Labor Issues in the Gig Economy: Federal Court Concludes That GrubHub Delivery Drivers are Independent Contractors under California Law

Forman_A_Main-large-headshot-photo-15242Sullivan_K_Main-large-headshot-photo-12239Guest Commentary

By Adam S. Forman, a Member in the Detroit, MI and Chicago, IL offices of Epstein Becker & Green, P.C., and Kevin D. Sullivan, an Associate in the firm’s Los Angeles, CA office.

Ed. Note: Cross-posted with permission from the Wage and Hour Defense Blog. Epstein Becker Members Nathaniel Glasser and Stuart Gerson authored a Washington Legal Foundation Legal Backgrounder in 2017 on this topic, ISO: Uniform, Transparent Regulatory Standard to Distinguish Independent Contractors from “Employees.”

Recently, a number of proposed class and collective action lawsuits have been filed on behalf of so-called “gig economy” workers, alleging that such workers have been misclassified as independent contractors. How these workers are classified is critical not only for workers seeking wage, injury and discrimination protections only available to employees, but also to employers desiring to avoid legal risks and costs conferred by employee status.  While a number of cases have been tried regarding other types of independent contractor arrangements (e.g., taxi drivers, insurance agents, etc.), few, if any, of these types of cases have made it through a trial on the merits—until now. Continue reading “Labor Issues in the Gig Economy: Federal Court Concludes That GrubHub Delivery Drivers are Independent Contractors under California Law”

New Slate of Commissioners Should Elevate FTC’s Consideration of the First Amendment

FTC_Man_Controlling_TradeThe U.S. Senate Committee on Commerce, Science, and Transportation has scheduled a hearing for tomorrow, February 14, 2018, on the nominations of a new Chairman and three new Commissioners to the Federal Trade Commission (FTC). In recent years, FTC has become the primary national regulator of consumer data privacy and security, a responsibility that accords the Commission a staggering amount of influence over an American economy increasingly fueled by information.

When utilizing that authority over how businesses treat consumer data, the Commission has accorded little or no regard to the First Amendment. Data is speech, a reality that the incoming Chairman and Commissioners must incorporate into consumer-protection enforcement under § 5 of the Federal Trade Commission Act. Continue reading “New Slate of Commissioners Should Elevate FTC’s Consideration of the First Amendment”

When Assessing Burdens for Farmers, Other Landowners, White House Shouldn’t Duck Overhaul of Wetlands Regulatory Juggernaut

Lawrence KoganGuest Commentary

By Lawrence A. Kogan*

Last year, two WLF Legal Pulse posts (here and here) explored the federal government’s incremental expansion of control over privately owned agricultural property through the Clean Water Act (CWA) and the law’s hydra-like oversight of wetlands. Those commentaries presented one Erie, Pennsylvania farmer’s 30-year legal battle as a microcosm of how agenda-driven regulators can upset the balance between environmental protection and individual rights. Ironically, that balance empowers small and family-farmers’ contribution to another goal of green activists: sustainable local food production.

New information discovered from the legal battle against farmer Robert Brace reveals that his plight has been part of a broader, decades-long crusade led by a select group of environmental officials, with the active support of special-interest activists, to expand wetlands and challenge decisions by agriculture regulators. That campaign, and its success over the course of numerous presidential administrations, should not go unnoticed as the current regulatory reform effort, especially as it relates to “waters of the U.S.” (WOTUS), moves forward. Continue reading “When Assessing Burdens for Farmers, Other Landowners, White House Shouldn’t Duck Overhaul of Wetlands Regulatory Juggernaut”

DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits

11th CircuitBusinesses that routinely contract with the government know that while the relationship comes with high financial rewards, it also can expose those companies to massive civil liability.  Under the False Claims Act (FCA), government contractors can find themselves sued for hundreds of millions of dollars based on mere technical violations of complex regulatory schemes.

Luckily, as highlighted in several of our previous posts, the U.S. Supreme Court has recently reinforced the high evidentiary threshold FCA plaintiffs need to meet to bring a successful claim under the most common theory of FCA liability.  A recently disclosed U.S. Department of Justice (DOJ) memo and a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit might similarly lead to fewer baseless claims against government contractors. Continue reading “DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits”

WLF Briefing Delves into 2018 Legal, Regulatory Challenges for “Internet of Things” Technology

This interactive discussion was moderated by H. Michael O’Brien of Wilson Elser and featured Julie Kearney of the Consumer Technology Association, James Trilling of the Federal Trade Commission, and Courtney Stevens Young of Medmarc Insurance Group.

The Supreme Court’s “American Express” Antitrust Case: What’s at Stake

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP.

With the New Year comes the opportunity to consider the cases to the U.S. Supreme Court will hear in the second half of its October Term 2017. As has become routine in the last several years, the Court has an antitrust case on its docket. In Ohio v. American Express Co., the justices will have the opportunity to consider the proper application of the rule of reason to vertical agreements between credit card companies and merchants. The case presents important substantive issues, but also provides a chance to see whether the Court’s recent trends in antitrust enforcement will continue. The justices will hear arguments in the case on February 26. Continue reading “The Supreme Court’s “American Express” Antitrust Case: What’s at Stake”

Influencer Marketing Remains in FTC’s Crosshairs

06633 - Royall, M. Sean ( Dallas )Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners with Gibson, Dunn & Crutcher LLP, and Andrew B. Blumberg, an Associate in the firm’s Dallas, TX office.  The authors would like to thank Philip Jacob Spear, who is also an Associate in Gibson Dunn’s Dallas office, for his substantial contributions to this post.

Social media “influencers” are individuals with large followings on social media platforms, including Facebook, Instagram, YouTube, Twitch, Twitter, and Snapchat, among others.   Influencers include various members of the Kardashian family, a wide array of professional athletes, and individuals whose broad following is home-grown online and on social media. Influencers may tout products or services on their social media pages or feeds in exchange for compensation, effectively turning themselves into an advertising channel. Continue reading “Influencer Marketing Remains in FTC’s Crosshairs”