Former Seahawk Brings Wagetheft to Seattle

Last Friday, the Washington State Attorney General announced criminal charges against Former Seattle Seahawk defensive tackle Sam Adams. Adams is the owner of the West Seattle Athletic Club in Seattle and the Lincoln Plaza Athletic Club in Tacoma. While the Tacoma club is now closed, The Seattle Times reported that 20 employees filed labor complaints against the clubs for unpaid wages and benefits during his ownership.

Friday’s announcement marks only the second time the Attorney General has filed criminal charges in a wage-theft case. While the Washington Department of Labor and Industries investigates more than 4,000 civil complaints of wage theft a year, criminalizing wage theft has been a problem of enforcement in many communities. Seattle’s own efforts to criminalize wagtheft have resulted in exactly 0 convictions, despite being law for over three years.

The AG’s high-profile criminal charge against a former Seahawk as well as last fall’s Paseo suit involving unpaid workers brings much needed attention to wagetheft in the region.

The public can support such efforts to eliminate wagetheft by contacting your state legislator to show support for Senate Bill 5050 and companion House Bill 1089.

Should Emojis Be Used as Evidence in Court?

Last week, The New York Times reported on the trial of accused online black-market operator Ross W. Ulbricht. Adding to the fanfare of the trial is an unusual debate over the admissibility of emojis supposedly sent by the defendant.  The debate has drawn interest from journalists, legal scholars, and the public alike and is one of a number of new technologies being debated in the courtroom.

Created and first used in Japan, emojis literally means “pictures” and can be used to communicate a variety of emotions. Tyler Schoebelen, a Stanford trained linguist who has written scholarly works on the meaning of emoticons, writes in the article:

"If it’s a ‘winkie,’ there’s flirtatiousness or a sort of a fun to it,” Mr. Schnoebelen said. “With smiles, there might be a politeness or a friendliness. If there’s a ‘frowny’ face, it’s indicating you don’t like what’s happening."

Although the emoji or emoticon’s admissibility may be helpful in conveying to a jury the meaning behind certain communications, they can also cause confusion.  A current case is pending before the US Supreme Court, where a man was convicted of making threats to murder his wife, but which he claimed were made in “jest” by use of a face with a tongue sticking out.

UPDATE: On February, 4, 2015, Ross W. Ulbricht was convicted on all seven charges in a Manhattan district court. His sentencing is scheduled for 15 May, although his defense attorney, Joshua Dratel, has promised to appeal today’s verdict.

Amazon Ruling: No Overtime for Those 25-Minute Security Lines

This week, the United States Supreme Court unanimously ruled in Integrity Staffing Solutions, Inc. v. Busk that employees working warehouse jobs at Amazon were not to be paid overtime for post-shift wait lines that sometimes reached 25 minute delays.

Two workers, who filed the class action, alleged they were forced to wait through excessive security check lines following their shifts. The workers contended they should have been compensated for their time spent during these lines. The Ninth Circuit Court of Appeals ruled in favor of the employees before The Supreme Court reversed. The Court reasoned the security screenings were not “integral” to their jobs as employees primarily hired to pack and ship products to Amazon customers; the employees were not hired to walk through security lines.

This logic is distinguished from previous Supreme Court rulings where certain pre/post-shift activities were deemed compensable.  These have included time battery-plant employees spent showering and changing clothes because the chemicals in the plant were “toxic to human beings” [1] and time meatpacker employees spent sharpening their knives because dull knives would “slow down production” on the assembly line, “affect the appearance of the meat as well as the quality of the hides,” “cause waste,” and lead to “accidents.”[2]

The decision is a major loss for wage and hour advocates who believe in principal that all workers should be paid for their time from the moment they are required to be at work. Although the decision was unanimous and now current law, this is not likely the end of pre/post-shift litigation. Employers such as Amazon, armed with this new Supreme Court decision, might be even more emboldened to reduce security screening staffing, reducing costs, and increasing worker lines.

[1] Steiner v. Mitchell, 350 U. S. 247 (1956)

[2] Mitchell v. King Packing Co., 350 U.S. 260 (1956)

Uber Problems: Are Passengers Insured For Car Accidents?

This week, The San Francisco Chronicle, Forbes, and The Washington Post all reported on the confusion over insurance coverage over accidents involving popular app-based services such as UberX, Lyft and Sidecar. Insurance coverage has been a major issue for the ride sharing companies following a high profile accident in San Francisco where a small child was fatally injured by an Uber driver. Similarly this month, a Lyft passenger was fatally injured outside of Sacramento, CA.

Questions have arisen as to what extent a car accident is covered by the driver's policy v. the ride-sharing service? Does a driver or ride-sharing service cover accidents when en route to a pickup? Will a passenger be covered for accidents where the ride-sharing driver is at fault?

According to news reports, Uber has a $1 Million dollar policy, but an accident may not be covered until the driver is matched with a paying customer. This reported policy has drawn criticism following the San Francisco fatality where the Uber driver was not transporting a customer at the time of the collision.

In a traditional auto-accident, the at fault driver will be responsible for damages through his or her insurance policy. If he or she does not have coverage or has inadequate coverage, the party not at fault's uninsured (UM) or underinsured (UIM) coverage usually will apply. Ensuring potential victims of auto accidents are covered when using app-based ride sharing programs is vital to the safety of the urban areas where these services operate.

When Fitbit Data Is Called As A Witness In Your Injury Case

Last week, The Atlantic and Forbes, both reported on first use of Fitbit (or wearable technology’s) use in the courtroom. According to the articles, the personal injury suit involves an injured personal trainer who is using Fitbit to support her testimony about her reduced levels of activity following an injury. Her Fitbit data is analyzed by Vivametrica and measured against activity data from the general population. Although the case is occurring in Canada, it signals the increasing interest from both personal injury lawyers and insurance defense lawyers on the use of this data.

One can imagine the scenario where an individual has used the Fitbit months before a major injury and thus continued to use it following the accident. The data, if collected accurately, may illustrate the change in activity levels. This evidence could prove helpful to a jury in evaluating the impact an injury has on a plaintiff, one of the most difficult areas of a case to prove.

While this is reportedly the first use of Fitbit data in the courtroom, the use of data from social fitness sites has been used before. In 2012, the performance tracking site Strava came under scrutiny following a fatal collision between a cyclist using Strava and 71-year old Sutchi Huia crossing the street with his wife in New York City. Strava also came under attack in a personal injury suit brought by the estate of the cyclist fatally injured while attempting to set a new record on the performance tracking site. The use of performance tracking data from wearable devices will be seen more frequently as consumer demand and improvement in tracking technology occurs.

Human Rights Commission Holds Free Wagetheft Workshop in Tacoma

The City of Tacoma Human Rights Commission is holding a Wagetheft Workshop for workers and victims of wagetheft tonight in Tacoma, WA. Wagetheft is a major issue both nationally and here in the Pacific Northwest. Last week’s closing of Paseo in Seattle set off a flurry of media attention and social media on the issue of exploited workers. The Human Rights Commission’s effort to educate the community on wagetheft and the remedies available through the Department of Labor & Industries and private attorneys should be applauded.

“Wagetheft” is an employer’s taking of time from the employee and not appropropriately compensating the worker for that time. Wagetheft violations can include unpaid overtime, denial of rest breaks and meal periods, improper tip sharing, misclassification etc. Wagetheft disproportionately affects low-wage workers who have rights under Washington State Law and the mirroring Federal Labor Standards Act. However, many low-wage workers have unclear immigration status, do not speak English, or are otherwise afraid to complain to their employers. Tacoma’s leading effort to address wagetheft in our community is essential to addressing the needs of working local residents.

For Questions or More Information about the Workshop, Contact:

William Yi, Tacoma Human Rights
wyi@cityoftacoma.org or (253) 591-5162

Non-compete Agreements Popping Up in Uncommon Industries

If you think non-competes are just for executives and scientists, you should add the guy who makes your sandwich at Jimmy John’s. The Huffington Post recently reported that Jimmy Johns is one of a number of low-wage-field companies requiring non-compete clauses with workers. The New York Times and The Seattle Times similarly reported on the increased use of non-compete clauses for such positions as hair stylists, event planners, and camp counselors.

Generally, non-compete agreements are specific provisions in the employee’s contract that restrict an employee from working for a competitor after his or her employment ends. Non-competes are usually limited in scope, duration, and geography (i.e. Doctor may not practice anesthesiology for 1-year within a 5 mile radius upon leaving employment).[1] The agreements can have a significant impact on an employee seeking part-time work during or full-time work after his employment ends.

In Washington, non-compete agreements must be “reasonable and lawful.”[2] Generally, two factors are used to determine whether a non-compete is reasonable: the geographic scope of the restraint and the time period for which an employee is restrained.[3] Washington Courts recognize the competing interests of an employee’s desire and right to work after leaving employment and an employer’s interest in protecting an established client base and investment in employee training.

However, the growing trend in low-wage workers being subject to non-competes has garnered increased criticism as examples of employers using unfair leverage over low-wage workers; low wage workers who routinely lack the bargaining power or benefit of a lawyer in drafting a more reasonable agreement.

For further reading, see San Diego Law Professor Orly Lobel’s book on the rise of non-competes in “Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding.”

[1] See also Emerick v. Cardiac Study Ctr., Inc., P.S., 170 Wash. App. 248, 258, 286 P.3d 689, 694, as amended (Aug. 8, 2012), review denied sub nom. Emerick v. Cardiac Study Ctr., Inc., 175 Wash. 2d 1028, 291 P.3d 254 (2012) (Washington courts have not yet held that restrictive covenants between physicians are unenforceable).

[2] See Wood v. May, 73 Wn.2d 307, 313, 438 P.2d 587 (1968)

[3] See, e.g. Alexander & Alexander, Inc. v. Wohlman, 19 Wn. App. 670, 688, 578 P.2d 530 (1978) (100-mile restriction to apply only to customers of employer’s Seattle office);

Paseo, The Workers, and The Sandwich Caught In-Between

Yesterday, hungry customers of beloved Paseo Restaurant in Seattle were met with a simple sign on restaurant doors reading

“Due to unfortunate circumstances, we are closing our doors. We appreciate all the support and loyalty you have shown us over the years. We will miss you. Thank you, The Paseo Crew.”

Paseo’s two restaurants in Fremont and Ballard, serving its famous cuban sandwich, have received national acclaim for its cheap eats cuisine and is a favorite among Seattleites.

However, local media, including the Puget Sound Business Journal, The Seattle Times, and The Stranger have reported on the possible reasons for the closing, namely, a lawsuit filed by four Paseo workers for unpaid overtime, rest-break violations, and alleged racial discrimination on September 14, 2014 in King County Superior Court (No. 14-2-24553-0 SEA). The complaint mainly alleges that employees were paid straight time wages for hours worked over 40 hours and not paid the additional 50% premium amounting to time-and-a-half. Non-exempt employees working over 40 hours per week, generally must be paid time-and-a-half their hourly rate under RCW 49.46.130.

As an attorney who regularly represents employees failing to receive wages and denied rest breaks inconsistent with the Washington Minimum Wage Act, Industrial Welfare Act and Federal Labor Standards Act, the Paseo workers’ claims, if true, are not uncommon in the restaurant industry.[1]

Workers who allege unpaid wages or denied rest breaks may file a claim at the Department of Labor & Industries or hire a private attorney. The "Dept. of L&I" may issue penalties and pressure businesses with threats to their licenses while private attorneys may seek recovery of the wages through the court system. Attorneys generally work on a contingency fee basis or recover attorneys’ fees from the other side if successful. This allows for low-wage workers to seek the services of a private attorney without the expense of hiring a lawyer by the hour.

Seattle has stepped-up efforts to address wage theft concerns by proposing new minimum-wage investigators in the Mayor’s new budget. The City of Tacoma is also making efforts to address wage theft by holding a Wage Theft Workshop for employees on November 20, 2014. For more information about the seminar, visit the City of Tacoma Human Rights Commission.

[1] See As Bad You Think It is, It’s Worse: Wage Theft Comes to America by Les Leopold published in the HUFFINGTON POST on November 11, 2014.