Judge Denies Uber's Motion To Dismiss, Sets Up Jury Trial For 'Employees Or Independent Contractors?' Question

from the innovation-through-jurisprudence? dept

In a decision that's sure to be applauded by Uber's opponents, Judge Edward Chen has denied the ride-sharing company's request to declare its drivers independent contractors. If Uber is forced to suddenly take thousands of employees on board, along with the added expenses and liabilities such a move would entail, it's going to have a much harder time maintaining -- much less expanding -- a service that many people find preferable to the taxicab strangleholds present in many cities.

In denying the company's motion for summary judgment, Chen calls Uber out for the "narrow framing" of its "we're an app, not a company" assertions, but notes that Uber does grant its drivers enough leeway that the question cannot be completely resolved via a motion in his court. Chen also raises the spectre of further regulation -- something that's similarly unlikely to work out in Uber's favor.

The application of the traditional test of employment – a test which evolved under an economic model very different from the new “sharing economy” – to Uber’s business model creates significant challenges. Arguably, many of the factors in that test appear outmoded in this context. Other factors, which might arguably be reflective of the current economic realities (such as the proportion of revenues generated and shared by the respective parties, their relative bargaining power, and the range of alternatives available to each), are not expressly encompassed by the Borello test. It may be that the legislature or appellate courts may eventually refine or revise that test in the context of the new economy. It is conceivable that the legislature would enact rules particular to the new so-called “sharing economy.”

And then sends the case on its way to a jury trial, something he notes earlier is the only way to resolve an issue this complex. No precedent is set or will be set, at least not in Chen's court.

Until then, this Court is tasked with applying the traditional multifactor test of Borello and its progeny to the facts at hand. For the reasons stated above, apart from the preliminary finding that Uber drivers are presumptive employees, the Borello test does not yield an unambiguous result. The matter cannot on this record be decided as a matter of law. Uber’s motion for summary judgment is therefore denied.

This order disposes of Docket No. 211.

So, a case that has been running since August of 2013 may still be months away from a resolution. Uber's inability to get the suit tossed doesn't necessarily mean it's destined to become Yet Another Cab Company. It still has options, but it also has an uphill battle against plenty of incumbents… and the politicians who prefer what they know to unfamiliar market entrants.

Filed Under: contractors, employees, gig economy, labor, ridesharing
Companies: lyft, uber

Bill Introduced To Keep Bored Federal Employees From Viewing Porn While On The Clock

from the and-what's-wrong-with-simply-enforcing-existing-policies? dept

Because federal employees just can't seem to stop watching porn while on the clock, a legislator is stepping in to do something about it.

Rep. Mark Meadows on Wednesday introduced the Eliminating Pornography from Agencies Act, which he said would prevent government employees from taking their eyes off their work.

"Prevent" is a strong word, considering both the limitations of the nascent bill and federal employees' willingness to go above and beyond when it comes to porn-watching in the workplace. Meadows' statement on the bill points out one particular EPA employee who admitted to viewing porn up to 6 hours a day (indeed, he was watching porn when the Inspector General came knocking) and had accessed or downloaded more than 7,000 pornographic images.

It's not just the EPA. The SEC and FCC also employ their fair share of (apparently) professional porn enthusiasts. But what Meadows is demanding in his bill [pdf] is little more than a reiteration of existing policies.

Except as provided in subsection 9 (b), not later than 90 days after the date of the enactment of this Act, the Director of the Office of Management and Budget shall issue guidelines that prohibit the access of a pornographic or other explicit web site from a Federal computer.

Subsection 9 (b) basically states "unless watching porn is your job" -- i.e., investigative work, etc. Given the amount of porn-watching occurring at federal agencies, it would seem that some new "Porn-Watcher Watcher" positions will be opening if Meadows' bill manages to snag a Presidential signature.

But the bill -- as proposed -- will have little to no effect on ardent federal porn fans. New guidelines, or even a new firewall (if that's the direction the OMB goes), won't stop those intent on whiling away their work hours in a permanent state of arousal. Firewalls can be circumvented and, unless the guidelines contain significant punishments for violating them, new policies will be equally useless.

It can safely be said that no current government policies allow for the accessing of porn with government computers, so we know the policy route is wholly ineffective. The addition of bolded print or ALL CAPS from the OMB isn't suddenly going to take the lead out of these government pencils. The longevity of the EPA's porn fan (both in terms of per-day consumption and continued employment) should be all the evidence needed to prove Meadows' bill useless -- something Meadows doesn't seem to have considered when writing his press release (or the bill itself).

I'm in full agreement that it shouldn't take a new law to prevent federal employees from abusing themselves and their equipment while on the clock. But it won't be fixed by a more-disappointed-than-angry press release and bill demanding new policies within 90 days of enactment. The government actually needs to take control of this situation by booting its bored and frisky employees out of their all-too-comfortable positions and hire people willing to treat federal employment with the same respect millions of private employees are expected to treat their jobs. Enforce the policies already on the books. The nation really doesn't need more laws.

Filed Under: employees, government, mark meadows, porn

For An Intelligence Agency, The NSA Doesn't Seem To Have Much Idea What's Going On Inside Its Own Walls

from the inside-of-a-panopticon-is-the-least-secure-area dept

Better late than never, the NSA seems like it's finally getting around to fixing the problems on the inside of the agency.

So sharp is the fear of threats from within that last year the NSA planned to launch at least 4,000 probes of potentially suspicious or abnormal staff activity after scrutinizing trillions of employee keystrokes at work. The anomalous behavior that sent up red flags could include staffers downloading multiple documents or accessing classified databases they do not normally use for their work, said two people familiar with the software used to monitor employee activity.

Somebody's putting in some overtime! In addition to sifting through the vast amount of data collected in its many quasi-legal (and some completely illegal) programs, the agency has also had to wade through "trillions" of logged employee keystrokes. (The haystacks are coming from inside the house!)

This investigation has chewed up a lot of money with very little in the way of results, suffering from "critical delays" and (go figure) a lack of cohesive implementation. Meanwhile, a sysadmin headed to Hong Kong with an NSA-to-go kit. Not that a more expeditious rollout of the investigations would have mattered.

Contractors like Snowden, an NSA spokeswoman said, were not included in the plans to reinvestigate 4,000 security clearances.

The agency claims these investigations aren't in place to root out offenders (although it's certainly welcome to do so), but to "reduce the potential" of an insider compromise.

“Periodic re-investigations are conducted as one due-diligence component of our multifaceted insider threat program.”

Well, whatever's been put into place so far has failed dramatically, and what's being pursued doesn't look very promising. The agency claims the first rollout was stunted by resources being diverted towards mitigating the fallout from Bradley Manning's leaks. Now, as the agency tries to reignite the investigative process, Snowden (and several media entities) are standing behind it, periodically blowing out the flame.

The NSA still seems to have no idea what exactly Snowden took and that lack of knowledge has forced it to play nothing but defense since the leaks began. The internal vetting process seems to be about as "efficient" as the external process, albeit for very different reasons. An agency that can't search its own email doesn't have a chance against an individual with access and determination.

And then there's this aspect of the whole debacle, as pointed out by Bruce Schneier:

I am completely croggled by the fact that the NSA apparently had absolutely no contingency plans for this sort of thing.

It doesn't, and that's a very worrying issue for a NATIONAL SECURITY AGENCY. At this point, the NSA can't close the barn doors fast enough and every assertion it makes about the limits, oversight or "trustworthiness" of its programs is usually undermined within a few days by yet another leak. Something aimed at nothing more than a "reduction" in leaky insiders just isn't going to be good enough. On the other hand, the public is benefiting from the NSA's pain -- it's now more informed about the agency's activities than it's been for the previous half-decade -- and the cumulative effects of the leak-and-denial cycle have forced the NSA to actually participate in a national discussion and make tentative steps towards transparency.

Filed Under: clearance, employees, insider threats, nsa, top secret

DailyDirt: Improving Productivity

from the urls-we-dig-up dept

There are only so many hours in a day. It'd be great to be able to get more done in less time, and people are always looking for easy (or any!) solutions that might boost their productivity. Some folks try polyphasic sleep schedules to try to get more waking hours, but that's cheating. (Sleeping less is probably not healthy, either.) Here are just a few other stories about changes that you can try to get more things done.

• Coffitivity claims that ambient noise (like the kind from a local coffee shop) can increase creativity with "enough noise to work." Rooms that are too quiet can be distracting, and obviously, rooms that are too loud can impair mental focus and concentration -- and there's some research to back it up. [url]
• Pixar's headquarters is designed with all the bathrooms in the atrium -- so that employees from different departments might have more opportunities to mingle. Hopefully, though, people aren't discussing their work projects while taking care of other business.... [url]
• The Hawthorne Effect was named after a set of studies at the Hawthorne plant in the 1920s -- where increased productivity was observed when the factory lights were brightened OR darkened. Basically, the workers were more productive, not because of the lighting changes, but because they realized their bosses were checking on them. (The dramatic effect of changing the lighting was apparently fictional, but the Hawthorne Effect is still a phenomenon that researchers try to account for when designing psychological studies.) [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: creativity, design, distractions, employees, hawthorne effect, management, noise, productivity, work
Companies: coffitivity, pixar

Major Labels Back To Going After Vimeo For Its Lipdubs

from the promoting-music-is-piracy! dept

You may recall that, back in 2009, a bunch of the major labels filed a copyright infringement lawsuit against online video site Vimeo, paying particular attention to the fact that the site had popularized "lipdubs" in large part due to this quite popular lipdub by Vimeo's own staff of the song Flagpole Sitta by Harvey Danger.

Lip Dub - Flagpole Sitta by Harvey Danger from amandalynferri on Vimeo.

While EMI insisted that that particular video and others like it were doing incalculable harm to itself and the musicians it represented, the lead singer from Harvey Danger actually noted that the video made him "incredibly happy" as it helped increase the popularity of the song.

Either way, that lawsuit sat on the shelf for a while, as the judge suggested that it ought to await the outcome of the somewhat similar Viacom/YouTube lawsuit. After that lawsuit got sent back to the district court by the appeals court, the major labels are apparently getting restless and have sought to revive the case against Vimeo, by seeking a summary judgment in their favor.

The case is a bit more complex than the YouTube case, which may spell trouble for Vimeo (and owners IAC), but that doesn't mean that the labels are staying away from a whole bunch of absolutely preposterous arguments. The best thing that the labels have going for them in their argument is the fact that Vimeo employees posted videos that had infringing content. The DMCA safe harbors protect a website from user behavior, but not their own. So, legally, their argument seems a bit stronger on that front, but culturally, it still seems like a dumb argument, as highlighted by the singer's comments above. Most people don't think lipdubs should be illegal, because that seems silly. Lipdubs are about people celebrating and promoting the music they love in creative ways.

Really, that's the crux of this lawsuit. While Vimeo may be in legal trouble, it really highlights the basic cultural divide at issue here. People who put together lipdubs spent a ton of time and effort to creatively enhance the music they love and share it with the world in a cool manner, which does not replace the music, but tends to advertise it. For those unfamiliar with the basics of copyright, saying lipdubs are illegal just feels wrong, even if there may be some legal backing to it.

Making things perhaps somewhat trickier for Vimeo is the fact that it does somewhat aggressively monitor the content on its site for other issues, and doesn't allow a variety of other types of videos. The labels use this to imply that it is actively ignoring music copyright while blocking all sorts of other content:

Except for music, Vimeo strictly controls, monitors, and curates (in its words) the audiovisual works it copies, performs, and distributes. It prohibits – and uses its personnel and tools to review, monitor, and delete – all sorts of videos, including television programs, movies, and movie trailers, as well as “gameplay videos,” “commercial” videos (such as product promotions or real estate tours), “sexually explicit” videos, and “fan vids,” among others.... It enforces its discretionary and subjective guidelines to eliminate content that is not “Vimeoesque.”... All in order to mold its website and control its image.... Despite its pervasive involvement in and control of the content on its website, Vimeo does nothing to limit the infringing use of music on its website.

That may sound damning, but it's not as strong as it sounds. Determining whether or not a video includes infringing music is not as simple as the paragraph makes it sound. Vimeo has no way of knowing whether or not the video maker properly licensed the song in question in most cases. The other things it monitors for are much easier for it to determine. This is a major issue that supporters of copyright law often ignore.

The labels' attack on lipdubs is really kind of ridiculous when you think about it:

One of the early “creations” by Vimeo’s founder was a video format in which he “lip synched” to a commercial, copyrighted recording, synchronized the recording into the video during editing, and uploaded the video, making it available to every Vimeo user.... He named this “a lip dub,” and it was promoted as the “signature” Vimeo video genre, something that “put us [Vimeo] on the map.” .... As Vimeo and its users know, these popular lip dub videos, by definition, copy and incorporate copyrighted music without consent or license. ... (If Vimeo “suddenly started to ban videos with copyrighted music, like lipdubs, then I would be pissed but I would have to realize it’s their final decision.”) That also is apparent from Vimeo’s instructions on its home page on how to create lip dubs.... (“Like a music video. Shoot yourself mouthing along to a song then synch it with a high quality copy of the song in an editing program.”).

Lip dubs were heavily promoted. Vimeo provided a “Lip Dub Stars” channel, labeling it a channel “we like” and securing commercial sponsorship for it.... Lip dubs were featured as a “Vimeo Obsession” on Vimeo’s home page.... “Lip dub” became one of the top seven key words that drew visitors to Vimeo ..., and appeared (in several variants) in an internal chart of top “searches per day” on the Vimeo Website

Of course, one could make an argument that many lipdubs could be considered fair use, as being transformative. But, the labels assume that, by default, they all must be infringing.

Furthermore, among the more dubious arguments made by the labels is claiming that Vimeo's decision to not use a tool to filter out copyright infringement is the equivalent of "willful blindness." This is wrong. The law does not say that sites need to make use of filters and other tools to find possibly infringing works -- in part because a tool cannot properly assess if a work is infringing. They also make the argument that because Vimeo put "lip dub" in meta tags it's proof that they were promoting infringement. That seems very weak for a number of reasons, not the least of which is that search engines haven't used meta tags in ages. Also, the labels argue that because Vimeo offered licensable songs for sale to videomakers it knew that it was committing and encouraging infringement. This seems particularly bizarre. It's attacking Vimeo for actually doing the right thing and helping its users license music. But, just because they do that, it doesn't give them direct knowledge of whether or not users licensed music elsewhere. Oh yeah, the labels also -- ridiculously -- claim that pre-1972 songs are not subject to the DMCA, despite multiple courts rejecting this argument.

All that said, it still seems likely that Vimeo may have an uphill battle here. The fact that employees uploaded infringing works is going to make the case difficult, even if there are reasonable arguments for why they did it. The filing also has a bunch of quotes suggesting general awareness of infringement on the site, but "general" awareness is not enough to lose DMCA safe harbors. You need to be aware of specific infringement, and it's not entirely clear that that's true. There's one example of someone saying they weren't sure if something was licensed and offering to make a copy without music just to be safe, but that's not the same as knowing that the effort is definitely infringing. The other part that might come back to bite Vimeo is the lack of having a "repeat offender" policy for its DMCA takedowns. This is something that has tripped up others as well. The law requires such a policy, but it's unclear if Vimeo actually had one until about the time it was sued.

Still, it really does seem like this is yet another example of the labels fighting against how people enjoy culture today -- and how they help spread it. It's really shameful to see them on the attack, rather than figuring out ways to support it.

Filed Under: copyright, dmca, employees, lipdubs, safe harbors
Companies: capitol records, caroline records, emi, riaa, vimeo, virgin records

Who Owns Employee Social Media Accounts? 'The Correct Answer Is: Shut Up'

from the winner dept

Back in October, we had a post looking into the legal issues of who actually owns a Twitter account, especially when a famous employee of a large corporation uses the Twitter account as a part of his or her job. As we noted, the law isn't clear, and for the most part, companies seem to assume that the employees own the accounts, so no one's really made a big stink about an employee leaving and taking a ton of "followers" with them. But, it's really only a matter of time.

Still, an anonymous reader sent over this recent take on the same issue by lawyer Jay Shepherd that gets right to the heart of the matter, brilliantly, in saying that if you're even asking the question as an employer, you're probably in trouble:

Who owns an employee's LinkedIn contacts?

Or Facebook friends? Or Twitter tweeps? If an employee is using these social-media sites in his or her professional capacity, does the employer have the right to take the contacts away once the employee leaves?

The correct answer is: shut up.

Seriously. If you're an employer or a manager and you're seriously asking these questions, you just don't get it when it comes to social media. You're missing the whole point of these social-networking sites.

His overall argument is pretty much exactly how we feel: employers need to let go of some things, and an employee's ability to build up relationships that they could potentially take with them when they leave is one thing to let go. The benefit of allowing this is much greater in the long run for a company. If you're going to try to claim ownership over employees' social media accounts, your employees are going to recognize that, and they won't care or invest as much effort into those accounts, meaning the company ends up getting very little benefit, even if they technically end up "owning" the account at the end of the day.

One of the key lessons that we try to point out over and over again on this site is that you don't have to control everything. Quite frequently, by letting go of control, you stand to benefit much, much more. And this is yet one more example where that's true.

Filed Under: employees, ownership, social media

Walmart Employees Fired For Disarming Gun-Toting Robber

from the no-good-deed dept

Walmart has pretty specific rules for how employees are supposed to deal with shoplifters, however, it does seem a bit bizarre that the company would go so far as to fire some employees who disarmed a gun-toting thief. Obviously, the idea is that they don't want to encourage other employees to do the same thing, but does it really reach up to the level of firing the employees? At some point you have to wonder if there's a middle ground that makes sense.

Filed Under: employees, policies
Companies: walmart

TSA Agents Absolutely Hate New Pat Downs, Find Them Disgusting And Morale Breaking

from the this-is-what-you-get-with-security-theater dept

One of the common themes that people keep mentioning in talking about the new TSA pat down procedures is that those involved must "enjoy" the groping they're giving people. But, of course, most TSA agents are normal every day people who don't actually want to grope random people. Chris Tolles points us to a post from BoardingArea.com, who reached out to some TSA agents and found that many TSA agents hate the new rules and find it to be sapping morale to have to grope passengers. Some of it appears to be the verbal abuse they're getting from travelers, but some of it is just the fact that they have to keep touching people they'd rather not touch in that way:

"It is not comfortable to come to work knowing full well that my hands will be feeling another man’s private parts, their butt, their inner thigh. Even worse is having to try and feel inside the flab rolls of obese passengers and we seem to get a lot of obese passengers!"

Of course, it does seem like a lot of the "morale" part comes from everyone accusing them of molesting them. I recognize, they're not the ones making policy, but many of the people being groped do feel violated and it's not surprising that many of them speak out.

"Molester, pervert, disgusting, an embarrassment, creep. These are all words I have heard today at work describing me, said in my presence as I patted passengers down. These comments are painful and demoralizing, one day is bad enough, but I have to come back tomorrow, the next day and the day after that to keep hearing these comments. If something doesn’t change in the next two weeks I don’t know how much longer I can withstand this taunting. I go home and I cry. I am serving my country, I should not have to go home and cry after a day of honorably serving my country."

This is going to be a serious problem for the TSA if it doesn't figure out something quick. So far, the TSA seems to be in near absolute denial that this is actually a problem, but if these TSA responses are indicative of how most TSA agents feel, there are going to be a lot fewer security people at airports very, very soon.

Of course... it could be true that at least some of those actually are enjoying the process. Reader Lance point us to (an admittedly hearsay) story of a pilot traveling with his 18-year old daughter. As they approached the naked image scanner, the pilot overheard a TSA agent say into his radio: "heads up, got a cutie for you." One of the points the TSA has been making is that the folks looking at the images are off in another room somewhere, unable to see the people -- but they are in contact with those at the security checkpoint, and you'd have to imagine this kind of thing happens.

Filed Under: employees, morale, pat downs, tsa

Scuba Diving Organizer Sues Web Forum After Debate Over Scuba Death Liability

from the hello-section-230,-hello-streisand dept

When will companies learn? Blaine points us to a story that's now a few months old, but still worth talking about. Apparently, two years ago, there was a scuba diving accident where someone died and some others were injured. On a particular scuba diving forum, ScubaBoard.com, there was a discussion about the incident. Apparently there had already been some other somewhat negative postings about the travel agency, Maldives Scuba Diving, that organized (and potentially ran) the trip, and from there the conversation spiraled. The person who owns the travel agency decided to sue just about everyone, including ScubaBoard.com. For ScubaBoard, it seems like this should be a quick Section 230 dismissal based on safe harbors, but the site's owner is apparently still scrounging up the money to deal with this. Also, the complaint apparently tries to get around this by claiming that commenters on the message boards are "all agents or employees of Intermedia [ScubaBoard's owner], or made the postings at issue at Intermedia's direction." That's an argument that is likely to get laughed out of court.

There may be some cases against individual posters, but the comments sound like your ordinary comment board opinion and hyperbole. At least in the quoted comments, it's difficult to see anything that's actually defamatory. Upsetting? Perhaps, but not defamatory. It sounds like something bad happened, and whether or not the operator of this company was responsible, there were plenty of better ways to respond. However, busting out the lawsuit, suing the message board itself, as well as 100 posters, just seems to reinforce the problems and bring even more attention to the accident and the concerns people have with this woman's company.

Filed Under: employees, forums, free speech, liability, scuba diving

Japan's Smile Scanners A Classic Misuse Of Technology

from the smile-for-the-scanner dept

As pointed out on the Freakonomics Blog:

Japan's Keihin Express Railway Co. has set up "smile scanners" at 15 of its stations, where railway employees have their smiles assessed by software in the hopes of perfecting a customer-friendly look.

This is such a classic misuse of technology by a corporation. The goal of the company is to provide more positive and friendly customer service but its technique of using a "smile scanner" is going to have the opposite effect. Nobody likes to be forced into happiness, and the employees will end up resenting the scanners, their bosses for making them use the scanners and the customers for expecting them to smile.

Instead, a smart company would try to figure out how to make its employees genuinely happy so that they smile because they want to smile. This would create endless positive outcomes for the company, the employees and the customers.

Sometimes technology can look like it provides a quick fix when, in fact, it is just an illusion.

Cross-posted from MyMediaMusings.com

Filed Under: employees, japan, motivation, smile
Companies: keihin express railway