IBM failed to properly cover work-from-home expenses incurred by employees during the COVID-19 pandemic, a state appellate court ruled, potentially creating a legal pathway for similar action against other companies.
The 3-0 ruling Tuesday by the California 1st District Court of Appeal overturns a lower court decision in a class-action lawsuit involving thousands of IBM employees.
“We always thought the trial judge got it wrong, and now the court of appeals has confirmed our belief that the stay-at-home orders do not insulate IBM from having to comply with the labor code,” Craig Ackermann, one of the plaintiffs’ attorneys, wrote in an email.
Attorneys representing IBM did not respond to a request for comment. IBM could challenge the ruling by petitioning the case to the California Supreme Court.
The lawsuit, filed by former IBM employee Paul Thai and others, came after Gov. Gavin Newsom’s stay-at-home public health order in March 2020, which shuttered most work sites. Thai used personal funds to complete his job while working from home, according to the lawsuit.
“To accomplish his duties, he required, among other things, internet access, telephone service, a telephone headset, and a computer and accessories,” judges wrote in their decision.
The complaint, originally filed in December 2020, cited a provision of state labor code that requires employers to reimburse workers for expenses “incurred by the employee in direct consequence of the discharge of his or her duties.”
The complaint, which was amended in 2021, went to trial in March 2022. The next month, a judge ruled in favor of IBM, which had argued that the government’s public health order was the sole reason for the company’s work-from-home requirements, so it should not be responsible for the expenses.
The appellate court disagreed, however.
“It may be true that the Governor’s March 2020 order was the ‘but-for’ cause of certain work-from-home expenses, but nothing in the statutory language can be read to exempt such expenses from the reimbursement obligation,” judges wrote.
IBM is among dozens of companies that have been sued for work-from-home reimbursements, along with the likes of Oracle and Bank of America.
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MEXICO CITY (AP) — Mexico’s Labor Department issued new rules Friday requiring employers to pay for internet and provide ergonomic chairs for employees working from home.
The new rules also mandate a “right to disconnect” for employees who work at least 40% of their time from remote locations. Remote workers often complain that, because they are constantly reachable at home, they are also constantly asked to work.
Mexico, like many other countries, saw a big increase in remote working during the coronavirus pandemic in 2020 and 2021. While office space occupancy is inching back up, remote work seems to be a trend that has caught on.
The trend is so pronounced that some office buildings on bustling downtown boulevards are being converted into apartments, hospitals and stores.
The Labor Department said bosses are responsible for paying for the electricity, printers and other equipment used when working at home. According to the new rules, if an employee’s home isn’t safe, well-lit and well-ventilated, they can’t be forced to work there.
Inspectors can visit a worker’s home, or employees may be asked to take pictures of their home, to prove that it meets labor requirements.
Remote workers cannot be paid less than those who go to an office, and they must have set work hours.
According to the commercial real estate firm Newmark, Mexico City’s office market has shown slight signs of recovery since the pandemic. In a first-quarter 2023 research report, it said the city’s office vacancy rate had declined to 23.4%, from 24.5% one year ago.
As in many parts of the world, some employers have adopted a “mixed” or hybrid model in which workers come into the office only part of the week. The new rules apply only to those who work remotely at least 40% of the week.
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Dear J.T. & Dale: My company has announced that we have to come into the office three days a week. However, my boss has not come in. She’s been working remotely in spite of all the rest of us having to show up to the office. Nobody has discussed this with her but we’re all pretty upset. Can I say something to her? It doesn’t seem fair. — Bianca
J.T.: I agree, it doesn’t seem fair. More importantly, it seems really odd that the manager isn’t explaining herself. I don’t think I would specifically ask her why she isn’t adhering to the rules, but I do think you could email her and tell her that you’re looking forward to seeing her in person and was wondering when would be the next time she’d be in the office. That way you’re putting a positive spin on your inquiry. That might also prompt her to explain why she hasn’t been coming into the office. But, if she doesn’t give an answer, then I think you just have to accept that at the management level maybe she’s been given different criteria than the rest of you. And always remember, you are an at-will employee, which means if you’re not happy with your situation you can go out and find a different job that suits your needs.
DALE: I’m not one of those conspiracy theory people who is always certain there’s something diabolical lurking behind every odd circumstance, but this situation suggests to me some deeper machinations. This is pure conjecture, but here’s an intriguing scenario: Your boss is unwilling to return to in-office work and let upper management know she’s quitting. Upper management then asks her to keep working remotely while she looks for a new job. If this scenario plays out, then perhaps you can put yourself in a position to advance. There’s no downside, as you should be implementing these career progression strategies anyway: increase visibility by volunteering for teams/initiatives involved in company issues beyond your department; get an executive mentor inside the company; try to get assignments on critical projects; and, all the while, be making an informal study of who gets promoted in the company and how. In other words, change is coming; change first.
Best of career resources
J.T.: It’s time for our review of useful career resources and this time it’s a book that Dale brought to my attention: “Summer Camp Jobs USA: Find Your Job, Get Your Job, Love Your Job” by Michael Pastore. The first surprises are the numbers involved: There are more than 16,000 camps serving 14 million campers, and get this, an estimated 1.5 million staff members. By the way, when I think of summer camp, I think of spending days or weeks at camp, but Pastore reports that 7,000 of the 16,000 summer camps are “day camps,” rather than sleepover ones.
DALE: If you or your favorite teen might want to be one of the 1.5 million staffers, now is the time to apply — this is their hiring season. The book details 10 “classic methods” for a job search along with a “Super-List” of 20 websites and search engines. For instance, there’s a site for the American Camp Association (acacamps.org) which has a jobs center where you can sign up for email alerts when new jobs are posted. But Pastore points out that only about 20% of camps are members of the ACA, so there are plenty of other places to search.
J.T.: I liked how accessible the information is, something that any inexperienced job searcher could really learn from. A teenager following the advice in the book could get experience with a number of job search sites and tools, as well as practical advice on topics like making a first impression and how to prepare for an interview.
DALE: Yes, while much of the book’s advice is specific to summer camps (like the chapter on taking Red Cross classes and other camp relevant training), I kept thinking what a great growth experience the book’s process would be for any young person — it could become an early inflection point in that person’s career.
Jeanine “J.T.” Tanner O’Donnell is a career coach and the founder of the leading career site www.workitdaily.com. Dale Dauten’s latest book is “Experiments Never Fail: A Guide for the Bored, Unappreciated and Underpaid.” Please visit them at jtanddale.com, where you can send questions via email, or write to them in care of King Features Syndicate, 628 Virginia Dr., Orlando, FL 32803.
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Four Rules for Better Workouts While Traveling, Because Sometimes the Hotel Gym Isn’t Cutting It GQ
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It has been three years since workers started telecommuting in vast numbers, but state tax laws still haven’t adapted to the new remote-work paradigm and individual taxpayers are paying the price with exasperating state tax-filing procedures.
Many taxpayers who work remotely in a different state than their employer’s must prepare multiple state 2022 tax returns and account for precisely how many days they worked in the company office versus locales in other states—whether at home, at a vacation house, at the in-laws, or elsewhere.
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About 10 days out from the launch of mobile sports betting in Massachusetts, a new topic has zoomed up the Gaming Commission’s priority list as a result of what the chairwoman called “quite a bit of written commentary and also phoned-in commentary” from industry players.
The commission held a roundtable discussion Monday to learn more about third-party affiliate marketing, an arrangement in which a company pays content websites and publishers to drive customers to its product, and how sports betting regulations it has either finalized or is working on would limit the practice in Massachusetts. After hearing from a panel made up mostly of representatives for betting companies and their marketing affiliates, regulators resolved to expedite the topic to a potential vote at their meeting Wednesday.
“We learned that our regulation might be raising issues that we weren’t aware of, and whenever we learn that there might be either unexpected consequences or at least questions, we want to hear from the stakeholders who can best explain it to us,” Chairwoman Cathy Judd-Stein said. “At a later time, we’ll look at the regulations and decide if we want to make any changes.”
The advertising regulations that the Gaming Commission promulgated on an emergency basis last month do not allow sports betting companies to enter into revenue sharing or cost-per-acquisition agreements with third-party marketing affiliates if the compensation is based on the number of people who actually sign up for an account or based on the number or amount of wagers placed because of those advertisements. The agreements would be allowed if the advertiser were paid based on the number of visits to the operator’s website.
Examples of affiliate marketing in the sports betting world include websites like Action Network, which provides sports betting-related content and is paid to promote the legal sportsbooks it partners with. Local examples include Play Massachusetts and Bet Massachusetts, which have reported on the launch of legal betting here and guide bettors to legal offerings in the Bay State.
Jeff Ifrah, a Washington, D.C. lawyer who represents three affiliate marketing media companies that met with the commission Monday, said that his clients “are being discouraged from investing in Massachusetts” because they are being told by operators that they will not be compensated on any basis for the bettors they steer towards the legal and licensed sportsbooks.
“We can’t afford to eliminate the affiliates who are responsible for driving 30% of these consumers to operators, because those consumers are going to be the ones who are going to be entertained on the various operator sites and generate the taxes that Massachusetts needs and scale the business and take away market share from the offshore industry, which was all part of the goal of legalizing,” Ifrah said. “So what we’d like to see is a more relaxed approach which is more consistent with the majority of states. … We’d like to keep Massachusetts in line with what the other states are doing because we think that’s really the recipe for success.”
On Wednesday, the Gaming Commission is expected to consider its options. The possibilities include maintaining the prohibition on most affiliate marketing, allowing the more common cost-per-acquisition (CPA) arrangements only while prohibiting revenue-sharing deals in the affiliate marketing space, and requiring marketing affiliates to seek a license from the commission.
The affiliate marketers on Monday framed their industry as a way for sports betting companies to be connected to people who have specifically sought out sports betting information and said that restricting that kind of arrangement would lead to more of the mass saturation advertising approach that annoys consumers and can lead to greater scrutiny from regulators.
When someone searches for reviews of new laptops, marketers know that the person is probably looking to buy a new computer. Search engines can then point the person to a review site, many of which are compensated for connecting customers to particular retailers or brands. Max Bichsel, vice president of GDC America, described affiliate marketing as “meeting people where they are” because the user has already taken some kind of action to show their interest, like googling for a specific topic.
“Someone who has a sore throat, Google searching something for sore throat, it makes sense to market a particular cough medicine or have some other remedy to them,” he said. “Similarly, someone’s searching for sportsbooks. We want to make sure that they find the best sportsbooks — that DraftKings and FanDuel, the MGM, and the Caesars — not an offshore operator that is not protective of the customer, not regulated by the MGC and not recognized as a good actor in our industry.”
Matt Volk, chief operating officer at NESN, told the Gaming Commission that the regional sports network that features sports betting content throughout Boston Bruins and Boston Red Sox games, thinks the “CPA bounty” program is “an appropriate approach and kind of a standard business practice in the sports betting industry” because it is structured to attract people of legal betting age and compensates the marketer for successfully luring someone into the legal and taxed betting arena.
Volk said that the regulations as put forward by the commission “would have the unintended consequence of resulting in more saturation marketing, you know, the type of environment that many want to avoid.”
The Gaming Commission plans to launch mobile sports betting, which accounts for as much as 85 to 95% of the legal betting market in other states, on March 10. The operators and marketing affiliates at Monday’s roundtable said the sooner the commission irons out its approach to the issue, the better.
“The anticipation for March 10 will grow over the next couple days and especially through the weekend, and consumers will start searching and making queries for what’s available, what’s not. So it sounds like this week would be very helpful for us because there is a function of consumers and patrons registering for an account before the market opens, and these pre-registration times are usually the leading eight to 10 days before the market opens,” Bichsel said. “So that would be toward the end of this week when we start to see those volumes of search queries start to ratchet up and we want to make sure that we capture those patrons and consumers effectively.”
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We all remember where we were when the towers fell, when Diana was in Paris, and also when GDPR was put in place. It was May 25th 2018. Businesses rushed into meetings all over the world to discuss the EU’s latest regulation as it was rolled out. Bloggers panicked. Suddenly every user was asked at the gate of any website if they can, in various methods of longwinded-ness, use your cookies and personal data that may or may not be personal. It seemed a bit daunting at the time. “We’ve to ask every single user permission? Every time?” And soon it became nothing. A slight nuisance to users. CCPA is about to be another one.
But the GDPR is an important regulation. One that was designed to protect users, should they want it. And in an argument about big companies “stealing” and using personal data in unethical ways, it’s a topic that comes up often.
As explained by the official GDPR legal text: “1. This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data.
“2. This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data.
“3. The free movement of personal data within the Union shall be neither restricted nor prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data.”
So, with the news that the US Government is looking very closely at this text and are close to launching their own version, named the California Consumer Privacy Act (or CCPA), we’re asking, what will brands and businesses have to do to adhere, and how will it affect performance marketers.
What does the CCPA entail?
In order to get more information on the CCPA, we watched a live event hosted by Performance Marketing Association, featuring PMA Executive Director and Davis and Gilbert LLP partner and attorney, Gary Kibel discussing the changes.
Gary said: “GDPR is very different from the laws in the United States, in that GDPR is very much an opt-in approach. In GDPR World, if you’re processing the personal data of someone, you need to have a legal basis to do so.”
“Looking at the laws in the US, we’re mostly an opt-out world, which is very good but it’s a very different approach. So an important takeaway for anyone listening to this is: say you’ve complied with GDPR, you can’t just slap that over here in the US and say ‘Hey now I’m in compliance’ because it’s a very different approach with different requirements.”
So, what are these different requirements? Well, to sum up, we have a checklist of requirements for the CCPA.
- Publish a Privacy Policy that outlines how you are complying with CCPA rules and update it at least every 12 months.
- Inform users of how you use their personal data.
- Maintain a data inventory to track data processing history.
- Alert the user before or at the point of data collection, which would be those “Accept” and “Reject” buttons at the entrance of every website.
- Give users the right to access their data
- Explain how users can contact businesses to request to delete their personal data as part of the Right to Be Forgotten
- Outline the users’ rights under the CCPA
- Create a Do Not Sell My Personal Information page if you do sell personal information
Differences between the CCPA and the EU’s GDPR include the requirement to hire a Data Protection Officer to handle all of these regulations, creating a GDPR diary or Data Register, constant evaluation, for instance when using a new technology or tracking location or behaviour of new users, an instant report system in place for breaches, and avoiding pre-ticked boxes.
How will this affect performance marketers?
Gary said: “By the end of 2023 there will be five states, with comprehensive consumer privacy laws. … California has a law in effect and Virginia has a law in effect. Starting July 1, Colorado and Connecticut’s laws will take effect. And starting at the end of the year, Utah’s laws will take effect. So we have five different states, and the challenge is that those five laws don’t line up perfectly.”
So, what means is that performance marketers should start doing some research. At least the US isn’t going to deal with a sudden and impactful regulation that must be adhered to in one day, but there is time to get your ducks in a row as the different laws come into effect.
And you can bet this won’t be the last of them, either. As data becomes more valuable than gold and third party cookies get replaced, we see a lot of regulation changes in the future.
If you are interested in more affiliate and social media marketing insights, take a look at our blog for all the latest news and advice. Or for a more personalised approach, book a free call with a member of our team.
Or, for the very best advice from industry peers, register to gain access to our Amplify Action Day. Taking place in January 2023 doesn’t mean you’ve missed it. Amplify aims to bring you the latest affiliate, performance, and partner marketing insights from across the globe and it’s all available to stream from our website.
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