September | 2019 | The Nomberg Law Firm

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

illustration showing uber and lyft cars in head-on collision For many of us we hear “gig economy” and think it’s another millennial hashtag with absolutely zero meaning in our everyday life. But really, the emergence of the gig economy has a direct impact on us all. Put simply, the “gig economy” is a new way of saying independent contract or part-time work, and over 55 million people are working this way now.[1] That number is only expected to grow as technology and time progresses. So this raises a new question: if corporations are switching to contract labor as opposed to employed workers, what happens to benefits like Social Security, workers’ compensation, and other benefits that come with being an employee?[2]

Companies like Lyft and Uber use the “gig” business model to contract out its work, and thereby avoid paying claims like expense reimbursement to drivers, minimum wage standards and overtime pay, and taxes to the IRS. This triggered a slew of lawsuits by drivers who want to be classified as employees. Lyft has already settled some of these suits to the tune of nearly $29 million.[3] Meanwhile Uber has suggested it is willing to pay up to $170 million to quiet the riot of lawsuits barraging it.[4]

The central idea to these lawsuits is that the companies want to find a new way to classify employees in an already heavily regulated area and the drivers believe their rightful classification is as an employee.[5] So far, the app-based companies are in the lead at the federal scale. Peter Robb, in his office as general counsel for the National Labor Relations Board, declared in a memo in May that Uber drivers are independent contractors and not employees because they “set their hours, own their cars and are free to work for the companies’ competitors.”[6] This means drivers are unable to unionize and obtain the legal protection unions provide for workers complaining about working conditions.[7]

California’s response to the upheaval has been what is known as Assembly Bill 5. This bill adds a new element in California to the federal test to determine employment status. The new element being that the company wanting to classify the workers as independent contractors has to show the work performed is outside the usual course of business for the entity.[8] While Uber has responded with confidence that it will still be able to pass the test at the state level, those outside the corporation are not so sure. This confidence will be tested on January 1, 2020 because Governor Newsom of California signed the bill and it is set to take effect on that day.[9] The significance of California making this law and not the federal government is that the corporations are based within the state; so the state law controls what the companies can and can’t do. However, it will still take time and litigation to prove the effects this new law will have on the gig companies, whether the companies will move to avoid an unfavorable outcome or continue to gain clearance to operate as usual. Only time, and more lawyers, will tell.

If you have questions about the gig economy, your classification as a driver or if you are injured driving/riding in an Uber/Lyft, please call The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900. For further information, please visit our website: Nomberglaw.com.

Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2018, Bernard was named a Super Lawyer for the 6th year in a row and he was recognized as one of the Top 50 Lawyers in Alabama.

[1] https://www.forbes.com/sites/quora/2019/01/08/what-are-the-pros-and-cons-of-the-gig-economy/#7bf8ede71388

[2] https://www.whateverison.com/here-are-answers-to-every-uber-lyft-customers-questions/

[3] https://techcrunch.com/2019/03/01/lyft-lays-out-financial-risks-associated-with-reclassifying-drivers/

[4] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[5] https://www.inc.com/minda-zetlin/uber-california-ab5-tony-west-employees-independent-contractors-lawsuits.html

[6] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[7] https://www.reuters.com/article/us-uber-contractors/uber-drivers-are-contractors-not-employees-us-labor-agency-says-idUSKCN1SK2FY

[8] https://www.inc.com/minda-zetlin/uber-california-ab5-tony-west-employees-independent-contractors-lawsuits.html

[9] https://www.latimes.com/california/story/2019-09-18/gavin-newsom-signs-ab5-employees0independent-contractors-california

from The Nomberg Law Firm – Birmingham Workers’ Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/employees-and-the-gig-economy/

by Bernard D. Nomberg, Partner, The Nomberg Law Firm

photo of a surveillance camera and someone walking by it

[1]

If you have been injured on the job and filed a workers’ compensation claim, it is natural to feel as though a target has been placed on your back. The constant barrage of forms to be completed and medical examinations to be attended can only increase the feeling of living under a microscope. But there might just be another eye on you that you did not expect – your employer and the insurance company.

Employers more and more are utilizing every technique possible to avoid paying workers’ compensation claims. It is common to hear stories of employees claiming workers’ compensation benefits being approached by strangers for the sole purpose of uncovering any detail that can destroy the employee’s claim for work comp benefits. These strangers are hired to unearth any point of inconsistency in your story that will lead to your employer weaseling its way out of paying you the benefits you need.

Alabama courts have made plain their stance on employers and their insurance carriers conducting surveillance. Put bluntly, the law is not on your side. Your employer can watch you in public and from public areas so long as they do not trespass. (We have previously discussed this: http://bit.ly/2k3RAf0). Courts also allow into evidence surveillance tapes against you to refute the claim you try to bring. In one case, video evidence was provided at trial showing the worker walking around without his leg brace or any visible limp – this crushed his credibility in front of the judge when he later argued at trial he had a serious, debilitating leg injury.[2]

The best way to tackle the surveillance that can seem like a giant obstacle is to be aware of the game. Just as the saying goes, knowledge is power. Once you know that your employer is out to undermine your case, you can switch to an offensive position and head them off at the pass. Here are some practical ways to shore up your case and end the dispute with the benefits you deserve:

Video surveillance can be used to show you are not disabled. If you claim an injury in your arm, for example, do not tough out a difficult situation in public by using that arm. Maintain the level of activity your injury has limited you to and ask for help instead.
Surveillance can also be a way to show you are not as injured as you claim and your injury is exaggerated. The only way to avoid this is to be honest about the state of your injury when making the claim. Do not “sweeten the deal” by adding unnecessary details that aren’t completely truthful.
Another tactic is to show video of you doing more than the doctor’s restrictions to prove your injury is false. Listen to your doctor and stay well within the limits imposed based on your injury and the doctor’s consultation.
The last method used against you is to attack your credibility. Honesty is the best way to avoid losing money because you did not want that stranger that asked how you broke your arm in the grocery store to know your private business. Approach every situation with caution, and, as always, consult with legal counsel before making any statements about your health to employers and insurance providers.[3]

Basically, use common sense! Remember your treating physician’s restrictions and limitations. Do not do something you should not be doing!

If you or a family member have a workplace accident and need legal representation, please consider contacting The Nomberg Law Firm. We are located in Birmingham, Alabama. Office number is 205-930-6900. For further information, please visit our website: Nomberglaw.com.

[1] https://finance.yahoo.com/news/tech-companies-scope-africa-surveillance-sector-145132198.html?utm=newsbreak.

[2] Dills v. Wal-Mart Stores, Inc., 777 So. 2d 160 (Ala. Civ. App. 2000).

[3] https://www.alabamalitigationreview.com/2015/07/articles/workers-compensation/surveillance/.

from The Nomberg Law Firm – Birmingham Workers’ Compensation & Personal Injury Lawyers https://www.nomberglaw.com/blog/hurt-and-hunted/