Lyfting independent contractor status

If I asked you to identify Lyft's business, how would you answer? 

"They're a transportation company," you'd say. There's no other correct answer … unless you ask Lyft. 

Lyft will tell you that it's a tech company, not a provider of transportation.

The 10th nominee for the “Worst Employer of 2022” is … the sex offender supervisor

The most disturbing case I ever handled involved a company that hired a registered sex offender as a supervisor, who then raped a female subordinate.

Today’s “Worst Employer” nominee is very much in that tragic and devastating vein.

Vice provides the details, which it confirmed with Claire, he co-workers, court records, and even Starbucks itself.

Spotting the employment law issues in “She-Hulk"

Donny Blaze was a former student of Kamar-Taj, having dropped out after failing to adhere to their strict teachings. He left, however, with a souvenir, a sling ring, which sorcerers use to open mystic portals. Blaze then uses the sling ring, along with what he learned during his time at Kamar-Taj, to spice up his otherwise very pedestrian cabaret magic act.

Wong, the Sorcerer Supreme, seeks your legal counsel to file suit against Blaze to enjoin his use of Kamar-Taj's mystic arts. 

What are the potential claims? Let's explore.

WIRTW #641: the “slim shady” edition

Guess who's back, back again…

After a semi-intentional summer break, The Norah and Dad Show — the podcast I host and produce along with my 16-year-old daughter — is back for Season 2. You find us everywhere podcasts are available, including Apple, Spotify, Google, Overcast, Amazon, Stitcher, and via our website. If you're new to the show, please make sure you go back and check out all of Season 1.

While I'm talking about Norah, she has some gigs coming up over the next several weeks: this Sunday, Sept. 11, at the Berea Arts Festival (from 2–3p); Sept. 23 at Baxter's Speakeasy in Akron supporting Chanilla and Sad Harris (8p); and September 30 at The Olde Wine Cellar (starting at 6p). All shows are free, although Baxter's does have a one-drink minimum. Please stop and say hello. 

Here's what I read and listened to this past week that I think you should be reading and hearing, too.

How broad is potential liability for retaliation? THIS broad.

In 2016, Tom Pettay sued his former employer, DeVry University, for age discrimination. The trial court dismissed Pettay's lawsuit on summary judgment. Following that dismissal, the employer filed a motion asking the trial court to award them $4,004.39 for the cost of deposition transcripts used in support of the summary judgment motion. While Pettay's appeal of the court's award of costs was pending, the Ohio Supreme Court held that a prevailing party cannot recover the costs of deposition transcripts. 

As a result, Pettay again sued DeVry (or, more accurately, its successor in interest, Cogswell Education), claiming that it retaliated against him by pursuing a frivolous motion for the costs of the deposition transcripts. 

Like herpes, the NLRB’s efforts to liberalize its joint employer standard just won’t go away

Joint employment under the NLRA has a tortured history over the past seven years. 

Yesterday, the NLRB released a Notice of Proposed Rulemaking (NPRM) to rewrite the standard for determining joint-employer status under the National Labor Relations Act.

Under the current joint employer standard — to which the NLRB adhered until the Browning-Ferris decision in Aug. 2015, and to which it formally reverted in Apr. 2020 — one employer is only a joint employer with another employer if it possesses and exercises "substantial direct and immediate control" over the terms and conditions of employment of another employer's employees.

Joint employment matters … a lot … because if you're a joint employer over the employees of another employer you are jointly and severally liable for the legal wrongs committed by the primary employer. Under the NLRA you also would share collective bargaining responsibility.

WIRTW #640: the “Wickens Workshop” edition

When you take over a practice group and are tasked with building it, you naturally have to think of ways to market and grow it. Presenting semi-regular seminars for clients, prospective clients, and referral sources was low hanging fruit. I can talk about employment law all day long. Just give me a topic, a microphone, and an audience, wind me up, and let me go to work. Thankfully, my cohorts in our Employment & Labor Practice Group feel the same way. 

Thus, Wickens Workshops were born. (Full credit to Matt Danese for the alliterative branding.) Our next event, discussing employee leave of absence issues, will take place on Oct. 20 from 8–10 am.

While imitation is always the sincerest form of flattery, sharing this idea with my co-workers is hardly imitation. It's just smart business. Thus, the Wickens Workshops branding has expanded to include our Business Restructuring & Bankruptcy and Intellectual Property practice groups, which will hold events on the mornings of Nov. 15 and Jan. 18, 2023, respectively. We now have a full-blown series of panel discussions covering a variety of legal areas and topics. 

I hope you can join us. Stay tuned for registration information for each of these events.

Also, if you'd like to hear me speak before our Oct. 20th Workshop, tune in to Lunch Conversations with Randy & Teddy on Wednesday, Sept. 7, from noon to 1 pm, when I'll be discussing all things labor and employment law.

Here's what I read this past week that I think you should be reading, too.