Tuesday, March 21, 2023

인력회사 사용하는 고용주들 소송 조심해야


인력회사 사용하는 고용주들 소송 조심해야

 댓글 2023-03-21 (화) 김해원 노동법 전문 변호사

Tuesday, March 14, 2023

미 법원, '근로자' 인정해달라는 우버·리프트 기사에 '노'


미 법원, '근로자' 인정해달라는 우버·리프트 기사에 '노'

2023-03-14 12:05


캘리포니아 항소법원, "우버 노동자는 독립 계약자"…1심 판단 뒤집어

우버, 리프트 운전기사를 독립 계약자로 보는 법안에 반대하는 시위
우버, 리프트 운전기사를 독립 계약자로 보는 법안에 반대하는 시위

[AFP 연합뉴스 자료사진. 재판매 및 DB 금지]

(서울=연합뉴스) 오진송 기자 = 우버와 리프트 등 차량호출 서비스 업체 운전자는 근로자가 아닌 독립 계약자로 봐야 한다는 미국 법원의 판단이 나왔다.

13일(현지시간) 월스트리트저널(WSJ), 뉴욕타임스(NYT) 등에 따르면 캘리포니아주 항소법원은 이날 우버나 리프트 플랫폼 기업의 운전기사를 독립 계약자로 분류한 법률개정안 22호가 주헌법에 위배되지 않는다고 판결했다.

이는 지난 2021년 8월 법률개정안 22호가 주헌법에 위배된다고 판단한 하급심 판결을 뒤집은 것이다.

앞서 캘리포니아 주는 2020년 11월 우버와 리프트 등의 운전기사를 근로자가 아닌 독립사업자로 규정하는 내용의 법률개정안 22호를 주민투표에 부쳐 통과시켰으나 이와 관련한 논란이 지속돼 왔다.

이에 따르면 우버와 리프트 등은 최저임금과 초과근무시간 등의 규제를 받지 않는다. 다만 운전기사들에게 안전교육과 성희롱 예방 교육을 제공하고, 근무 시간에 따른 건강 보조금을 지급하게 하고 있다.

항소법원 재판부는 의견서에서 "법률개정안 22호는 입법부가 규정하는 노동자에 대한 보상 권한을 침해하거나 단일 주체 원칙을 위배하지 않는다"며 판결 이유를 설명했다.

토니 웨스트 우버 최고법률책임자는 성명에서 "이번 판결은 앱 기반 노동자와 수백만 캘리포니아 주민들의 승리"라며 "주 전역에서 일하고 있는 운전기사들은 앱 기반 노동 고유의 유연성을 유지하면서도 새로운 혜택을 제공하는 법률개정안 22호에 만족하고 있다"고 말했다.

반면, 서비스종사자국제노조(SEIU) 캘리포니아주 대표 데이비드 우에르타는 "모든 캘리포니아 유권자는 이 민주주의 사회에서 기업들이 유권자를 속이고 법을 사기 위해 수백만 달러를 쓰는 행태를 걱정할 것"이라고 반발했다.

미국에서는 우버처럼 고용 계약이 아닌 서비스 제공 계약 형태로 일하는 '긱 이코노미'(Gig economy·긱 경제) 규모가 커지면서 임시직 고용자들의 지위를 어떻게 규정할 것인지와 관련한 소송이 이어지고 있다.

법률개정안 22호 반대 피켓을 든 운전기사
법률개정안 22호 반대 피켓을 든 운전기사

[AFP 연합뉴스 자료사진. 재판매 및 DB 금지]


California Court Mostly Upholds Prop. 22 in Win for Uber and Other Gig Companies


California Court Mostly Upholds Prop. 22 in Win for Uber and Other Gig Companies

The decision lessens the chances that gig drivers will be considered employees in the state, but it is expected to be appealed to the state Supreme Court.

Kellen Browning writes about the gig economy and its workers.

A California appeals court said on Monday that Proposition 22, the ballot measure passed by state voters in 2020 that classified Uber and Lyft drivers as independent contractors rather than as employees, should remain state law.

The decision by three appeals court judges overturned the ruling last year by a California Superior Court judge, who said the proposition was “unenforceable.” It was a victory for companies like Uber, which use gig drivers to transport passengers and deliver food, but do not pay costs that an employer would have to. Those costs can include drivers’ unemployment insurance, health insurance and business expenses.

Still, the appeals court ruling was not the final say. The Service Employees International Union, which, along with several drivers, filed a lawsuit challenging Proposition 22 in early 2021, is expected to appeal the decision to the California Supreme Court, which would then have several months to decide whether to hear the case.

The judges overruled Frank Roesch, the lower court judge whose decision to throw out the proposition in August 2021 set the stage for a protracted, high-stakes legal battle that will determine the job status of hundreds of thousands of California drivers.

The opponents of the proposition argued that the ballot measure was unconstitutional under several grounds. It set limits on the State Legislature’s ability to oversee workers’ compensation for gig drivers. It included a rule restricting them from collective bargaining that critics said was unrelated to the rest of the measure, and it set a seven-eighths majority vote of the Legislature as the bar for passing amendments to the measure related to collective bargaining — a requirement that was considered nearly impossible to achieve.

The three court of appeals judges, who heard oral arguments in the case in December in San Francisco, disagreed on two of the three points, but agreed that requiring collective bargaining to occur through an amendment to the proposition “violates separation of powers principles,” and ordered that clause to be severed from the rest of the ballot measure.

“The proper remedy,” the judges wrote, is to sever that section and “allow the rest of Proposition 22 to remain in effect, as voters indicated they wished.”

Tony West, Uber’s chief legal officer, said in a statement that the ruling was a “victory for app-based workers and the millions of Californians who voted for Prop 22.” He added that he was “pleased that the court respected the will of the people.”

The Protect App-Based Drivers and Services coalition, an industry group, said the ruling upheld the policy of protecting “the independent-contractor status of app-based drivers in California, while providing drivers with new benefits.” Lyft and DoorDash also issued statements calling the ruling a victory for drivers and voters.

The Service Employees International Union condemned the decision.

“Every California voter should be concerned about corporations’ growing influence in our democracy and their ability to spend millions of dollars to deceive voters and buy themselves laws,” David Huerta, the president of S.E.I.U. California, said in a statement.

Jon Streeter, one of the three appeals court judges, disagreed with large parts of the 63-page ruling of his colleagues, Tracie Brown and Stuart Pollak. In a 64-page dissent, Justice Streeter wrote that all of Proposition 22 should be thrown out, in large part because of its clause limiting the legislature’s authority over workers’ compensation for gig drivers.

“I would affirm the judgment, but I prefer to go further. I believe we must invalidate Proposition 22 in its entirety,” Justice Streeter wrote. He added that the definition of independent contractors used in the measure was “constitutionally infirm.”

Uber and other companies have long argued that drivers value the flexibility of being an independent contractor without set hours from an employer, and say they would have to give up that freedom if they were made employees. Labor activists reply that drivers are exploited, deserve better health care and employment benefits and could maintain their flexibility under a traditional employment model.

Gig companies spent more than $200 million pushing for Proposition 22, which gave gig workers limited benefits but exempted them from Assembly Bill 5, a law passed by the California Legislature in 2019 that set a new standard for determining whether workers should be considered employees under the law.

If A.B. 5, which is facing its own legal challenge, is ever applied to gig drivers, Uber and other companies could be found to be improperly treating those drivers as independent contractors rather than as employees.

As a result, gig companies would have to adjust their business models at the cost of several hundred million dollars per year, either by giving drivers further independence or — more likely — converting some number of them into employees, possibly of a third-party vehicle fleet operator that would use Uber’s and Lyft’s platforms.

Uber has used that model in parts of Europe and has considered using it in California. Uber and Lyft have said they would need to pause their operations in California for some length of time while they switched to that model.

In a blog post in December, Alison Stein, a senior economist at Uber, laid out a scenario of “forced reclassification” that would be devastating for the company’s business. She wrote that drivers would have to work set shifts, the service’s prices and wait times would surge, the company would reduce service in smaller cities and only about a quarter of current drivers would be hired full-time as employees.

Those arguments are misleading, said Veena Dubal, a professor at the University of California College of the Law, San Francisco. She has said that drivers deserve to be treated as employees.

“Nothing about employment status restricts flexibility,” Ms. Dubal said, adding that raising prices is a “business decision, not a necessary consequence of the law.” She said many drivers worked for the platforms only rarely, so implying that a vast majority of drivers would have to find new work was deceptive.

“The oligarchs are dancing in the streets tonight,” Ms. Dubal wrote on Twitter after Monday’s ruling.

But the legal battle is far from over. Even though the California Supreme Court does not take up every case that is appealed to it, legal experts said they expected it to do so in this instance.

“It’s very hard to imagine them passing on a case of this importance,” said Seth Harris, a law and policy professor at Northeastern University who has studied gig drivers’ employment status.

Kellen Browning is a technology reporter in San Francisco, where he covers the gig economy, the video game industry and general tech news. @kellen_browning

You’re Now a ‘Manager.’ Forget About Overtime Pay.


You’re Now a ‘Manager.’ Forget About Overtime Pay.

New evidence shows that many employers are mislabeling rank-and-file workers as managers to avoid paying them overtime.

Tiffany Palliser, wearing a black dress, stands with her hands clasped at her waist and in front of a massive tree trunk.
Tiffany Palliser estimates that she worked at least 50 hours a week on average at Panera Bread, but she says she never received overtime pay.Credit...Scott McIntyre for The New York Times
Tiffany Palliser, wearing a black dress, stands with her hands clasped at her waist and in front of a massive tree trunk.

For four years beginning in 2014, Tiffany Palliser worked at Panera Bread in South Florida, making salads and operating the register for shifts that began at 5 a.m. and often ran late into the afternoon.

Ms. Palliser estimates that she worked at least 50 hours a week on average. But she says she did not receive overtime pay.

The reason? Panera officially considered her a manager and paid her an annual salary rather than on an hourly basis. Ms. Palliser said she was often told that “this is what you signed up for” by becoming an assistant manager.

Federal law requires employers to pay time-and-a-half overtime to hourly workers after 40 hours, and to most salaried workers whose salary is below a certain amount, currently about $35,500 a year. Companies need not pay overtime to salaried employees who make above that amount if they are bona fide managers.

Many employers say managers who earn relatively modest salaries have genuine responsibility and opportunities to advance. The National Retail Federation, a trade group, has written that such management positions are “key steps on the ladder of professional success, especially for many individuals who do not have college degrees.”

But according to a recent paper by three academics, Lauren Cohen, Umit Gurun and N. Bugra Ozel, many companies provide salaries just above the federal cutoff to frontline workers and mislabel them as managers to deny them overtime.

Because the legal definition of a manager is vague and little known — the employee’s “primary” job must be management, and the employee must have real authority — the mislabeled managers find it hard to push back, even if they mostly do grunt work.

The paper found that from 2010 to 2018, manager titles in a large database of job postings were nearly five times as common among workers who were at the federal salary cutoff for mandatory overtime or just above it as they were among workers just below the cutoff.

“To believe this would happen without this kind of gaming going on is ridiculous,” Dr. Cohen, a Harvard Business School professor, said in an interview.

Dr. Cohen and his co-authors, professors at the University of Texas at Dallas, estimate that the practice of mislabeling workers as managers to deny them overtime, which often relies on dubious-sounding titles like “lead reservationist” and “food cart manager,” cost the workers about $4 billion per year, or more than $3,000 per mislabeled employee.

And the practice appears to be on the rise: Dr. Cohen said the number of jobs with dubious-sounding managerial titles grew over the period he and his co-authors studied.

Federal data appear to underscore the trend, showing that the number of managers in the labor force increased more than 25 percent from 2010 to 2019, while the overall number of workers grew roughly half that percentage.

From 2019 to 2021, the work force shrank by millions while the number of managers did not budge. Lawyers representing workers said they suspected that businesses mislabeled employees as managers even more often during the pandemic to save on overtime while they were short-handed.

“There were shortages of people who had kids at home,” said Catherine Ruckelshaus, the general counsel of the National Employment Law Project, a worker advocacy group. “I’m sure that elevated the stakes.”

But Ed Egee, a vice president at the National Retail Federation, argued that labor shortages most likely cut the other way, giving low-level managers the leverage to negotiate more favorable pay, benefits and schedules. “I would almost say there’s never been a time when those workers are more empowered,” he said. (Pay for all workers grew much faster than pay for managers from 2019 to 2021, though pay for managers grew slightly faster last year.)

Experts say the denial of overtime pay is part of a broader strategy to drive down labor costs in recent decades by staffing stores with as few workers as possible. If a worker calls in sick, or more customers turn up than expected, the misclassified manager is often asked to perform the duties of a rank-and-file worker without additional cost to the employer.

“This allows them to make sure they’re not staffing any more than they need to,” said Deirdre Aaron, a former Labor Department lawyer who has litigated numerous overtime cases in private practice. “They have assistant managers there who can pick up the slack.”

Ms. Palliser said that her normal shift at Panera ran from 5 a.m. to 2 p.m., but that she was often called in to help close the store when it was short-staffed. If an employee did not show up for an afternoon shift, she typically had to stay late to cover.

“I would say, ‘My kids get out of school at 2. I have to go pick them up, I can’t keep doing this,’” said Ms. Palliser, who made from about $32,000 to $40,000 a year as an assistant manager. She said her husband later quit his job to help with their child-care responsibilities.

She won a portion of a multimillion-dollar settlement under a lawsuit accusing a Panera franchisee, Covelli Enterprises, of failing to pay overtime to hundreds of assistant managers. Panera and representatives of the franchise did not respond to requests for comment.

Gassan Marzuq, who earned a salary of around $40,000 a year as the manager of a Dunkin’ Donuts for several years until 2012, said in a lawsuit that he had worked roughly 70 hours or more in a typical week. He testified that he had spent 90 percent of his time on tasks like serving customers and cleaning, and that he could not delegate this work “because you’re always short on staff.”

Mr. Marzuq eventually won a settlement worth $50,000. A lawyer for T.J. Donuts, the owner of the Dunkin’ Donuts franchise, said the company disputed Mr. Marzuq’s claims and maintained “that he was properly classified as a manager.”

Workers and their lawyers said employers exploited their desire to move up the ranks in order to hold down labor costs.

“Some of us want a better opportunity, a better life for our families,” said Gonzalo Espinosa, who said that in 2019 he often worked 80 hours a week as the manager of a Jack in the Box in California but that he did not receive overtime pay. “They use our weakness for their advantage.”

Mr. Espinosa said his salary of just over $30,000 was based on an hourly wage of about $16 for a 40-hour workweek, implying that his true hourly wage was closer to half that amount — and well below the state’s minimum wage. The franchise did not respond to requests for comment.

The paper by Dr. Cohen and his co-authors includes evidence that companies that are financially strapped are more likely to misclassify regular workers as managers, and that this tactic is especially common in low-wage industries like retail, dining and janitorial services.

Still, lawyers who bring such cases say the practice also occurs regularly in white-collar industries such as tech and banking.

“They have a job title like relationship manager or personal banker, and they greet you, try to get you to open account,” said Justin Swartz, a partner at the firm Outten & Golden. “They’re not managers at all.”

Mr. Swartz, who estimated that he had helped bring more than two dozen overtime cases against banks, said some involved a so-called branch manager inside a big-box store who was the only bank employee on site and largely performed the duties of a teller.

The practice appears to have become more difficult to root out in recent years, as more employers have required workers to sign contracts with mandatory arbitration clauses that preclude lawsuits.

Many of the cases “are not economically viable anymore,” said Mr. Swartz, citing the increased difficulty of bringing them individually through arbitration.

Some lawyers said only an increase in the limit below which workers automatically receive overtime pay is likely to meaningfully rein in misclassification. With a higher cutoff, simply paying workers overtime is often cheaper than avoiding overtime costs by substantially increasing their pay and labeling them managers.

“That’s why companies fought it so hard under Obama,” said Ms. Aaron, a partner at Winebrake & Santillo, alluding to a 2016 Labor Department rule raising the overtime limit to about $47,500 from about $23,500. A federal judge suspended the rule, arguing that the Obama administration lacked the authority to raise the salary limit by such a large amount.

The Trump administration later adopted the current cutoff of about $35,500, and the Biden administration has indicated that it will propose raising the cutoff substantially this year. Business groups say such a change will not help many workers because employers are likely to lower base wages to offset overtime pay.

Noam Scheiber is a Chicago-based reporter who covers workers and the workplace. He spent nearly 15 years at The New Republic, where he covered economic policy and three presidential campaigns. He is the author of “The Escape Artists.” @noamscheiber