CWS 3.0: November 19, 2014

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Contingent worker sues Google, searches for justice

A former Google worker in New York sued both the search giant and online staffing firm Elance-oDesk claiming he and others were misclassified as independent contractors.

The class action lawsuit demands unpaid wages, including overtime. It also seeks other damages as well as attorneys’ fees. It contends named plaintiff Jacob McPherson and other contingents worked as many as 45 hours per week but Google never paid for more than 30. McPherson worked through oDesk while at Google.

Elance-oDesk on Monday released a statement regarding the lawsuit: “oDesk is committed to operating our website in a lawful and ethical manner,” according to the statement. “When the lawsuit came to our attention, we investigated and are satisfied that the allegations against us have no merit.”

McPherson worked as a site merchandiser in the Google Play unit from January 2013 through December 2013 when his contract was ended, according to the suit.

Google initially offered McPherson employment for $35 per hour for a maximum of 15 hours per week — later raising the max to 30 hours, according to the lawsuit. Google required McPherson register at oDesk to receive the offer. He was also told he would be considered a freelancer and be paid through oDesk.

The lawsuit claims McPherson and other freelancers worked at Google’s Chelsea Market offices in New York and did the same work as W-2 employees. They were also assigned to teams that included W-2 employees and attended mandatory meetings and training sessions. Google also issued McPherson a cell phone, tablet and laptop.

Other similarities to employees cited by the lawsuit include: McPherson’s email signature identified him as “Books + Magazines Merchandising, Google Play” and gave Google’s New York office address; freelancers were required to follow a Google-approved method for doing their work; and Google’s contractor code of conduct spelled out several restrictions including “appropriate attire” and “Google’s blogging policy.” The code also warned refusal of a work assignment and excessive absenteeism could result in the immediate end of their assignment.

The suit argues McPherson and other contingents were required to complete set tasks during a set time frame. And they would not receive pay if the work took longer.

“Google had a practice of requiring plaintiff and others similarly situated to decrease the time spent on repeated tasks on a weekly basis,” according to the complaint. “When Google’s requirement became impossible and the time spent on these tasks could not be decreased, plaintiff and others similarly situated were forced to complete the tasks on their own time.”

McPherson did complain the tasks could not be completed within the allotted time, according to the suit. But he was told the tasks must be completed without regard to time or a replacement would be found.

McPherson applied for unemployment insurance benefits in January, and the New York State Department of Labor determined he was an employee for purposes of unemployment insurance, according to the lawsuit.

An attorney for the plaintiff did not return calls for this story. A message was left with Google’s press office for comment.

The case could serve as a warning to online staffing platforms about the need for managing independent contractor risk. Diana Gabriel, VP of strategy and solutions at Staffing Industry Analysts, says online talent platforms, when asked, often haven’t an answer for what they’re doing mitigate risk. “This is a great example of why they need to start considering how to protect themselves,” Gabriel says.

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