Welcome back for another week of What's Next, where we report on the intersection of law and technology. This week, we gaze into a crack left open by an appellate court ruling ripping up Uber driver's arbitration agreements. And Google has to post even more employee guidelines. Plus, California's privacy law faces amendments and controversy. Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster3.

Piecing Together the Scraps of Uber's Shredded Arbitration Agreements

Last week, an appeals court ruled in favor of Uber drivers in an order that could release a kraken of litigation against the ridesharing industry. Well, if not a kraken because of the opinion's limited scope, it could amount to a pile-on of lawsuits that, at the very least, would resemble a heaping plate of calamari.

The U.S. Court of Appeals for the Third Circuit last Wednesday overturned a district court judge, who granted Uber's motion to dismiss a New Jersey case over drivers' classification as contractors and routed the suit to arbitration. Instead, the appeals court found Uber's drivers could cruise under an exemption in the Federal Arbitration Act reserved for transportation workers participating in foreign or interstate commerce.

Uber's attorneys from Gibson, Dunn & Crutcher and Littler Mendelson had argued that its drivers do not fall under the Section 1 exemption of the FAA that the U.S. Supreme Court has sectioned off for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce" in cases such as New Prime Inc. v. Oliveira. Uber's counsel claimed that case law only applied the exemption to transportation workers dealing with cargo, not passengers.

The Third Circuit was unconvinced. "In the end, we remain unswayed by Uber's attempt to drive us towards its imagined sunset," wrote Judge Joseph Greenaway Jr., who authored the opinion.

"We kind of thought it odd Uber has had some success advancing the argument that people who transport passengers across state lines would somehow not be transportation workers," said Justin Swidler of Swartz Swidler in Cherry Hill, New Jersey. Swidler said his team was surprised that no one had yet litigated that Uber's workforce fell squarely in the transportation sector.

Swidler expects the decision will open the floodgates against Uber and bring the lawsuits already pelting the company into the light. "The real hope is to really challenge the system, and if it's determined that Uber is misclassifying its drivers, forcing Uber to really deal with that fact," he said. "And of course, if it's determined that Uber is not misclassifying its drivers then that should be great news for Uber. But the point here is to get justice from our legal system one way or the other."

In fact, the Third Circuit ruling has already incentivized litigation. Shannon Liss-Riordan of Lichten & Liss-Riordan said the decision emboldened her to bring an Uber worker misclassification suit Thursday. "No court until yesterday had said before that transporting passengers could be interstate commerce," she told The Recorder's Ross Todd. "So, based on that as well, I have filed this case in order to seek injunctive relief from the court as well as damages for the drivers who have not had their expenses reimbursed and have not received their proper wages under California wage laws."

Liss-Riordan's suit also comes on the heels of California's new law codifying the Supreme Court of California's decision in Dynamex, which requires companies to apply the three-pronged test laid out in the ruling to classify workers as contractors. The law, which has yet to be signed by Gov. Gavin Newsom, has Uber taping its knuckles, reports Higher Law's Cheryl Miller.

"Having to take a harder test does not determine the outcome of the test," said Uber Chief Legal Officer Tony West in a call with media less than an hour after the law passed. West said the company had no plans to reclassify workers and insisted that drivers could pass Dynamex's test.

Swidler said it's almost unbelievable that the U.S. has set up a system where companies can ignore laws in place to protect employees and states, and hide from the enforcement of those actions by forcing everyone into private arbitration. Swidler said he hopes the Third Circuit ruling will begin to chip away at that system. "Will it change the gig economy?" he asked. "I think it will change the idea that you can skirt laws forever simply because you have an arbitration agreement, at least in respect to companies like Uber and Lyft."

Just getting to court is considered a victory today, he said, that's how much litigation has changed over the past five to 10 years. But Swidler said he's pleased this complaint will not be handled behind closed doors. "We are relieved that we get the U.S. justice system and not Uber's justice system to have this complaint resolved," he said.

Google's New Rules of Employment

A couple weeks back, I followed up on reports that Google's culture of social and political dissent was incubating legal drama in the workplace. So much so, the tech behemoth known for encouraging employee openness created new policies in August to shut down conversations around certain rabble-rousing topics, including politics. However, in a settlement with the company announced Thursday, the National Labor and Relations Board advised Google to tread carefully when it comes to regulating worker speech.

The Wall Street Journal reported that one of the complaints in the settlement centered on former Google employee Kevin Cernekee, known for his vocal workplace conservatism. Cernekee filed a charge with the NLRB after the company reprimanded him for "disrespectful, disruptive, disorderly, and insubordinate" comments regarding a thread about gender diversity in tech, according to Wired.

"We have agreed to post a notice to our employees reminding them of their rights under the National Labor Relations Act," a Google spokesperson told The New York Times. "As a part of that notice, we will also remind employees of the changes we made to our workplace policies back in 2016 and 2017 that clarified those policies do not prevent employees from discussing workplace issues."

The rules Google agreed to post in its workplace, according to CNBC, include reminders that federal law gives its employees the right to unionize and discuss working conditions with employees and media. They also address the issues of diversity that have been a rallying cry for employees like Cernekee and James Damore, who was fired in 2018 over a viral memo that claimed gender diversity initiatives won't fully address tech's gender gap, proposing that biological differences could also be to blame. "YOU HAVE THE RIGHT to freely bring workplace diversity issues and requests to clarify permissible workplace behavior to us on behalf of yourself and other employees and WE WILL NOT do anything to interfere with your exercise of that right," the agreed upon guidelines say. "WE WILL NOT threaten employees because they presented workplace diversity issues to us and requested clarifications of permissible workplace behavior."

Age is Not Just a Number

Besides Google's business with the NLRB, the company has also had to update its policies around age discrimination. An $11 million settlement reached in July with more than 200 Google applicants who say they were passed over for positions because of their age also ironed out new rules to encourage age diversity among its workforce. As part of the settlement, which Ogletree, Deakins, Nash, Smoak & Stewart negotiated on behalf of Google, the company agreed to train employees on age bias, create a subcommittee to recruit for age diversity in certain engineering positions, change its marketing materials to reflect employees of all ages and thoroughly investigate complaints of age-based discrimination.

Yet, the new guidelines do not shield the company from a complaint filed in Santa Clara County Superior Court earlier this month by an employee who said his boss called him "Grandpa," and "old and slow."

Rodney Broome, the 72-year-old former Google employee, asserts that he faced "a relentless campaign of harassment and discrimination" when his 40-something boss joined the team in 2017. The complaint alleges that his supervisor referred to him as "a worthless piece of shit," directed his co-workers to "tell Grandpa to pick up the pace" and said he was in "retirement mode." Beyond being labeled "grandpa," the complaint claims Broome's car was broken into and burglarized not long after his boss suggested he might have a hard time getting to work one day or have car trouble.

"These claims are unsubstantiated and we intend to defend them vigorously," a company spokesperson said.

Broome's lawyer, John Winer of Winer, Burritt, & Tillis in Oakland, said the case is one of the most blatant instances of age discrimination he's seen, but one that's part of a pattern of discrimination and harassment stemming from the tech industry's youthful culture.

"I think that Google and other companies are far more focused on earnings than they are on human resource issues," said Winer, who is handling the case alongside Winer Burritt's Shawn Tillis. "Instead of attempting to assure that there is no harassment and discrimination in the workforce, in fact it's rampant."

Mayhem in the Final Hours of California's Privacy Law

California lawmakers' lastest round of amendments to the state's privacy act hit the governor's desk last week. However, a report from Politico said one legislator's vote could have been tainted by big tech.

Cheryl Miller wrote that the amendments to the California Consumer Privacy Act, which goes into effect Jan. 1, include:

>>> AB 1355 creates a one-year exemption shielding business-to-business communications and transactions from certain disclosure provisions. The bill also authorizes the attorney general to decide what constitutes a "verifiable consumer request" for information in an attempt to ensure that personal data does not fall into the wrong hands.

>>> AB 1146 allows a business to keep customers personal information if that data is necessary to provide a warranty or product recall information.

>>> AB 874 clarifies that the definition of personal information under the Consumer Privacy Act does not include "deidentified" or aggregate consumer data. The measure adds business-sought language clarifying that personal information must be "reasonably capable" of being associated with a particular consumer or household, as opposed to just "capable," to be subject to the law's disclosure requirements.

As a systems engineer and co-chair of the state's national cybersecurity task force, Assemblywoman Jacqui Irwin had become an outspoken participant in crafting the law. However, when Irwin began advocating to cut language that required companies to disclose or delete data collected from households, the media began shining a light on the lawmaker's own home. Irwin is married to the chief operating officer of Ring Inc., an Amazon-owned smart home company and general gobbler of household data.

"My role in the privacy debate in the Legislature is focused on bringing people together and solving the practical issues posed to us as policy makers and is independent of any job or role my husband may have," she told Politico in a statement. "My education and professional background as a systems engineer provides me distinct qualifications in the Legislature to weigh in on matters related to technology."

Musk's 'Schoolyard' Twitter Fight Lawyers for Elon Musk are claiming that the tweet he posted calling a cave diver "pedo guy" was nothing more than a "schoolyard taunt," despite the Tesla CEO paying a private investigator $50,000 to investigate that claim. On Monday, Musk's Quinn Emanuel Urquhart & Sullivan counsel asked a district court judge to grant summary judgement and dismiss the defamation case that unfolded after the British cave rescuer, Vernon Unsworth, accused Musk of staging a "PR stunt" to aid a boys soccer team trapped in a Thai cave last year. Read more from Ross Todd here.

GirlsDoPorn Paints Picture With Instagram The Jane Doe law graduate who helped organize 22 women into a lawsuit against porn company GirlsDoPorn.com had to answer for some of her #Wanderlust social media posts in court last week. The former law student testified that the site ruined her life by fraudulently promising anonymity before posting her adult videos online, bringing her romantic relationships and career in law to an abrupt end. However, the defense tried to tell a different story with the help of the woman's Instagram posts, flashing photos of the plaintiff luxuriating in Gstaad, Switzerland; Cabo San Lucas, Colombia; and Beverly Hills, California. In one image, Doe was on a private jet, and told the GirlsDoPorn lawyers that she couldn't remember where she went or with whom. Read more from Scott Graham here.

Walmart Appoints Chief Counsel of Digital Citizenship As Walmart embraces e-commerce and all the privacy concerns that come with the online territory, the retail giant has hired digital privacy advocate and former Amazon lawyer Nuala O'Connor as the company's first chief counsel of digital citizenship. The former president and CEO of the Center for Democracy and Technology will advise Walmart on privacy issues, cybersecurity and the ethics of burgeoning technology such as artificial intelligence. Read more from Phillip Bantz here.