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Startup workers sue to be recognized as employees, not mere contractors

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OAKLAND, Calif.—Earlier this month, two federal judges in San Francisco allowed two significant labor lawsuits filed against Uber and Lyft to move ahead. In those cases, drivers for both services have sued in an attempt to be classified as employees rather than independent contractors. As an employee, workers have certain rights and benefits not traditionally granted to non-employees, such as overtime, minimum wage, worker’s compensation, and more.

Beyond those cases, court filings show that at least four new similar lawsuits (some of which are proposed class-action cases) were filed in state and federal courts in the San Francisco Bay Area over the past month against so-called "sharing economy" startups. The underlying issue is the same: who exactly is—or should be—an employee?

Here in Oakland, one law firm has brought two of the recent cases against Homejoy, a San Francisco company that describes itself as a "movement to make cleaning services available to a broad audience, rather than a luxury for the rich." The lawsuits, filed earlier this month in California Superior Court in San Francisco, are formally known as Zenelaj vs. Homejoy and Ventura vs. Homejoy.

Seated in his downtown 10th floor office overlooking Lake Merritt, Byron Goldstein described a common story among his clients (Vilma Zenelaj and Diana Ventura) who used to work as cleaners for Homejoy.

"They describe the job of going to these houses that they don't know anything about and doing a lot of cleaning and at risk of getting bad reviews and that impacting their pay or being removed," he told Ars, explaining that cleaners don’t know very much about the house where they have been assigned to work, much less what state it is in prior to their arrival.

"A lot of the cleaners do want the opportunity to either be employees or to have more of their control, so they can increase their profit," Goldstein added. "Now they’re just working very hard under specific rules without much opportunity to increase their profit. It's a very very difficult job."

Other similar suits (Levin v. Caviar Inc.) have been filed against companies that include Try Caviar, a food delivery startup that was acquired in August 2014 for $90 million. Another case was brought by Levin’s Boston-based lawyers against Postmates, another delivery service, in Singer and Williams v. Postmates. In February 2015, a fifth civil complaint (Cobarruviaz v. Maplebear) was brought in federal court against Instacart, a San Francisco venture-backed startup that picks up and delivers groceries.

In many cases, workers for these companies sign contracts where they agree to stick to the lower employment status—however, those contracts can be challenged after the fact as part of a lawsuit. Just because someone has signed a document with their employer stating that they are a contractor does not make it ironclad.

None of these companies responded to Ars’ request for comment, except for one. one: Katie Baynes, a Caviar spokeswoman, declined to comment.

“Cleaners cannot tell Homejoy how much driving they prefer to do”

Goldstein’s co-counsel in this case, David Browne, also told Ars that companies often have their business set up to rely on independent contractors because it saves the company money. But even if a worker signs a contract agreeing to be a de facto freelancer, that doesn’t make it so under the law.

"We think that with the amount of control that the companies have over the cleaners, they can't be classified as independent contractors—we think they need to be classified and paid as employees," Browne said.

In the case of Homejoy, the plaintiffs allege that there is strong evidence that they should be considered as full-fledged employees. In the case of Diana Ventura, a woman from Los Angeles County who worked for Homejoy for a total of nine months in 2013 and 2014, she alleges Homejoy violated several provisions of California labor law.

Her As her complaint argues:

Cleaners are unable to provide any additional information before jobs are assigned. For example, a Cleaner cannot tell Homejoy that while she may have picked different zip codes or cities as part of her territory, she only wants to stay within one zip code, or within one small part of a zip code, each day. Instead, if a Cleaner chooses Oakland and San Francisco as part of her territory, Homejoy alone determines whether the cleaner will stay in Oakland on a given day, stay in San Francisco on a given day, or travel in between the two cities multiple times on a given day. Furthermore, Cleaners cannot tell Homejoy whether they want a little or a lot of down time between each job, or each job start time or end time. Cleaners cannot tell Homejoy how much driving they prefer to do, whether the jobs need to be near public transportation, whether the Cleaners prefer to be stuck in rush hour traffic or instead on routes that are reverse commutes, how many jobs the Cleaners want to perform each day, or whether or not they want to return to a previous customer.

Context matters

To be clear, this type of labor dispute isn’t unique to tech companies by any means. Many labor law experts pointed to several years worth of legal disputes between FedEx and its drivers, nearly all of whom are independent contractors. In August 2014, the 9th Circuit Court of Appeals reversed a lower court ruling, finding that drivers in California and Oregon were, in fact, employees. (Since 2011, FedEx has changed its hiring model in this region.)

But FedEx, by its own admission, continues to face dozens of related cases nationwide over this issue. As the company wrote in its annual report in July 2014:

Adverse determinations in matters related to FedEx Ground’s independent contractors, however, could, among other things, entitle certain of our owner-operators and their drivers to the reimbursement of certain expenses and to the benefit of wage-and-hour laws and result in employment and withholding tax and benefit liability for FedEx Ground, and could result in changes to the independent contractor status of FedEx Ground’s owner-operators in certain jurisdictions. We believe that FedEx Ground’s owner-operators are properly classified as independent contractors and that FedEx Ground is not an employer of the drivers of the company’s independent contractors.

On the federal level, the Fair Labor Standards Act (FLSA) of 1938 is the governing body of law that dictates who is and isn’t an employee, and it has some overriding principles. (California has a similar corresponding state law.)

As the United States Department of Labor writes on its website:

A number of "economic realities" factors are helpful guides in resolving whether a worker is truly in business for himself or herself, or like most, is economically dependent on an employer who can require (or allow) employees to work and who can prevent employees from working. The Supreme Court has indicated that there is no single rule or test for determining whether an individual is an employee or independent contractor for purposes of the FLSA. The Court has held that the totality of the working relationship is determinative, meaning that all facts relevant to the relationship between the worker and the employer must be considered.

In the case of Homejoy and the other civil complaints that he has read, one labor law professor thinks that the plaintiffs have a slam-dunk case slam dunk case, and that startups will have a hard time defending their practices.

"At the end of the day, day [companies] are going to have this common law test of who's an employee, and they're going to be disappointed to learn that courts apply the old-fashioned test of categories," Michael LeRoy of the University of Illinois Illinois, told Ars.

Similarly, Ruben Garcia, a labor law professor at the University of Nevada Las Vegas, told Ars that someone like a plumber who is employed on a one-off basis by customers is an obvious independent contractor, but someone who is consistently spending long hours working for the same company is more likely to be considered as an employee under the law.

"Are these workers subject to the control of an employer?" he asked. "It doesn't matter if the employer is on site, is in your home, is telling you how to do every part of your job. If they exert sufficient control or the right to control they can be considered as employees. The problem or the issue with these companies companies, is that they want to exert a certain amount of control and yet the more they do, the more they look like employers that have to pay benefits and all the things that come with being an employer."

Miriam Cherry, a labor law professor at Saint Louis University put it more succinctly:

"You don't want to regulate them out of existence, but not paying minimum wage—we decided that back in the Depression."

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pfctdayelise
1 day ago
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​If You Touch This Plant It Will Make You Vomit In Pure Agony

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​If You Touch This Plant It Will Make You Vomit In Pure Agony

The Gympie Gympie is an Australian plant with spindly stems and heart-shaped light green leaves. Brushing your hand against it can make you throw up from the pain. Using it as toilet paper has made people shoot themselves. This plant will ruin you.

The Gympie Gympie: Endangered or Endangering?

The Gympie Gympie has broad, flat leaves that rise on a series of surprisingly delicate stems. It can grow to be only a few feet tall. Botanists believe that its fast growth rate and wide leaves make it ideal for the small, sunlit gaps in the otherwise thick canopy of a forest. Its habitat is limited to a few patches of lowland rainforest around Queensland in Australia. Rainforests are shrinking, the climate is changing, and the Gympie has recently become an endangered plant.

Many would say that endangering the Gympie Gympie is a job well begun. This innocuous-looking greenery is one of the most feared plants in the world. Its sting is so agonizing that a slight brush to the hand from one of the leaves can make a person throw up from the pain.

Not that the leaves are the only dangerous part. Only the roots of the Gympie are free of the fine hairs that lodge in the skin and deliver the sting. Every subsequent moment of pressure on the hairs causes them to put out more poison into the skin. The pain feels like fire, and it lasts. As long as the hairs are embedded in the skin, the pain keeps coming. Stings from the Gympie cause the lymphatic system to go into overdrive. A person's throat, armpits, and groin swell up and ladle on the pain as the lymph nodes expand.

Just being around the Gympie hurts. It sheds its hairs continuously. Scientists believe that the stinging hairs keep the ground clear so it can take advantage of those sunny gaps in the canopy. Botanists working in the field go into sneezing fits and get nose bleeds from standing near the plant. Botanists who handle hundred-year-old specimens of Gympie still get stung.

​If You Touch This Plant It Will Make You Vomit In Pure Agony

Tales of the Killer Plant

Through the years, a few people have had extensive encounters with the plant. One man, who fell into a bush during World War II, was strapped to a hospital gurney, screaming, for three weeks. Another got hit in the chest in the late 1990s. For two years, his chest hurt every time he took a cold shower.

There are plenty of horror stories, one of which is more horrible than the rest, despite no one getting hurt. As the Gympie's fame spread, the military became interested in the tree. In the late 1960s, the British Army had people send them samples of the stinging tree for use as a chemical weapon. Nothing has been heard since then. (We assume everyone who was even casually involved with the project died and they had to dynamite the facility.)

The Gympie Gympie's Future

No one wants this plant in their back yard, along their hiking trail, or, ideally, on their planet. This might account for why the Gympie Gympie is vanishing. Another reason, astonishingly, might be food. The plant produces edible fruit, though the fruit has been called both "warty" and "bland." That's a sad reward for nerves of steel, which is what it takes to eat the purplish berries. First, the harvester has to dress up in a full coverall suit, including a plastic face-mask because the plant can irritate the eyes (one person compared it to having acid poured on his eyes). The harvester will then knock the fruit off the tree with a stick. The fruit has to be denuded of needles by being rubbed in layers and layers of cloth, which presumably can never be used again. Then comes the nasty part. Because the needles are so fine, they can't all be seen, so "A final rubbing with bare hands will detect any stinging hairs left before eating." Hurrah.

Those who run into the Gympie in the wild generally get treated with pain killers, but the stingers are both too fine and too numerous to be picked out by hand – particularly by someone screaming in pain. To get the needles out, people put the sticky parts of bandages, or home waxing strips, on their stings, and yank out the stingers the way they would real hairs.

Perhaps the Gympie Gympie knows how close it is to being wiped out. In 2014, two different trees have been found with all the parts seemingly intact, but with no toxin in the silica hairs on the leaves. Although no one is entirely sure what causes the overwhelming sting, scientists believe that it's a peptide called moroidin. Remove that one component, and the plant's ability to cause pain is gone. Exactly why the plant would lay down its arms is unknown, but perhaps one day it will only be an agonizing legend.

[Source: Threatened Species, Dendocnide Moroides, Australian Journal of Botany, Australian Geographic, Is It Edible, Gympie-Gympie Losing It Sting?]

Top Image: CSIRO, Second Image: C Goodwin.

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sarcozona
4 days ago
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What to surround your fortress with
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sirshannon
3 days ago
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Why would anyone live in Australia? [Part 37463]

Dashcam video of teen drivers crashing while distracted

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"Self-driving cars can't arrive fast enough."  
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pfctdayelise
4 days ago
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ahhhhh terrifying.... watch if you feel like having 10 mini heart attacks
Melbourne, Australia
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gradualepiphany
3 days ago
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Yeahhhhhhh, every one of these kids totally deserved it.
Los Angeles, California, USA

Tinder API prank connected bros with bros

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this is kind of cruel, but the screenshots are hilarious  
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pfctdayelise
4 days ago
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cruel? pff. (CN some predictable transphobia)
Melbourne, Australia
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By The Whelk in "They can't take away the X-Files, Scully. They tried." on MeFi

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And they'll be married and bitter and old!

They're divorced and the story is about how they're getting on when they're put back in the same office, nothing supernatural whatsoever occurs.

the Ex-Files
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pfctdayelise
4 days ago
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MASHEO RIDES AGAIN!

Well it's gone now but back in the day I was part of a Noromo community called MASHEO, Mulder and Scully Hate Each Other. We would take the piss out of shippers analysis by using the same techniques to demonstrate that they hated each other. Fun times. This storyline could make it canon tho!

Ah: lives on in Wayback Machine http://web.archive.org/web/20100516023209/http://masheo.com/
Melbourne, Australia
omegar
4 days ago
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The Ex-Files!
México, D.F.
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Meet The Cool Beans Designed To Beat Climate Change

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Meet The Cool Beans Designed To Beat Climate Change

These beans, grown on test plots at the International Center for Tropical Agriculture in Colombia, can thrive in temperatures that cripple most conventional beans.

These beans, grown on test plots at the International Center for Tropical Agriculture in Colombia, can thrive in temperatures that cripple most conventional beans.

Courtesy of CIAT/Neil Palmer

A planet that is warming at extraordinary speed may require extraordinary new food crops. The latest great agricultural hope is beans that can thrive in temperatures that cripple most conventional beans. They're now growing in test plots of the International Center for Tropical Agriculture, or CIAT, in Colombia.

Many of these "heat-beater" beans resulted from a unique marriage, 20 years ago, of tradition and technology. The matchmaker was a Colombian scientist named Alvaro Mejia-Jimenez. But for almost two decades, his innovation sat on the shelf, unused.

Steve Beebe, leader of CIAT's Bean Program, in a field of experimental bush beans at CIAT's headquarters in Colombia.

Steve Beebe, leader of CIAT's Bean Program, in a field of experimental bush beans at CIAT's headquarters in Colombia.

Courtesy of CIAT/Neil Palmer

Mejia-Jimenez was determined to cross-breed two different types of beans that normally are sexually incompatible: the common bean — a species that includes pinto, black and kidney beans — and the tepary bean, a little-known crop traditionally grown by indigenous communities in the American Southwest.

The tepary bean is no longer widely planted. The beans are small, and the plant doesn't produce very many of them.

"As a crop, it doesn't have a great future," says Stephen Beebe, who leads CIAT's bean breeding program. Beebe spoke to us via Skype from Addis Ababa, Ethiopia.

But this bean does have its defenders. Writer, social scientist and food activist Gary Nabhan has championed it as a vital piece of Southwestern cuisine and culture. (Nabhan wrote his master's thesis on the tepary bean way back in 1978.)

Mejia-Jimenez, meanwhile, was drawn to the small bean's ability to tolerate harsh conditions, such as heat and drought. He wanted to transfer these genetic traits into the common bean.

With persistence and a little help from technology, he succeeded. succeeded. First, he used pollen from a tepary bean plant to fertilize the flower of a common bean. An embryo formed. In nature, that hybrid embryo would not survive to form a seed, but Mejia-Jimenez stepped in to rescue it. He carefully cut the immature embryo from the plant and placed it in a laboratory dish filled with nutrients, where it grew into a new plant. After several generations of such cross-breeding, he ended up with viable seeds that combined genetic traits from both the tepary bean and the common bean.

Recently harvested beans from experimental CIAT plots in Colombia.

Recently harvested beans from experimental CIAT plots in Colombia.

Courtesy of CIAT /Neil Palmer

But that, it seemed, was the end of his project. No one saw any particular value in these new genetic combinations until about five years ago, when plant crop breeders around the world began to focus on the challenges posed by climate change. started focusing on the challenge of coping with a changing climate.

Beans, for instance, don't do well when the temperature stays above 66 degrees at night.

An international research network called the Consultative Group on International Agricultural Research sponsored a close look at how rising temperatures might affect bean production. The results were shocking. CIAT carried out a study of the potential effect of rising temperatures on bean production, and its experts were shocked. "It looked like we could lose 50 percent of our cropping area in one generation, by mid-century," says Beebe. This could be a disaster for the estimated 400 million people around the world who rely heavily on beans for nourishment.

CIAT's breeders went through their storage banks of seeds, looking for beans that might do better under such conditions. It tested 1,000 different samples at special hot-weather "screening sites." Many of the best-performing varieties were the novel beans that Mejia-Jimenez had created years earlier. He had succeeded in incorporating the tepary bean's heat hardiness into common beans.

"Thank heavens that we had this crazy guy, years ago, who was doing this," Beebe says.

CIAT has identified 30 specific genetic lines that are able to tolerate night-time temperatures above 72 degrees. This is about seven degrees higher than what's usually tolerated by commonly grown beans today.

According to Beebe, it has been surprisingly easy to move this genetic trait, via cross-pollination, from one variety of common bean to another.

CIAT's researchers discovered that a few of its existing varieties also can tolerate tolerated high temperatures. Beebe says in those cases, breeders didn't realize what they had, until they looked. "Sometimes we don't know what we're doing," he says. "We're mixing genes helter skelter. Something combined to produce that heat tolerance, but I can't explain where it came from."

Planting those new varieties has revealed that heat already may be seriously cutting into bean production. Farmers in Nicaragua recently started culitvating one of these black bean varieties — and it produced harvests twice as large as other beans that farmers had been planting. Similar results were observed in Costa Rica. "You put two and two together; they must have some heat stress out there," Beebe says.

CIAT plans to make additional heat-tolerant bean varieties available to farmers in countries around the world, from Latin America to East Africa. A small red bean is almost ready to go; others will take a few more generations of breeding.

Copyright 2015 NPR. To see more, visit http://www.npr.org/.
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pfctdayelise
4 days ago
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This is good but let's be real, "survive" != "beat". Giving up the metaphorical and largely literal war against our natural environment might help
Melbourne, Australia
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