Yelp’s recent advertising campaign tells would-be users in search of businesses and services, “We know just the place.” Yelp provides an online forum where users can utilize star-ratings and comments to share their experiences with fellow consumers. Recently, the site has evolved into a venue for consumers to mercilessly complain about their subjectively mediocre experiences. The complaints can sometimes escalate to the point where fellow consumers won’t darken a business’s doorstep based upon its Yelp reviews.
As employment attorneys, we are often asked by employers, “How can I protect my company from employees leaving with critical information or being poached by a competitor?” One way that employers can protect themselves is to prepare reasonable non-compete agreements that have the effect of deterring competitors and, likewise, encouraging retention amongst the workforce. There are, however, pitfalls which must be considered by employers before the execution of these non-compete agreements. Generally speaking, West Virginia courts will accept and enforce non-compete agreements that (1) are no more restrictive than required for the protection of the employer; (2) do not impose an undue hardship on the employee; and, (3) are not injurious to the public.
It wasn’t that long ago when it was fairly clear that sexual orientation was not considered a protected class under Title VII. However, as we first wrote about on this blog last year, sexual orientation discrimination is an expanding legal basis of protection for all employers to be concerned about. This includes educational institutions.
The use of independent contractors is a growing trend in the American economy, and many believe the trend is here to stay. Independent contractors come in a variety of shapes and sizes. Companies like Uber rely almost exclusively on independent contractors, and there has been significant increase in the use of independent contractors for a variety of duties (in nearly all industries).
On May 17, 2016, the U.S. Equal Opportunity Commission (EEOC) issued an ADA Final Rule amending applicable regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA), and a GINA Final Rule, under Title II of the Genetic Information Nondiscrimination Act (GINA), clarifying how the ADA and GINA Rules apply to employer wellness programs. In addition, the EEOC issued a Q & A document for each new rule, ADA Rule Q & A and GINA Rule Q & A, addressing key questions about each rule’s applicability and implementation.
On May 13, 2016, the Department of Labor (“DOL”) and the Department of Education (“DOE”) issued a joint directive to school districts nationwide titled the “Dear Colleague Letter on Transgender Students.” The correspondence “summarizes a school’s Title IX obligations regarding transgender students and explains how the [DOE] and the [DOL] evaluate a school’s compliance with these obligations.” The letter makes clear that “[a]s a condition of receiving Federal funds, a school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities.” (Emphasis added). While the information applies directly, through Title IX, to school districts, private employers on a much broader scale must also be cognizant of the new interpretation of “sex” discrimination.
If you’ve been following my series on the “uberization” of the workplace, you’ve probably cued in to the fact that I’m a huge fan of the services Uber provides. I love the on-demand economy. I used VRBO for my honeymoon. I ubered around beautiful Asheville, North Carolina for my birthday (a 15-minute ride cost me $15 – seriously!). And, now the West Virginia Legislature has made my little heart go pitty-pat by passing a law that will let Uber help me travel some country roads.
Effective July 1, 2016, “transportation network companies” (feel free to think Uber – I know I do) may use technology to link drivers and riders in our great State. The transportation network company (or “TNC”) will have to get a permit from the Division of Motor Vehicles to operate in West Virginia. The TNC must provide proof that it has an agent for service of process in this State (which would enable it to be sued if appropriate). In addition to an annual $1,000.00 permit fee, the TNC will also have to provide: (1) proof of insurance, (2) a copy of its zero tolerance for drugs and alcohol policy, (3) a copy of its policy prohibiting solicitation or street hails for rides, and (4) a copy of its nondiscrimination policy with respect to riders.
The Legislation puts several safety measures into place. In addition to the zero tolerance policy and insurance coverage (by both the TNC and the driver), the TNC’s app must show the potential rider a picture of the driver and his or her license plate number. The TNC must conduct, and all drivers must pass, a background check that includes:
- A search of a multi-state, multi-jurisdictional criminal records locator or similar nationwide database with validation
- A National Sex Offender Registry search
- A driving history research report.
And, drum roll, the West Virginia Legislature has addressed the legal relationship between the TNC and the driver head on by setting forth five requirements that, when met, establish an independent contractor/employer relationship.
- The TNC does not prescribe the specific hours of work for the driver, i.e., when he or she must be logged in to its digital network.
- The TNC does not prohibit the driver from using other TNC networks, i.e., the driver can use other apps.
- The TNC does not assign the driver a particular territory.
- The TNC does not prohibit the driver from holding other employment or conducting another business.
- The TNC and the driver agree in writing that the driver is an independent contractor of the TNC.
In my view, this test reinforces the mainstay of the independent contractor analysis in West Virginia: CONTROL is the key factor. The Wage and Hour Division of the U.S. Department of Labor (“DOL”) announced its disagreement with the significance that should be accorded the control factor in an Administrator’s Interpretation issued last year (for more information see the fourth installment of my uberization series – link here). If our new law is any indication, the DOL is going to be receiving a lot of push back from the states where “control” reigns supreme. In the meantime, I hope that Uber accepts our invitation to do business and take me home country roads.