Tag Archives: California

Texting Advertisements or Employment Offers May Violate TCPA

By: Sheila Raftery Wiggins

Potential drivers filed a class action suit against a well-known ride hailing firm in federal court (N.D. Ill.) alleging that text messages sent to potential drivers violate the Telephone Consumer Protection Act (“TCPA”). A sample text states: “You’re invited to drive [insert name]. No schedule. No boss. Sign up now and get a $500 bonus,” according to the recently-filed complaint. The case seeks $500 or $1,500 in damages for each text message which violates the TCPA.

Similar claims have been filed against this ride hailing firm in other federal courts, including in California. The firm has had some success defeating similar cases.

Generally, text message advertising services require “prior express written consent” from recipients, and employment solicitations require “express consent” which need not be in writing.

LESSON: A text campaign for employment should explicitly state that it is an employment solicitation.

Sheila Raftery Wiggins, of the Newark office, handles matters involving complex commercial disputes, insurance defense, coverage disputes, financial fraud, and attorney ethics.

More States Enact Laws: Franchisors Are Not “Joint Employers”

By: Sheila Raftery Wiggins

Eight states passed legislation prohibiting a franchisor from being considered an employer or co-employer of franchisee employees, including: Texas, Louisiana, Tennessee, Wisconsin, Michigan, Indiana, Utah and Georgia. Similar legislative efforts were introduced in California, Colorado, Massachusetts, Oklahoma, Pennsylvania, Vermont and Virginia.

On May 3, 2016, Georgia is the most recent state to enact such a law. Georgia’s “Protecting Small Businesses Act” amends Georgia’s Labor and Industrial Relations Code to provide that neither a franchisee nor a franchisee’s employee is considered an employee of a franchisor for “any purpose.” The Act is effective on January 1, 2017. Like other states’ new laws, the Act responds to the dramatic 2015 ruling of the National Labor Relations Board in NLRB v. Browning-Ferris Industries, which impacts when a franchisor could be found to be a joint employer of its franchisee’s employees.

Sheila Raftery Wiggins, of the Newark office, handles matters involving complex commercial disputes, insurance defense, coverage disputes, financial fraud, and attorney ethics.

E-commerce: Clickwrap Versus Browsewrap Agreement

By: Sheila Raftery Wiggins

The goal of an e-commerce contract is whether the “reasonable” consumer is aware of the e-commerce contract terms. A browsewrap agreement uses hyperlinks to the contract terms and conditions. A clickwrap agreement requires users to scroll through the terms before they are required to agree to them. The California state appeals court recently held that a browsewrap agreement for an online florist is not enforceable because the hyperlinks and overall design of the website would not have put a reasonably prudent Internet user on notice of the terms of use. LESSON: Design your website to give the consumer notice of the contract terms so the terms are enforceable.

Sheila Raftery Wiggins, of the Newark office, handles matters involving complex commercial disputes, insurance defense, coverage disputes, financial fraud, and attorney ethics.