Uber Eats and the Pandemic Economy

Armin Samii, a computer programmer who has been working part-time for Uber Eats, claims to have found evidence that the food delivery service has been routinely underpaying its drivers. Uber Eats’ policy is to pay its delivery works on a per-mile basis. This is the standard within the food delivery industry. However, according to a Google Chrome extension, “UberCheats,” built by Samii, Uber has allegedly been regularly shorting its delivery workers on 25-30% of trips, according to Salon.

Samii created this extension after an experience he had with Uber in which the food delivery company admitted to him that, because of a bug on Uber Eats’ end, he was not properly paid for his full delivery. Samii collected data from around 160 Uber Eats drivers through his extension. Through this, he estimates that Uber has underpaid workers on approximately 21% of trips, per Business Insider. To this end, Samii’s data shows that Uber Eats’ delivery drivers are being underpaid by an average of 1.3 miles on those approximately 21% of trips. This finding of routine underpayment by Uber, as well as Uber’s own admission that a bug does, in fact, exist within the delivery tracking method, is potentially disconcerting to Uber eats’ delivery drivers across the country.

What Changed?

Amid a global pandemic, the need for has become apparent to many. The potential that such automation is shorting employee wages on a regular basis is worrisome and harmful as our economy continues to grow and change. In recent months, more people have begun to rely on food delivery services to avoid  exposure to illness, increasing the demand for delivery drivers in the food service industry. Competition has increase as the food delivery industry has become more crowded and ever more necessary. No worker, including the gig workers we have become reliant on during the pandemic, should fear that their employer is intentionally paying them less than they are owed. The increased competition and demand for delivery service is an additional stressor, and improper payment for services is detrimental to the livelihood of this workforce.

-Jacob Mikalov for Barkan Meizlish DeRose Cox, LLP

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2020 FMLA Form Updates

The U.S. Department of Labor (“DOL”) recently issued several updated forms for implementing the Family and Medical Leave Act. These forms were issued with the stated purpose of assisting employees, employers and other stakeholders with completing implementation of the FMLA in the workplace. The FMLA entitles eligible employees up to twelve (12) weeks of unpaid leave for various specified health or care of family reasons. The ultimate goal of this update is to enhance user and employer ease, comprehension, and completion of the forms.

What Are The Forms?

The updated forms provide additional questions for the user to answer and provide additional information, while retaining the substance of the forms. An overview of the updates to the forms follows:

• Incorporation of the Notice of Eligibility and the Notice of Employees Rights and Responsibilities under the FMLA into one form, aiding employees’ knowledge of their eligibility status and privileges and duties during FMLA leave.
• The FMLA Designation Notice, an important form that allows employees to know whether their leave will fall under the reach of an FMLA designated leave.
• Changes to the Certification of Health Care Provider for Family Member’s Serious Health Condition form. This form now requires a more detailed description from the health care provider regarding the employee’s limits as a result of a sick family member, making it less likely employees will have to provide supplements to the information provided. Changes to the Certification of Health Care Provider for Employee’s Serious Health Condition form. This form requires a more detailed description from the health care provider regarding the employee’s work-limitations. This makes it easier for employers to understand the limitations of the employee where there are limitations, and less likely employees will have to provide supplemental information.

The Department of Labor has deemed these forms to be compliant with the FMLA. However, employees should be aware that the use of these model forms is optional, and employers are free to use their own forms, so long as they too are in compliance with the FMLA. These forms are located on Department of Labor’s website.

Have questions about whether your employer is properly implementing the FMLA? Give us a call for a free consultation.

– Jacob Mikalov

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The State of Stripping: Employee Misclassification at the Club

Employee misclassification is one of the most commonplace ways employers participate in wage theft. In many industries, this means classifying workers as independent contractors despite holding them to employee-specific standards. The strip club industry is rampant with this type of misclassification, with a recent statistic showing that at least one dancer files against their employer for misclassification every four days. Dancers have been fighting and organizing for better working conditions for decades. The COVID-19 pandemic has introduced another layer of hazard to the field. With the misclassification of many dancers as independent contractors came the inability to receive unemployment at the beginning of the pandemic. Many IC’s were left without income before the CARES Act. The Act gave each state the ability to expand benefits to independent contractors.  However, the Act does not undo the decades of work and struggle many in the industry have endured.

Return to Work, Risk, and Reward

When reopening began, strip clubs were on standby until they were able to introduce additional safety protocols for patrons and dancers. Clubs began to impose new rules regarding contact with customers, socially distanced dances, and masks. These rules, while intended to protect both customers and dancers, brought additional hardship into the workplace. Many dancers already struggle with mistreatment from management and patrons alike prior to the pandemic. Multiple lawsuits have been brought against clubs regarding treatment of African-American dancers and sexual abuse, while a plethora of stripper-run blogs report on individual dancer mistreatment. Many dancers have reported that clubs are reporting higher turnout rates than usual. This increase in contact (even with social-distancing measures) increases potential exposure to the virus, on top of other workplace risks dancers are already exposed to.

At the beginning of the pandemic, a video went viral of dancer Genea Sky falling from a pole while working at XTC Cabaret. Genea did not have any accident insurance provided to her as an independent contractor at the club. She did not have insurance or other legal protections. Crowd-sourcing her medical expenses helped Genea during crisis, as has been many American’s experiences during the COVID-19 pandemic. Her status as an independent contractor, rather than an employee, at the time of her fall prevented her from receiving benefits and protections from the club.

The additional risk of contracting COVID-19 into the club setting without a promise of medical care, FMLA, or other resources many employees have access to shows a dangerous bind that many dancers face. The historic lack of protections for gig workers and independent contractors have sparked unionization efforts for decades, and the strip club industry has remained at the forefront. The ongoing effort to unionize strip clubs throughout America has grown increasingly vital during the pandemic, and the forward momentum for the movement does not seem to be slowing down.

Dancer Unionization Efforts: Then and Now

In early August of 2020, a ruling from the National Labor Relations Board determined that a Columbus, Ohio dancer was, in fact, a statutory employee under Ohio  Law.  The dancer, Brandi Campbell, was involved in many lawful union organizing efforts at a variety of strip clubs throughout years. Her termination shortly after her hiring at Centerfold was for an apparent no-touching violation. This ruling came in a crucial moment in the strip club labor organizing movement. As previously mentioned, when states like Ohio began rolling out phase-based reopening plans, many dancers found themselves in an increasingly difficult position: return to work with few protections, or stay home and lose their Pandemic Unemployment Assistance (PUA) benefits? Along with many other service industry workers, many dancers made the difficult decision to put their well-being on the line and return to work. These factors, combined with the years of hard work and labor organizing done by strippers across the nation, have brought opportunity for change and protection in the industry.

The efforts put for to organize exotic dancers and adult entertainers are pivotal in combating employee misclassification. All workers deserve fair pay and protection, and dancers are no exception. In times like these, worker solidarity is crucial to protecting the American people across industries.

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House Bill 81 Changes Announced in Ohio

On June 16, 2020, Governor Mike DeWine signed into effect a new law. The ripple effects of the passage of this law will affect Ohioans seeking to claim Workers’ Compensation. The changes set out by House Bill 81 will go into effect on September 14, 2020.

The bills set out number of changes. Firstly, the bill codifies the voluntary abandonment doctrine. Under the voluntary abandonment doctrine, an employee who abandons employment for reasons unrelated to the work injury is not entitled to temporary total disability compensation or wage loss compensation. Additionally, House Bill 81 states that employers may no longer deny or withdraw consent to a workers’ compensation settlement application if the claim is outside of the period in which the employer’s Bureau of Worker’s Compensation rates are affected by the application, and if the employee is no longer employed by the employer.

Changes to the Standard

The standard for employees filing applications for additional awards due to a safety violation has changed as well. Applications for awards due to safety requirement violations must now be filed within one year after the date of the injury or disability. Previously, that standard was two years. Another specific section of the bill states that employees working in detention facilities, including corrections officers, are now covered by their employers for post-exposure medical diagnostic services. These are services that become necessary as a result of contact with blood or other bodily fluid, drugs or other chemical substance, and/or responding to an inherently dangerous situation while working. The bill also states that if an employee dies as a result of a workplace injury or occupational disease, the employee’s estate is entitled to $7,500.00 in funeral expenses. This is an increase from the previously allowed $5,000.00.

It’s noteworthy that these changes came on amidst the ongoing COVID-19 pandemic and likely are influenced by these events. The new coverage of employees working in detention facilities may be a response to the pandemic. Employers are now required to cover medical diagnostic services for illnesses that result for exposure to bodily fluid. COVID-19 is transmitted through bodily fluid- airborne droplet transmission- and the Ohio incarceration system has been surging with cases.

What Can I Do?

If you have questions, attorneys with Barkan Meizlish DeRose Cox, LLP, are available to help with Ohio workers’ compensation and personal injury cases in Columbus and across the state. You can schedule a free consultation online of speak with a lawyer directly by calling (614) 221-4221.

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Last night, associate attorney Sam Marcellino participated in WSYX ABC 6’s “Ask the Attorney.” Socially distant, safe, and ready to help Ohioans!

Ask the Attorney occurs on Wednesday evenings between 5:00 p.m. and 6:30 p.m. You can call in at 614-481-6848

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Severance Agreements Changes to Combat COVID-19 Related Economic Loss

In the era of COVID-19, many employers are attempting to lower their bottom line. Many employers turn to measures affecting workers, such as buying out employees close to retirement, mass lay-offs, and the issuance of severance agreements among all levels of companies.

What You Need To Know about Severance Agreement

Although workers often feel powerless during the discussions of a severance agreement with an employer, it is important to realize that often the employer is asking for something from the worker in return for the agreement. This makes it reasonable for the employee to attempt negotiation. Employers often want to ensure that they limit their future liability for lawsuits and other claims. This necessitates that most severance agreement to contain a waiver of such claims by the employee. While certainly the employer has the ultimate power- as a severance agreement is not legally required to terminate employment in an at-will employment setting- employees can also exert some power to negotiate based on their willingness to release potential current and future claims against the employer.

Another factor to consider is whether you will be subject to a Non-Compete Agreement upon the end of your employment. Non-Compete Agreements are typically upheld in Ohio and can be difficult to navigate when searching for your next position. This can often be a sticking point in negotiations of a severance package and can have broad implications for your future job search.

How We Can Help

The employers have attorneys on their side and you should too. Assistance in reviewing and negotiation your severance agreement can be incredibly helpful in protecting your future. Clarity on your responsibilities and on any potential non-compete issues is crucial. An attorney’s review can lead to additional items or an increase of the payment or other terms. Speaking with an attorney gives you the opportunity to discuss what is most important in the negotiation, and to make those goals a priority. Our office offers flat-fee severance review and advice to anyone facing a severance package. Contact us at 614-221-4221 for more information.

– Jessica Doogan

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 ADA Accommodations During COVID-19

For many Americans,returning to work amidst the COVID-19 crisis causes concern for the health and safety of themselves their families. Since the declaration of a global pandemic, America’s most vulnerable citizens have been at the forefront of conversation about preventing the spread. Many “healthy” citizens are not considered at-risk for COVID-19, while those with pre-existing conditions are especially susceptible. Nevertheless, America is re-opening its economy. This leaves individuals with disabilities and pre-existing health conditions in an unwinnable battle. Should they attempt to return to work despite their condition or continue to stay home and risk income? Will the Americans with Disabilities Act (ADA) help them?

Limitations of the ADA

We recommend that if you have health and safety concerns, you express those concerns in writing to your employer. If you have an underlying medical condition or care for someone who does,  contact your doctor to ask about accommodations under the ADA.

The ADA prevents employers from denying employment based on an individual’s status as disabled. The ADA also calls for employers to provide sufficient accommodations for those individuals. New difficulties will continue to rise for disabled individuals during the COVID-19 pandemic and foreseeable future. Employment laws in America are about to undergo an unprecedented wave of new applications, potential violations, and changes. How can employees trust their employer will respect and comply with laws, when the laws themselves are not necessarily equipped to protect them in these uncertain times?

What’s Next?

It is hard to give an affirming answer to employees during uncertain times. However, workers can contact the Occupational Safety and Health Administration to file a complaint if their employer is not adhering to safe practices and may explore the possibility of a workers’ compensation claim if the worker contracts the COVID-19 as a result of returning to work at the employer’s insistence.

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Updates for DACA Recipients in 2020

On June 18, 2020, another long-awaited Supreme Court ruling regarding the status of those participating in the Deferred Action for Childhood Arrivals (DACA) program was decided. The decision was made up of a variety of different elements including holding that the Trump administration did not properly terminate the existing DACA program, that DACA program as of the decision will be completely restored as it existed prior to the rescission in 2017, and, most importantly, that current DACA recipients will continue to be protected from deportation and have their employment authorized. Also, new DACA applicants will be able to apply for deportation protection and employment authorization as soon as the DHS implements the Supreme Court decision.

The much-deliberated DACA recipients are undocumented individuals that were brought into the United States as children under 16. Individuals that qualify for the program receive a renewable two-year period of deferred action from deportation and will become eligible for a work permit. To qualify for the program, recipients cannot have felonies or serious misdemeanors on their criminal records as well as must have completed certain educational requirements. It should be noted that individuals in the program don’t necessarily receive citizenship status through participation in DACA, just the deferral of deportation actions.

The program was started in 2012 under President Obama amidst an elevated amount of undocumented high school graduates in the US. Presently, approximately 700,000 people nationwide are participants in the DACA program and 3,880 of them live in Ohio alone. The Supreme Court decision regarding the program arose from President Trump attempting to completely rescind the program through an Executive Order in September of 2017.

The 5-4 decision comes as good news for some employers as they can continue to legally employ DACA recipients. However, DACA participants should note that they need to file timely applications to renew their protections.  The decision still raises some questions. The Supreme Court did not discuss or decide on the general legality of DACA.  Because of this, the decision essentially reads as saying that DACA participants are safe in the United States “for now” and leaves open the possibly for another decision to change the status of the DACA program and its participants in the future.

– Audrey Bidwell

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For Immediate Release:

COMPLAINT FILED AGAINST THE OHIO GOREMATORY, LLC

LORAIN COUNTY OHIO, May 18^th, 2020- Attorneys with Barkan Meizlish DeRose Wentz McInerney Peifer, LLP have filed a Collective Action lawsuit against the Ohio Gorematory, LLC in Loraine County Common Pleas court. The Ohio Gorematory, based in Lorain County, Ohio, is a seasonal haunted house. The complaint’s defined plaintiff class includes employees who worked for the Ohio Gorematory, LLC between May 12, 2017 until present, and names the company Ohio Gorematory, LLC and each of the owners as Defendants. An amended complaint was filed on May 22nd

The Complaint brings claims of wage theft and minor labor law violations against the owners, citing the Ohio Minimum Fair Wage Standards Act, O.R.C. 4111 et seq., (“the Ohio Wage Act”), the Ohio Prompt Pay Act (“OPPA”), O.R.C. § 4113.15 (referred to collectively as “the Ohio Acts”), Ohio minor labor laws, O.R.C §§ 4109 et seq. These violations include employees, called “scare actors,” not being paid for their work either entirely or in part, not paying the Ohio state minimum wage, and working long days with improper breaks for minors. Individuals who believe themselves affected by this action can contact Barkan Meizlish DeRose Wentz McInernery Peifer, LLP via email at consents@barkanmeizlish.com or at 800-274-5297.

Plaintiffs’ Attorney, Jessica Doogan, official statement: “Wage theft is a pervasive issue that should not, and cannot, be tolerated in any form. This case is especially egregious, as the employer here took advantage of high school age minors that were looking for a fun way to make extra money during the Halloween season. We intend to fight for our clients to receive the unpaid wages they are owed and will work with our clients and local authorities to pursue criminal prosecution of this employer for the child labor law violations it committed.”

You can read a copy of the complaint here.

For more information on the lawsuit and the opt-in process, you can refer to our Wage and Hour department website here.

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Recent Law Changes and LGBT Worker Protections

Using the Civil Rights Act of 1964, the Supreme Court ruled that it unlawful to discriminate against an employee on the basis of their sexuality and gender identity. Now LGBTQ+ workers have a legal recourse to pursue workplace discrimination claims, even in states that do not already have protections in place. The 6-3 decision was a consolidation of three cases: Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC. The majority ruled this way as they reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

To prove an employment discrimination claim, an employee must prove either disparate treatment or discriminatory harassment. Generally, this means an employee must prove they are a member of a protected class, that their employer or workplace harasser knew that they were a member of a protected class, that they were harmed by the actions of their employer or harasser, and finally, that others of that class were similarly treated or that the harassment was because of their status as a member of a protected class. The Supreme Court also held that although there can be multiple “but for” causes of employee discrimination, termination, or harassment, if any of them are because of a protected classification then there has been a violation of federal law.

This landmark case will be a drastic change for the 27 states that prior to this decision did not prohibit discrimination on the basis of sexual orientation or transgender status. These states include: Arizona, Michigan, Florida, Georgia, Ohio, Pennsylvania, and Texas. This may mean employers in these states will need to offer new anti-discrimination training and update their employee handbooks regarding gender and sexuality issues in the workplace.

However, this decision does not provide all the answers that employees will need regarding gender and sexuality-minorities in the workplace. The Supreme Court themselves noted there will likely be more cases in the future that further addressing the extent and influence of this opinion. For example, the disputes over restrooms and other gender-specific facilities being available for transgender employees may still be an issue as well as mandating certain healthcare benefits for transgender employees and potential religious liberty claims.

-Audrey Bidwell

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