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Uber says drivers are independent contractors, drivers say they are employees

More and more employees in California are taking a hard look at the nature of their employment contracts.

Are they being denied benefits? Is their employer flaunting the law and not paying them formeal breaks or allowing rest time? Are they wrongly classified as independent contractors when in reality they are employees?

An Uber company driver is suing the company in federal court by invoking the Fair Labor Standards Act and alleging he is owed unpaid wages. Legal counsel is requesting that the court grant class action status to permit other drivers to join the suit.

This is not the first lawsuit of a similar nature that Uber is dealing with either. Three other drivers are making claims they are not independent contractors but rather employees and thus entitled to various benefits such as claiming expenses. In his statement of claim, Greg Fisher says he should be paid minimum wage, overtime wages (overtime must be paid after 40 hours of work per week) and other damages under the law that were not paid due to Uber classifying him as an independent contractor.

Fisher alleges he has driven for the company forstints of longer than eight hours. Of interest is that the California Labor Commission (CLC) has a decision on record that may impact Uber and other companies that utilize on-demand workers. The Commission ruled a specific Uber driver, Barbara Berwick, was indeed entitled to be paid for driving expenses, an amount of $4,152 which included toll fees she paid out while driving and a per mileage expense rate of 55 cents per mile.

The main question in these cases revolves around just how involved Uber is with its on-demand workers.According to the CLC, Uber not only approves drivers, but vets them first, dictates what cars they drive, tracks their ratings, controls the amount of money they earn by setting rates and manages driver access to the Uber application. Therefore, a driver is an Uber employee.

If you are in a questionable job situation and do not know if you are an independent contractor or not, talk to an experienced employment attorney who understands the labor laws in your jurisdiction. You may find out you are actually an employee and may be able to sue for unpaid and overtime wages that you are entitled to under the law.

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A retroactive court ruling on waiving a second meal break may change the legal landscape

Health care employers may face a flood of lawsuits based on a recent court ruling relating to Industrial Wage Commission (IWC) Wage Order 5.

Wage Order 5 has been interpreted by employers to mean workers are allowed to waive their right to a second meal break even when they work shifts that are longer than 12 hours. The California Court of Appeal ruling also made this decision partially retroactive, and this may mean employees can sue for missing their second meal break before the decision was handed down.

Three health care workers employed by Orange Coast Memorial Medical Center launched the lawsuit that ended up changing the second meal break waiver policy. All three worked shifts longer than 10 hours and sometimes worked more than 12 hours. The employees signed a second meal break waiver and thus when they did happen to work more than 12 hours, they were not provided with a second meal break.

The lawsuit alleged that the waiver violated California Labor Code (CLC) Section 512(a). This section bans waivers for workers on shifts of longer than 12 hours. The defendant said IWC Wage Order 5, Section 11(D), was an exception and provided employees working shifts longer than 8 hours with the ability to waive their right to one of two meal periods. When the the case was appealed after first being dismissed without a trial, the appeals court ruled that the CLC overrides IWC Wage Order 5.

According to the appeals court, the employer, “having received the benefit of its employees working without the statutorily mandated second meal periods, there is nothing unfair about requiring [the] hospital to compensate them for that time in accordance with the formula prescribed by the legislature.”

An urgent review of all meal break policies is likely needed. If workers pulling shifts of longer than 12 hours have waived their rights to a second unpaid meal period, that would suggest that the policy needs to be rewritten. How employers are going to tackle any potential lawsuits will be another contentious matter.

If the appeals court decision is appealed to the California Supreme Court, employees who have a signed waiver for their second meal break for a shift longer than 12 hours need to speak with an experienced employment attorney as soon as possible. This is even more important due to the fact that the decision applies retroactively.