it has recovered nearly $1.6 billion in back wages for 1.7 million workers. The IRS, through its Questionable Employment Tax Practices program, Voluntary Classification Settlement Program, and regular audit processes has likewise sought to crack down on employee misclassification. Many state workforce agencies, particularly in left-leaning California, Massachusetts, and New York, have also been diligent in pursuing businesses believed to be misclassifying employees as independent contractors.
Independent Contractor Misclassification Lawsuits
Workers are increasingly taking matters into their own hands and challenging their status as independent contractors in class action lawsuits.
Misclassification lawsuits have been on the rise in recent years, with high-profile cases filed by couriers, exotic dancers, and drivers for on-demand ride companies Uber and Lyft, among others.
In 2016 alone, FedEx, Uber, and Lyft have reached settlements with workers worth $240 million, $100 million, and $27 million, respectively.
These cases reveal a common thread used to determine whether a worker is an employee or a contractor: the degree of employer control over the manner in which work is performed.
FedEx ground workers argued that they were employees because FedEx assigned them specific routes, required them to check in with managers at the start of the day, and regulated their appearance and equipment. Uber and Lyft drivers similarly argued that they were subjected to a litany of detailed requirements that, if not followed, could result in their termination. Even exotic dancers have used these arguments to win misclassification cases, saying that they were denied flexibility in their choice of working schedule, told how to dress, and made to perform a certain number of dances.
But settlements, although they can provide compensation for workers in the form of back wages and expense reimbursement, usually don’t provide clarity on worker status because companies often agree to a settlement only if they are allowed to continue treating workers like independent contractors. As part of the Uber and Lyft settlements, for instance, drivers remain independent contractors. In contrast, when a case is decided at trial, the court is allowed to rule on whether a worker is an employee or a contractor, which can lead to a worker receiving significantly more protections moving forward.
Misclassification lawsuits are typically filed in federal court under the Fair Labor Standards Act (FLSA), a federal law that guarantees employees the federal minimum wage and overtime pay for more than 40 hours worked in a week. Because many states have minimum wage and overtime laws that are more generous than federal laws, workers may also bring state-level misclassification lawsuits. In most wage and hour cases plaintiffs file in federal court under both federal and state claims.
Since wage and hour laws only apply to employees (and not contractors), the key determination in these cases is whether a worker is an employee or an independent contractor. The FLSA uses a six-factor “economic realities” test to determine whether an “employment relationship” exists. This interpretation centers on the degree to which a worker is economically dependent on the business of the employer. All of the factors are considered in each case, and no single factor is determinative by itself.
Some states have their own labor laws and tests that are used to determine employment status. California begins with the presumption that the worker is an employee and uses an 11-factor economics reality test adopted by the California Supreme Court. Massachusetts has adopted an independent contractor law with a stringent 3-factor test that requires businesses to overcome a “presumption” of employee status.
New laws may ultimately be needed to address employee misclassification and other worker issues in the fissured economy.
Most worker protection laws were drafted decades ago, when the economy was starkly different than it is today. The FLSA was passed in 1938, a time when the U.S. economy was manufacturing-based, children were working long hours in factories, and the minimum wage was 10 cents per hour.
Legal experts have noted how the FLSA—which only applies to “employees” working for companies with a minimum business volume of $500,000—has contributed to misclassification and the farming out of labor to smaller companies. These provisions create incentives for businesses to shed employees, designate others as independent contractors, and hire temps. They additionally have led employers to use holding companies, shell operations, franchises, and other creative structures to avoid wage and hour laws on the grounds that each entity is an independent employer that does not reach the $500,000 threshold. These same entities might argue that they don’t meet the requisite number of employees needed to comply with the Family Leave and Medical Act (FMLA).
A recent National Labor Relations Board (NLRB) decision on contract labor could make it more difficult for companies to avoid legal responsibilities through outsourcing. NLRB voted in August 2015 to adopt a more expansive definition of what it means to be a “joint employer,” which should make it easier for contingent workers to organize their labor under the National Labor Relations Act (NLRA), which applies only to employees.
The case arose when a Teamsters local union argued that bargaining wouldn’t be effective unless it was able to negotiate with both a recycling company and the temporary staffing agency that provides its workers. NLRB agreed with the union’s assertion that the larger company determined working conditions and therefore should be considered a joint employer, saying that “its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.”
Since 2007 more than a dozen federal bills addressing independent contractor misclassification have been proposed and dozens have passed at the state level
On the misclassification front, since 2007 more than a dozen federal bills addressing independent contractor misclassification have been proposed and dozens have passed at the state level, from the Northeast to the Mountain West to the Deep South.
The Payroll Fraud Prevention Act, proposed in 2013 and again in 2014, sought to make the intentional misclassification of employees a federal offense, amend the FLSA to include a new category of workers (“non-employees”), and require every employer to inform employees and non-employees of their legal rights. In 2015 Congress introduced the Independent Contractor Tax Fairness and Simplification Act, a bill that acknowledges the important role legitimates ICs play in the economy but limits the definition of IC under the safe harbor provision of the Internal Revenue Code.
Congressional paralysis makes IC legislation unlikely before the 2016 elections. States, on the other hand, have proven to be much more successful at passing laws designed to curtail employee misclassification.
Modernizing regulatory policies and laws is necessary in a new economy that in many respects bears no resemblance to the old economy. As the nature of work changes, government has to change, too.
However, the question must be asked: can governments keep pace with the rapid changes that technology and globalization have made possible…or are they destined to remain one step behind?
David Weil of the Department of Labor believes that, despite the complications a changing workplace poses, government still has an important role to play in establishing norms of fair treatment. Fairness, he says, is a basic human idea. When a business creates value but the people who do the work don’t share equally in the profits, as occurs in the fissured workplace, income inequality and a general sense of unfairness results, often with wider political and social implications.
But in an economy that is pushing people towards ever-greater autonomy, it’s equally important for workers to know their rights and be their own best advocate. It is workers who have lost the most from workplace fissuring. And it is workers who have the most to gain from ensuring they receive a fair day’s pay for a hard day’s work.
1. DOZENS OF WRESTLERS HAVE SUED THE WWE OVER CONCUSSIONS AND UNFAIR CONTRACTS.
In July 2016, more than 50 wrestlers filed a lawsuit against World Wrestling Entertainment, Inc. (WWE) alleging that the company had recklessly endangered its performers, concealed the dangers of head injuries, misclassified wrestlers as “independent contractors,” and neglected its own Talent Wellness Program (including neurological testing/the concussion protocol).
The plaintiffs included Jimmy “Superfly” Snuka, Road Warrior Animal, “Mr. Wonderful” Paul Orndorff, Chavo Guerrero Sr., Chavo Guerrero Jr., King Kong Bundy, Marty Jannetty, Sabu, Mark Jindrak, and referees Dave and Earl Hebner.
This isn’t the first time wrestlers have sought redress from the WWE, of course. In 2008, a trio of former wrestlers—Scott Levy (aka Raven), Chris Klucsarits (aka Kanyon), and Mike Sanders—filed a lawsuit against the WWE over their independent contractor statuses. (You can read the full complaint here.) Given their fulltime (and then some) hours and the exclusivity of their WWE contracts, they felt—justifiably—that they were owed basic insurance and retirement benefits.
But the following year, the judge threw the case out due to the statute of limitations. The WWE has proved somewhat Teflon in court, save Jesse Ventura winning $800,000 in 1991 for owed royalties (more on him later).
In April 2016, the NFL settled a $1 billion lawsuit with 20,000 retired football players who—like the 50 wrestlers who sued the WWE over concussions—felt their employer had misled them about the risks of repeated head trauma. The key difference is that those players were fulltime employees of the NFL, not independent contractors, and they had proof that the NFL had masked and downplayed the risks.
Still, the 2016 WWE suit was modeled after the NFL one (as was the NHL concussion lawsuit), and if the judge determines that the statute of limitations does not apply, as the plaintiffs argue, it could net the wrestlers some small measure of justice for their myriad health issues and titanic medical bills.
Regardless of how this case and others play out, the way the WWE treats its performers has to change. Their lives depend on it.
2. CHRIS BENOIT AND ANDREW “TEST” MARTIN HAD CTE.
Many chalked up WWE star Chris Benoit’s horrific double-murder/suicide to “roid rage”—a steroid-induced belligerence that is most likely a myth, as suggested by a 2014 study in the medical journal Addiction and the acclaimed 2008 documentary Bigger, Stronger, Faster*.
Dr. Julian Bailes—co-director of the Brain Injury Research Institute—told ABC News, “There’s no consensus in the medical community that this issue of ‘roid rage… even exists.”
Dr. Bennet Omalu is the world’s foremost expert on CTE (chronic traumatic encephalopathy), and co-director of the BIRI with Dr. Bailes. (He was the subject of the 2015 Will Smith film Concussion, in which Dr. Bailes was played by Alec Baldwin.) Dr. Omalu says that Chris Benoit’s unspeakable actions were driven not by steroids but by the untold blows to the head he received over his 22-year wrestling career.
One of Benoit’s signature moves was a diving headbutt off the top rope. He once told Chris Nowinski, a former wrestler and medical doctor whose own career was cut short by head injuries (among others like Daniel Bryan, Corey Graves, and Christian), that he had suffered “more concussions than he could count.”
Nowinski, too, recalls wrestling “with bad headaches, and in a fog every night.” After retiring from the sport, he founded the Concussion Legacy Foundation, through which he has collaborated with Dr. Omalu.
Dr. Omalu examined Benoit’s brain after his suicide and said it resembled that of an 85-year-old man with Alzheimer’s. Benoit was 40.
He also conducted an analysis of the brain of Andrew “Test” Martin, a former WWE wrestler who died at age 33 from an oxycodone overdose. Martin, too, showed signs of CTE.
3. THEY AREN’T THE ONLY ONES.
In a 2009 Outside the Lines story, Dr. Bailes said, “With Andrew Martin as the second case, the WWE and the sport in general have to ask themselves, ‘Is this a trend?’ The science tells us that jumping off 10-foot ladders and slamming people with tables and chairs is simply bad for the brain.”
In response, the WWE doubted the “veracity” of the tests, adding:
Dr. Omalu claims that Mr. Benoit had a brain that resembled an 85-year-old with Alzheimer’s, which would lead one to ponder how Mr. Benoit would have found his way to an airport, let alone been able to remember all the moves and information that is required to perform in the ring.
The dense denial of those remarks is astounding. The WWE seemed to suggest that Benoit was of sound mind when he murdered his wife and son and then hanged himself on a weight machine, with Bibles laid out next to his loved ones’ bodies.
At least 20 wrestlers have killed themselves, including Benoit, Chris Kanyon, Mike Awesome, Sean O’Haire, Crash Holly, Tojo Yamamoto, Yukon Eric, “The Renegade” Rick Wilson, and Kerry Von Erich. Many suffered from depression and other mental disorders symptomatic of CTE. Kanyon reached out to Chris Nowinski before he died, saying he’d had at least 12 concussions and felt they had impacted his mental health. Nowinski “would not be surprised if Chris [Kanyon] was suffering from CTE when he passed away.”
Kanyon and the other names above belong in the same category as former football players like Junior Seau, Andre Waters, and Terry Long—all of whom showed signs of CTE and its resulting mental disorders, and all of whom committed suicide.
In 2015, Jimmy “Superfly” Snuka, one of the plaintiffs in the concussion lawsuit, was charged with the 1983 murder of his girlfriend Nancy Argentino. But in June 2016, a judge ruled Snuka mentally unfit to stand trial. Snuka did not know what year it was, and could not name the current President. (He would be reevaluated later that year.)
Given the state of Snuka’s, Benoit’s, and Martin’s minds, and the never-ending rash of industry deaths and suicides, it’s no wonder that wrestlers like Mick Foley, Kevin Nash, Rob Van Dam, and Chyna (R.I.P.) have all pledged to donate their brains to science after they pass.
4. DANIEL BRYAN RETIRED BECAUSE OF CONCUSSIONS.
Over the past several years, the WWE (like the NFL) has overhauled its concussion policy. It has banned dangerous maneuvers like Tombstone Piledrivers and chairshots to the head. Wrestlers who experience concussion symptoms must pass an ImPACT test and be cleared by doctors before returning to the ring. (For example, in May 2016, “Certified G” Enzo Amore missed three weeks after suffering a concussion at the Extreme Rules pay-per-view.)
One superstar whom WWE doctors would not clear was underdog-turned-top dog Daniel Bryan. In February 2016, the 34-year-old Bryan shocked the world by retiring at the peak of his powers. He did so with tears soaking his beard, telling the crowd:
Within the first five months of my wrestling career, I’d already had three concussions. For years after that, I would get a concussion here and there… and it gets to the point when you’ve been wrestling for 16 years that it adds up to a lot of concussions.
Bryan, who has reportedly suffered seizures from his numerous head injuries, added, “Maybe my brain isn’t as okay as I thought.”
The WWE deserves credit for telling Daniel Bryan “No,” and for instituting a concussion protocol a la the NFL’s (if only for PR reasons). But questions remain about the aim and efficacy of that protocol, and the quality of company doctors.
5. THE WWE’S MEDICAL DIRECTOR DOESN’T THINK CTE IS A BIG DEAL.
The WWE’s Medical Director, Dr. Joseph Maroon, is infamous for downplaying the prevalence and gravity of CTE. (He is played by Arliss Howard in the film Concussion; it is not a flattering portrait.) He calls the issue “over-exaggerated” and says that riding a bike or a skateboard is more dangerous than playing football. Though Dr. Maroon made the right call with Daniel Bryan, in general it’s hard to believe that he will take concussions and CTE as seriously as he should.
In a jaw-dropping interview on The Art of Wrestling podcast, former WWE Champion CM Punk—who, like Daniel Bryan, retired early for his health—said that the WWE medical staff allowed him to wrestle with concussions and other serious injuries despite his pleas for treatment. Punk said that post-concussion syndrome brought him to his knees after many matches, “and I’m either puking for real or I’m just dry heaving because I don’t have anything in my stomach. I have no appetite. I don’t know what is up and what is down. I can’t sleep. I can’t f***ing train.”
During the 2014 Royal Rumble—not coincidentally, his last match in the WWE—Punk claims that he rolled into the corner of the ring and told the doctor he was concussed, and that the doctor essentially replied:
(The doctor in question, Chris Amann, sued Punk and podcast host Colt Cabana for defamation, seeking $1 million in damages. That case was scheduled to go to trial in June 2016 and presumably has been settled.)
Punk also said (in stronger/bluer terms) that the WWE’s concussion test is a joke, that he passed it when everyone knew he was concussed. He believes that the WWE’s and NFL’s much-hyped concussion protocols are simply PR moves: “WWE doesn’t do anything to protect the wrestlers; they do things to protect themselves.”
Ride-hailing company Uber will pay $100 million to settle a pair of class action lawsuits in California and Massachusetts, but under the terms of the settlement drivers will remain independent contractors, not employees—a major win for Uber.
Under the settlement, Uber agrees to pay up to $100 million to 385,000 drivers in the two states, introduce a policy explaining the circumstances that will lead to drivers in these states being deactivated from the app, explain its decision to terminate drivers, give drivers more information about their individual rating and how it compares to their peers, and set up a driver’s association in both states. Drivers will also be permitted to post signs in their vehicles asking for tips. All of these concessions appease driver concerns.
“We believe the settlement we have been able to negotiate…provides significant benefits—both monetary and non-monetary—that will improve the work lives of the drivers and justifies this compromise result.”
Previously, Uber drivers could be deactivated from the app without much warning or recourse for declining a certain percentage of trips. As Tech Crunch notes, the new policy on accepting rides was likely key to the settlement, since requiring drivers to accept a certain percentage of trips could be seen as a job requirement appropriate for employees.
A new driver deactivation policy explains the circumstances in which drivers are denied access to Uber, and how (if at all) drivers can appeal a ban.
The attorney representing the Uber driver, Shannon Liss-Riordan, views the settlement as a victory for drivers. “We realize that some will be disappointed not to see this case go to trial,” Liss-Riordan said. “We believe the settlement we have been able to negotiate…provides significant benefits—both monetary and non-monetary—that will improve the work lives of the drivers and justifies this compromise result.”
Many experts, however, view Uber as coming out ahead in the settlement, because reclassifying drivers as employees would have forced Uber to pay for driver expenses and other job-based perks such as healthcare, costs that could have run into the billions of dollars and threatened the future prospects of the company’s high-margin business model.
The settlement must be approved by U.S. District Judge Edward Chen before it is binding.
While this particular deal applies only to drivers in California and Massachusetts, it should play a major role in determining the outcome of similar Uber litigation pending in other states.
Most Drivers Will Only Get $24 or Less From Settlement
$100 million sounds like a generous sum, but upon closer inspection, it turns out that the actual amount drivers receive could be as little as $10 in some cases.
To start with, the maximum value of the settlement is $100 million. Plaintiffs will receive an initial sum of $84 million, plus an additional $16 million if Uber goes public and its financial valuation increases 1.5x from its December 2015 valuation.
And according to MarketWatch, although some drivers may receive an $8,000 share of the settlement, most will get $24 or less, and some as little as $10. Payments will be calculated based on total miles driven, whether drivers signed an arbitration clause, whether they’re certified class members, and how many drivers actually file a claim. Named plaintiffs will receive an “enhancement” of up to $7,500.
Get Involved in an Uber Lawsuit
Uber class action lawsuits similar to those that just settled in California and Massachusetts are being filed nationwide. Drivers who think they aren’t being treated fairly by the tech company may be eligible to join an existing class action, or initiate one where they live.
Get answers to your questions about Uber lawsuits during a no-cost, no-obligation case review.