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WB&S Files Sexual Assault and Harassment Lawsuit Against Berkeley Unified School District

WB&S Partner John Winer quoted in The Daily Californian:Our goal is to change policies so that complaints are taken more seriously,” Winer said.

Read the full article below

Former Berkeley High School teacher accused of sexual assault, harassment

by Gabe Classon

Berkeley High School alumna Rachel Phillips has filed a lawsuit against her former teacher and Berkeley Unified School District, or BUSD, alleging she was sexually assaulted and harassed two decades ago.

In a complaint filed in June, obtained by Berkeleyside, Phillips alleged former BUSD teacher Matthew Bissell inappropriately touched and sexualized her from 1999 to 2003. At the time, Phillips was a minor, the lawsuit notes.

According to Berkeleyside, Bissell resigned from his BUSD position earlier this year amid an investigation that substantiated the claims Phillips had made against him.

Bissell declined to comment on the specifics of the case through his attorney Alison Crane. Crane said in an email Bissell denies any allegations of inappropriate conduct and “looks forward” to addressing the allegations in court.

Phillips alleged that Bissell abused his authority to exploit her “physically and emotionally,” her attorney John Winer said in an email.

Winer further alleged BUSD either had poor record-keeping or had covered up allegations of Bissell’s sexual misconduct. The district, Winer alleged, had failed to fulfill its duty to protect Phillips.

“She complained to her coach, and she complained to a teacher, and she complained to the head of the athletic department,” Winer alleged. “Nothing was done to protect her.”

Winer also alleged Bissell’s inappropriate conduct went beyond any one student or time frame, saying he spoke to students and parents who repeatedly complained about Bissell’s “creepy” conduct. However, Winer said the district said it could only find records of two complaints.

Winer added approximately 30 people have contacted his firm about filing cases against Bissell and BUSD. In January, Winer expects to file another suit with seven plaintiffs who allege abuse from Bissell over an 18 year period. Most plaintiffs were 14 or 15 at the time of the alleged abuse, he noted.

Citing the privacy rights of students and employees, BUSD spokesperson Trish McDermott declined to comment on the lawsuit, although she emphasized generally the district investigates alleged wrongdoing and makes its decisions based on fact.

“The emotional and physical safety of every student is a top priority for the district,” McDermott added in an email.

Winer, however, alleged Bissell’s protection was prioritized above that of students and that Bissell has not been adequately punished. Bissell allegedly continued to earn a living by substitute teaching at other schools after he resigned from BUSD, while Phillips has suffered greatly from his alleged abuse, Winer added.

Damages to Phillips relating to future therapy costs, emotional distress, lost wages due to stunted career prospects and other claims could be worth over $1 million, Winer said. In addition to personal restitution, Winer said they are seeking changes to how BUSD handles sexual misconduct allegations.

“Our goal is to change policies so that complaints are taken more seriously,” Winer said.

Contact Gabe Classon at gclasson@dailycal.org, and follow him on Twitter at @GabeClasson.

 

 

 

 

 

 

 

 

Head of Alameda Fitness Center Surrenders Chiropractic License

John Winer Quoted in SF Chronical article:  “In over 42 years of handling a large number of psychological injury cases caused by chiropractors, doctors, psychotherapists abusing their influence, I’ve learned this kind of conduct by a chiropractor can create significant injuries,” said John Winer, Kohler’s attorney.

Read Full Article here:  https://www.sfchronicle.com/bayarea/article/Head-of-Alameda-fitness-center-surrenders-16603975.php

Or read below:

Head of Alameda Fitness Center Surrenders Chiropractic License

By Mattias Gafni

 

The head of a popular fitness and wellness center in Alameda surrendered his chiropractic license after state medical investigators said he had sex with three patients and one employee at his business and cited other purported violations.

John Beall, who has owned RISE Bodyworks in Alameda since 2010, turned in his license Oct. 9 after the California Board of Chiropractic Examiners alleged he had sex with patients during exams between 2016 and 2018, as well as an employee in his office.

 With another employee, he made inappropriate comments about her breasts and whether she’d been a prostitute or stripper, state officials said.

One former patient named in the state probe, Kerry Kohler, sued Beall, alleging he took advantage of her to have sex while she was vulnerable during two years of exams.

“I’ve had ongoing emotional trauma and anguish. I don’t wish this upon anyone,” Kohler told The Chronicle. “I’m grateful to have the strong support of a community that believes women who have been victimized.”

Beall, 51, acknowledged in an interview with The Chronicle that he made mistakes, but said he had “dating” relationships with the women and the sex was consensual.

“Since I did sleep with clients in the past, I stood up and took my (punishment) and voluntarily surrendered my license,” Beall said. “I have slept with co-workers and employees over the years.”

According to the American Chiropractic Association’s code of ethics, having sex with patients “exploits the trust and dependency of the patient.

“Sexual misconduct is a form of behavior that adversely affects the public welfare and harms patients individually and collectively,” the ethics guide states. “Sexual misconduct exploits the doctor-patient relationship and is a violation of the public trust.”

RISE employs about 40 people, offering chiropractic care, physical and group training, Pilates, acupuncture, massage and more. Beall said he still owns the business but no longer takes chiropractor appointments, although he works in the gym. The facility employs other licensed chiropractors.

In August, Robert Puleo, executive officer of the state chiropractic board, alleged 16 causes for discipline against Beall, including having sex with three patients and one employee, along with improper billing, failure to keep adequate records and unprofessional conduct. He asked the board to revoke or suspend Beall’s license.

Beall could have had a hearing before the board but decided to voluntarily surrender his license, which would enable him to reapply in two years. As part of the agreement, Beall agreed that the state board “could establish a factual basis for the charges in the Amended Accusation and that those charges constitute cause for discipline.”

Beall’s attorney, Michael Firestone, called it a “soft admission” in which he is not admitting to each and every allegation. He disputed “the majority of the allegations,” said Firestone, who said that challenging them with an administrative hearing would have been expensive.

“Dr. Beall … accepts responsibility for his unprofessionalism in blurring the lines when having romantic relationships with co-workers and patients,” Firestone said. “Dr. Beall has taken proactive rehabilitative efforts to educate himself better regarding the necessary boundaries in a patient-provider relationship and is confident he will not cross those boundaries again.”

He said Beall completed courses in boundaries and ethics. Beall has not been arrested or charged with any crimes.

In 2019, Kohler sued Beall alleging he took advantage of her as his patient and that the pair had sex over a two-year period. She alleged her marriage was crumbling, and that her father and father-in-law died in close succession, making her particularly vulnerable. She started seeing Beall after developing severe back pain in 2017.

“There is an inherent level of trust between doctor and patient,” Kohler said.

She alleged in the lawsuit that he texted inappropriate photos of himself and that the pair had sex in the massage room and his office dozens of times. They reached a settlement in May 2021.

“In over 42 years of handling a large number of psychological injury cases caused by chiropractors, doctors, psychotherapists abusing their influence, I’ve learned this kind of conduct by a chiropractor can create significant injuries,” said John Winer, Kohler’s attorney.

Beall said he learned a lesson and realizes he violated the ethics of his role as a chiropractor. “I totally get it now that that’s not cool,” he told The Chronicle.

WB&S Files Two Lawsuits Against Apple for Age Discrimination and Gender Discrimination

Apple ex-employees file ageism, gender discrimination lawsuit: report

Article by Yahoo News
by Peter Aitken
October 23, 2021

Two former Apple employees have lodged lawsuits against the tech giant, alleging ageism, sexism and other discriminatory practices in the company.

Employees last month launched #AppleToo, a campaign to gather and share current and past employees’ experiences of inequity, intimidation and abuse in the company. The two ex-employees have gone a step further by taking legal action.

Former high-level engineer Catherine Vartuli alleges that Apple discriminated and retaliated against her after she discovered and informed her manager that she was being paid less than half what her male peers earned, Business Insider reported.

Vartuli filed her lawsuit in late June in Santa Clara County, but it went unreported until #AppleToo started to gain attention.

Finance director Bernadette Alexander in February sued Apple, alleging ageism and retaliation. Alexander claimed a number of incidents over the past few years, such as instructions in 2017 from a new manager who told her, “I hire nothing but young people. They are hungry and fast and cheaper.”

Then, in 2019, she said her manager told her that her 10-year work anniversary meant it was time for her to be moved out of her position, with three candidates already under consideration and all at least 10 years younger than she was.

Vartuli, meanwhile, alleged that she was in a severe minority of women in her department: At meetings, there would be “2 to 5 women out of 30 to 40 people.”

John Winer, a lawyer for both women, said he feels “strongly” that both cases will succeed due to the “blatant” discrimination against his clients.

Apple did not respond to a FOX Business request for comment regarding the lawsuits, nor has it formally responded to either lawsuit, but the rise of the #AppleToo may force the company to take action.

“For too long, Apple has evaded public scrutiny,” the workers who launched #AppleToo said in a statement. “When we press for accountability and redress to the persistent injustices we witness or experience in our workplace, we are faced with a pattern of isolation, degradation, and gaslighting.”

A national labor agency in September opened investigations into two charges against Apple filed by employees, and Apple fired Cher Scarlett, one of the workers at the center of the #AppleToo movement.

 

More articles:

https://www.businessinsider.com/apple-lawsuits-gender-discrimination-ageism-pay-disparity-for-women-2021-10

https://www.yahoo.com/now/apple-ex-employees-file-ageism-125751894.html

https://www.foxbusiness.com/technology/apple-ageism-gender-discrimination-lawsuit

https://oltnews.com/apple-pursues-gender-discrimination-ageism-and-pay-disparity-for-womenbusiness-insider-2

Two former high-level employees sue Apple for age, gender discrimination

Ex-employees slam Apple with lawsuits claiming age and gender discrimination amid an unprecedented wave of worker activism within the company

 

WB&S Files Sex Abuse Lawsuit Against Berkeley Unified School – Read SF Chronicle Article

‘Worst moments of my life.’ Former Berkeley High student alleges repeated abuse by teacher

Soon after Rachel Phillips arrived at H Building for her senior yearbook photo shoot, she felt a hug from behind. She said she quickly realized it was her chemistry teacher, the one she alleges sexually assaulted and harassed her throughout her four years at Berkeley High School.

“He finds my ear and my neck and he starts making out with the side of my face,” Phillips recalled. “He grabs my crotch and lifts me into his arms like a baby.”

In the 2003 yearbook reviewed by The Chronicle, Matthew Bissell can be seen wrapping his arms around Phillips, his mouth aimed at her neck. The yearbook caption read: “Most Likely to date a teacher.”

“It was one of the worst moments of my life,” Phillips recalled in a Zoom interview with The Chronicle on Wednesday. “I went into a really deep depression. I was self-medicating with drugs and alcohol.”

The photo culminated four years of sexual abuse and harassment at the hands of Bissell, according to a lawsuit filed by Phillips last month. From ages 14 to 17, Phillips alleged that Bissell would slap or squeeze her butt in class or on the track “nearly every day,” touch her crotch, lick or suck on her neck, kiss her neck or ear, put his tongue in her ear, reach into her pants and pull her thong underwear up, and talk about her breasts, among other inappropriate behavior.

Attempts to contact Bissell, 47, who has not been charged with a crime, were not successful.

Phillips sued Bissell and the Berkeley Unified School District, alleging negligence, sexual assault, sexual harassment, battery and gender violence, among other causes of action. In April, the district mailed a letter to Phillips concluding that the complaint she levied to them last October of alleged sexual abuse and harassment had been substantiated. The report also concluded that Bissell had engaged in “inappropriate behavior” toward multiple students “over the years.”

Phillips’ attorney John Winer said he has seven other former students as clients who attended Berkeley High between 2014 and 2018 with allegations of sexually inappropriate behavior by Bissell. They all plan to join the lawsuit, he said.

Workplace Harassment and Its Portrayal on TV

Written by Kelli Burritt
May 28, 2021

The #MeToo movement that swept the country in 2017 brought a fresh focus on sexual harassment and misconduct that occurs in the workplace. According to the American Bar Association, in response to the movement, fifteen states passed new laws protecting against sexual harassment in the workplace, including California, which is listed as one of the states that led the way with new laws that focused on making sexual harassment training mandatory, softened the federal “severe or pervasive” standard to make it easier to sue in state courts, and banned the nondisclosure agreements that predators use to silence their victims. According to a Times article, audiences only recently began to see the movement portrayed in the media a couple of years later, with movies such as Bombshell and TV shows like Apple + series The Morning Show, which showcased the workplace sexual harassment and misconduct issues people face in the workplace.

The 2019 film Bombshell, which stars Charlize Theron as former Fox News anchor Megyn Kelly, Margot Robbie, and Nicole Kidman as Gretchen Carlson, co-host of Fox News “Fox and Friends”, follows Carlson’s lawsuit against CEO Roger Ailes for sexual harassment. According to reports, in July 2016, Carlson filed a sexual harassment lawsuit against Ailes, accusing him of ruining her career and firing her for rejecting his sexual advances. The suit alleged that in response to her complaints, Ailes cut her pay, gave her less favorable time slots, and denied her critical interviews. Both Ailes and Fox News denied the allegations, but not long after it had inspired Megyn Kelly and other women to come forward with their allegations. In an interview with Reuters, actor Charlize Theron described how the movie represented such a difficult issue. “This story lends itself really nicely to the complexities of what sexual harassment really looks like, and how it lives and breathes in very different gray spaces that we might not necessarily have wanted to acknowledge.”

The Apple+ TV series The Morning Show starring Jennifer Aniston, Reese Witherspoon, and Steve Carell, portrays the issue of a male TV anchor who was fired for reports of sexual misconduct. Although the show’s executive producer denies that the show was based on real-life events, it closely mirrors the allegations made against former host Matt Lauer, who was fired from The Today Show after undisclosed reports of sexual misconduct came to light. According to an article by The Conversation, unlike Bombshell, which focused on the victims of sexual transgressions experienced at Fox News, The Morning Show considered the pervasive effects of sexual misbehavior and power abuses that occur in the workplace and examined the impact it has on the victim’s relationships.

Last month, I was invited to join a Zoom panel for a communication class at Chapman University, where we discussed the legal aspects of sexual harassment and misconduct in the workplace. The panel also included Kerry Ehrin, who is the showrunner/executive producer of the series The Morning Show, actress/on-air personality Amy Paffrath, head of human resources for entertainment union SAG-AFTRA Tashia Mallette, and Chapman campus crisis counselor Dr. Danielle Smith.

The panelists discussed how The Morning Show portrayed issues of sexual misconduct, how the fictional scenarios in the show compare to real-world situations, and how the series can have a positive impact on societal change. “Having these panelists each bring their unique professional perspectives to the discussion had a dramatic effect on my students, allowing them to explore the many facets of the issues themselves, as well as how the media – particularly entertainment media – can be brought to bear on the way audiences see and act upon what they are exposed to via the media,” said Professor Larry Deutchman. “They recognized that viewing is not intended to be a passive experience and they can change people’s lives by applying entertainment-education practices and communication theory to works intended to entertain.”

Although it is a difficult and sensitive topic to touch on, audiences need to learn about the issues that unfortunately continue to be rampant in the workplace. If the exposure of the widespread sexual abuse allegations continues to populate mainstream media, it may help educate others of the issues that occur, and employers can help their workers feel safe in their workspace.

If you are an employee and have been the victim of any form of sexual harassment or misconduct, you should speak to an attorney. Every case is different and requires the care of an attentive lawyer. At Winer, Burritt & Scott, LLP, we empower our clients, providing them with one-on-one service and a list of potential legal actions against the perpetrator(s) of the harassment. We can investigate, finance, develop, and prepare your case for the best possible outcome. With lawyers recognized throughout California as top performers, choosing our firm for litigation offers many benefits.

How to Fight Age Discrimination in the Workplace

Written by John Winer

May 03, 2021

While ageism is nothing new, the widening wealth gap and current economic frustrations have put a spotlight on age discrimination in the workplace. According to the Bureau of Labor Statistics, the employment of workers aged 65 or older has grown by 117% in a span of 20 years, while employment of individuals 75 years or older has also increased by the same percentage. With the increase of older employees in the workforce, age discrimination in the workplace will become a greater issue, and strategic planning will be necessary in order to avoid age-related issues. Last month, a bipartisan group of senators reintroduced a measure aimed at making it easier for older Americans to bring work-related age discrimination cases against their employers.

The Protecting Older Workers Against Discrimination Act, sponsored by a group of senators, would amend the Age Discrimination in Employment Act (ADEA) to restore plaintiffs’ burden of proof to where it had been before a 2009 Supreme Court case ruling in Gross v. FBL Financial Services, which weakened the ADEA by imposing a significantly higher burden of proof on workers alleging age discrimination than is required of workers alleging other forms of workplace discrimination. As a result, workers that allege age discrimination must meet an undue legal burden not faced by workers alleging discrimination based on race, sex, national origin, or religion. Sen. Bob Casey (D-PA), one of the act’s sponsors claimed, “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen anti-discrimination protections that are being eroded.”

The Age Discrimination in Employment Act offers protection for certain employees and applicants aged over 40 from all forms of discrimination in the hiring, promotion, discharge, and workers’ compensation. The act also prohibits the use of age preference in the hiring process. It prohibits denying benefits to older employees. According to the act, it’s illegal for an employer to decide to hire or fire an employee based on age. They also can’t base pay on their age and have a policy that negatively affects employees because of their age.

Employees in all industries can experience age discrimination, however, AARP has highlighted the ones where it is the most rampant:

● Business and finance

● Technology

● Marketing and advertising

● Hospitality

● Retail

● Healthcare

● Energy

Some steps the AARP recommends taking to fight age discrimination in the workplace include:

Talk with a supervisor: sometimes the issues can be addressed in an informal conversation.

Keep a log: document comments and actions that you believe were driven by discrimination and keep any records, such as emails.

Lodge a complaint with the company: if conversations with managers don’t achieve anything, go through the organization’s formal complaint process. Make sure to write down your concerns and observations.

Submit an inquiry to the EEOC: formal complaints are investigated either by the EEOC or by state and local fair employment practice agencies. States that have their own investigators and work-sharing agreements will share the information with the EEOC.

Contact an attorney: if you believe you are a victim of any form of age discrimination, contacting an experienced employment law attorney is important to help protect your employee rights.

All workers of employers who employ five or more people are entitled to protection under California employment discrimination law. Because age discrimination cases are tough cases, having the right legal counsel and representation of an experienced employment discrimination lawyer is key to pursuing justice. Since the onset of the Great Recession, age discrimination cases filed at the Equal Employment Opportunity Commission have held steady at a level that is 50% higher than historic levels.

Employers take significant legal precautions to avoid potential discrimination claims during promotion considerations, annual reviews, layoff periods, and firings to ensure that age is not the obvious motivating factor in the case. That is why we represent clients in any industry in the state, and we work tirelessly to develop a case capable of victory. We also represent contractors, union members, and employees of nonprofit organizations under any circumstances. Our attorneys will be prepared to help you recover damages and guide you in the repair of your career.

Gender discrimination and harassment plagues U.S. temporary work programs

Written by John Winer

April 26, 2021

Each year, thousands of women are recruited to work in the United States on temporary work visas. The Department of Labor explains that foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. Although it allows them to work towards pursuing a better life, it comes at a cost. Women’s stories describe how gender bias and discrimination deeply plague the temporary labor migration programs, which facilitate women’s exclusion from equal employment opportunities and foster gender-based discrimination in the workplace. A recently filed lawsuit by a group of migrant workers is highlighting the issues they are encountering in the temporary work programs.

Reuters reported that a group of Mexican women migrants filed a complaint, accusing the U.S. government of violating a trade agreement by failing to enforce gender discrimination laws in temporary labor programs. The complaint accuses the U.S. of violating the United States–Mexico–Canada Agreement (USMCA) by failing to enforce sex-based discrimination laws in its H-2 visa programs for temporary seasonal workers. In the lawsuit, the women said they were denied access to visas that would give them better-paying jobs and that they were exposed to gender-based violence. The executive director of the Center for Migrant Rights claimed this was the first such complaint filed under the USMCA, which went into effect in July 2020. The USMCA included a new article in its new version that forces officials to act against discrimination and supports the objective of promoting equality for women in the workplace, among other points against labor inequality. It will now be up to Mexico’s Labor Ministry to consider whether to investigate the women’s complaint and take it to the U.S. government.

The Global Alliance Against Traffic in Women reports that women migrant workers experience a continuum of gender-based violence and harassment, ranging from insults to severe physical abuse, sexual assault, psychological abuse, bullying, and intimidation. And those who choose to stand up to their abusers often face retaliation and harassment. Women have described how employers and their recruiter agents frequently shut women out of equal employment opportunities or track them into jobs with less pay and fewer rights and benefits. In their worksites, they recount exploitation and abuse, ranging from wage theft to sexual harassment to human trafficking.

The Center for Migrant Rights has provided legal representation to workers from Mexico recruited for jobs in the U.S. through diverse visa programs for more than a decade and have worked with those that have been discriminated against and harassed. In 2014, the organization launched a platform for migrant workers to safely share their experiences with specific employers and recruiters and access know-your-rights information for the most common temporary labor programs. Many women have reached out about the discrimination they have encountered at all stages of the temporary labor migration programs, vocalizing the unique needs and challenges women face when seeking access to the programs.

Persistent gender bias, lack of government oversight over recruitment, and the failure of the United States to enforce anti-discrimination, harassment, and other labor and employment laws have all contributed to the gender discrimination and sexual harassment women in temporary work programs endure. Ending the abuse of women migrant workers will require consistent monitoring and meaningful enforcement.

One way the Center for Migrant Rights recommends addressing the issue is by having Congress mandate that the Department of State, Department of Labor, Department of Homeland Security, and the Equal Employment Opportunity Commission create an integrated response to the issue of migrant worker abuse. They should monitor the practices of employers and recruiters to guard against discrimination, sexual harassment, and sexual assault in the workplace, as well as ensure that women are provided adequate protection and are granted access to social and other support services to facilitate reporting gender-based violence and other trauma.

Can Employers Require Employees to Get Vaccinated Before Returning to the Workplace?

By John Winer

“Have you been vaccinated for Covid-19?” It’s a question employer may be tempted to ask as employees begin to return to the workplace.  But is it necessary for a safe work environment or a violation of workers’ medical privacy?

It’s an issue that raises legal and ethical questions as business owners and employers prepare safe “return to work” plans.  So, can an employer require an employee to get a vaccine before they’re allowed to return to the workplace?

The Equal Employment Opportunity Commission (EEOC) is offering guidance.  It says employers can legally require employees to be vaccinated with two primary areas of exception.

The first exception involves disability considerations.  Perhaps an employee has allergies involving the vaccine ingredients.   Maybe an employee is pregnant or nursing and their doctor has discouraged them from being vaccinated.  The EEOC guidance points to the ADA qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  This means the employer “must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).

In other words, an employer can determine that an unvaccinated employee can expose others to the virus at the worksite.  Employers are obligated to try to accommodate the employee, but if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace.

The next exemption is for religious considerations.  Once again, the EEOC reminds employers of their obligation for reasonable accommodations.   If no accommodation that reduces the risk of harm to others is possible, the employer is legally allowed to exclude the unvaccinated worker from the workplace.

But, even with this guidance, the EEOC points out that excluding a worker from the workplace doesn’t trigger automatic termination of that employee.   Those cases need to be evaluated to see if other rights apply under the EEO laws or other federal, state, and local laws.

As for asking the question, “Have you been vaccinated?”:  Does that question violate the medical privacy rights of an employee?  The answer, according to the EEOC, is no.   The agency says not only can employers ask, but they can also require proof of vaccination.   What the guidance warns against, however, is that employers must be careful with their questions in situations where vaccines are voluntary and not required for the job.   Questioning an employee about why they opted not to be vaccinated could venture into medical information that is protected by the ADA.

Communication with workers is key.  Let them know the strategy and expectations for keeping the workplace safe.  And remember that vaccination policies can change in the future.  As everything that has evolved in the past thirteen months of this pandemic—non-mandatory vaccination policies can become mandatory if warranted and the reverse may become a possibility sometimes too.

There’s a balance between protecting workplace safety and workers’ medical privacy.  Careful policies and communication along with safety protocols will help bring an end to the pandemic.  With the noted exceptions and restrictions, employers can ask about vaccination status and require vaccines as a condition of employment.

 

 

How the Aftermath of Proposition 22 Impacts Consumers

Written by John Winer

For many years, companies and legislators have debated whether gig economy workers like those who work for Uber, Lyft, Instacart, Postmates, and DoorDash should be entitled to benefits such as minimum wage and unemployment insurance. In November 2020, gig economy companies celebrated a major victory after California voted to pass a controversial ballot measure to exempt them from having to classify their gig workers as employees rather than as independent contractors. According to a CNN report, Proposition 22 was the most expensive ballot measure in California’s history, with Uber and Lyft along with a few other gig economy companies spending more than $205 million to pass the measure on the ballot, but the newly passed proposition has been met with some challenges since its enactment.

Ballotpedia reported that Prop. 22 passed with around 58% of the vote with the help of the Protect App-Based Drivers and Services coalition, known as the Yes on 22 campaign, which worked to support its passage and raise over $200 million for the campaign. According to a Sacramento Bee report, under Prop. 22, drivers for gig economy companies only qualify for 120% of the minimum wage during the time they are picking up and driving a passenger in their car, plus 30 cents a mile. The companies are not required to contribute to Social Security, Medicare, or unemployment insurance, and few drivers qualify for other healthcare options. Contractors are typically ineligible for state unemployment insurance because they are self-employed, and they are the sole contributors to their retirement accounts. Independent contractors will find that liability insurance premiums are generally higher than the collective rates that employers will secure for their workers and it may be required by certain employers.

Earlier this year, Prop. 22 was met with its first legal challenge after a small group of app-based drivers and two major labor unions, The Service Employees International Union (SEIU) and the California Labor Federation, filed a lawsuit in the Supreme Court to overturn the ballot measure. According to a report by the Los Angeles Times, the suit claimed the measure was unconstitutional because it limited the power of the state’s legislature from creating and enforcing a workers’ compensation system for gig workers. One of the plaintiffs in the lawsuit claimed that the independent contractor status left drivers like him with “no savings, sick days, health insurance or unemployment during a pandemic.” After a brief review, the California Supreme Court declined to hear the case brought on by the drivers and unions, claiming the case could be filed in a lower court. Following the rejection, the plaintiffs alleged that they were still planning to continue pushing forward with their legal challenge against Prop. 22.

Not only did gig economy workers feel the negative effect of Prop. 22, but customers did as well. According to MarketWatch, soon after the measure was passed, some gig economy companies claimed they were planning to raise rates for customers. Uber called on increases on every ride and delivery a “California Driver Benefits Fee,” which the ride-sharing company said would vary depending on the costs of operating in different markets. DoorDash also said it was exploring slight increases in service fees. Gig Workers Rising, a worker’s rights group called the increase “a corporate bait and switch,” saying in a statement, “Uber and other app corporations said time and again during their Prop. 22 campaign that if the measure failed to go through, riders could expect higher rates. Now that Prop. 22 has passed, Uber is announcing that riders will have to shoulder increased costs after all.”

While Uber may have won their legal battle in the United States, it did not face the same outcome overseas. In February, a court in the United Kingdom ruled that gig companies must treat their workers as employees, forcing Uber to classify around 70,000 drivers as workers and give them some benefits, per a report by The Verge. Although drivers will still not be considered full-time employees, they would be able to accrue vacation time and receive a minimum wage while driving fares, as well as have the option of enrolling in a pension plan. It’s only been four months since the measure was passed and it has already been met with some challenges. It’s clear that gig economy workers need the same benefits that are provided to traditional workers, such as minimum wage, overtime pay, workers’ compensation, unemployment, and state disability insurance. As the pandemic forced many to seek jobs in the gig economy, it also exposed just how vital basic protections are for gig economy workers.

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