News

Mountain View reconsiders Google land purchase

$28M deal with city goes back to drawing board

Mountain View leaders are considering renegotiating a $28 million deal to purchase a North Bayshore office property from Google that is needed for traffic improvements. The reworked deal is one in a series of real estate proposals that the City Council considered in closed session at its meeting on Tuesday, Sept. 3.

Under the original deal, the city would have acquired 1.75 acres of land that would be used to reroute Plymouth Way, curving the street slightly to the north so that it created a new four-way intersection across Shoreline Boulevard to Space Park Way. When finished, city traffic engineers believed the new intersection would greatly speed up traffic along the congested Shoreline corridor.

At the time, opponents derided the land purchase as the city essentially paying Google to fix the company's own traffic problems. Building that newly aligned roadway would require demolishing multiple offices that Google was loathe to give up, and city officials say they had to offer the company $28 million as the fair market price for the property.

Since then, all parties have reportedly agreed to rework the deal. The new proposal calls for Mountain View to purchase a smaller right-of-way. Google would keep ownership of most of the land, which would reportedly help the company prepare its master plan for developing the area. City officials say the revised plan would significantly reduce the purchase costs.

Mountain View city attorney Krishan Chopra said there was no reportable action from the closed-session meeting.

In a separate closed-session item, city leaders considered the opposite action, selling a public right-of-way to a developer in the Shoreline West neighborhood. In that deal, Mountain View would sell a small cul-de-sac called Gamel Way to the Los Altos-based developer, the De Nardi Group. The developer plans to demolish 102 apartments along Gamel Way in order to build for-sale condominiums. If the city agreed to sell Gamel Way, the De Nardi Group would be able to combine it with the surrounding parcels to build a larger 118-unit housing project.

In a third agenda item regarding land, the City Council reviewed an offer from a downtown property owner to subdivide and sell a parcel to create a new pocket park. Under the proposal, the owners of 711 Calderon Ave. said they would split their property in half and move a historic house to one side of the site. When done, the site at the corner of Church Street and Calderon would have a vacant 18,000-square-foot space suitable for a small park.

At this time, city officials were being asked for general interest in the proposal, said Dennis Dremman, city real estate administrator.

What is community worth to you?
Support local journalism.

Comments

11 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 7, 2019 at 11:14 am

The Business Man is a registered user.

HERE WE GO AGAIN.

This was part of the grand SCAM played on the City of Mountain View citizens by the City Councils and Google regarding promises made and were never to be intended to be performed.

THe North Whiseman project is nothing but Vaporware like the Mattell Intellivision Computer System, it was never produced.

The City Council gave much more gifts to Google than what Google ever provided this City.

When AB5 gets signed, Google will cancel all office projects in California, and the housing ones. This is because they will have to quit using IT Contractors which comprise at least 50% of the Google workers in California. That is why Google refused to provide how many employees they had regarding the City of Mountain View.

And IT Contractors are not allowed to work for more than 12 months in the past, thus they could not sign for a 12 month lease for apartments. Now they will be limited to less than 6 months. So they cannot sign a 6 month lease. So this will greatly diminish the housing demand in Mountain View as well. Unless all landlords will be FORCED to accept nothing but month-to-month agreements for those not intending to stay in Mountain View after their work contracts are closed.

Also I can only imagine that as much as 75% of the apartments in Mountain view are older than 2005. Thus AB 1482 will cap the rent increases as well.

Talk about a perfect storm about to hit Mountain View.


16 people like this
Posted by Locust
a resident of Blossom Valley
on Sep 8, 2019 at 6:32 am

Google operatives and City officials are competing swarms of locust.


14 people like this
Posted by Billy Bob
a resident of Bailey Park
on Sep 8, 2019 at 10:31 am

We have it so good here are you kidding me rvs everywhere human waste in the streets crime rampant .A City Council that has turned its back on its citizens traffic jams everywhere high cost of living low quality of life . And we have it so good really


4 people like this
Posted by left for cheaper
a resident of Shoreline West
on Sep 8, 2019 at 10:53 am

left for cheaper is a registered user.

TBM — google contractors are allowed up to two years on a contract and then they must wait six months before starting a new contract.

Where did you get your information? I’ve easily signed 12-month leases in MV...


1 person likes this
Posted by oldSecurityGuy
a resident of another community
on Sep 8, 2019 at 12:43 pm

"The Business Man", I don't think your prediction about AB5 is correct. Years ago, a lot of tech companies did use contractors who were paid under a 1099. Today, most of the "temps" are actually working for outsourcing companies and have no contractual relationship with the tech companies to whom they are delivering their work. Now whether those outsourcing companies (Adecco, Accenture, etc) are treating those workers as employees is still a good question.

My reading of AB5 is that it is clearly targeted at the gig economy, and I agree that companies like Uber, Doordash etc sure seem to be exploiting those workers, and not through any corporate intermediary.


1 person likes this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 8, 2019 at 12:57 pm

The Business Man is a registered user.

In response to left for cheaper you said:

“TBM — google contractors are allowed up to two years on a contract and then they must wait six months before starting a new contract.

Where did you get your information? I’ve easily signed 12-month leases in MV...”

Under the IRS rules no contractor can work for the same client for more than 12 months. The information is found here(Web Link):

Fact Sheet 13: Employment Relationship Under the Fair Labor Standards Act (FLSA)

(Revised July 2008) (PDF)

This fact sheet provides general information concerning the meaning of "employment relationship" and the significance of that determination in applying provisions of the FLSA.

Characteristics

An employment relationship under the FLSA must be distinguished from a strictly contractual one. Such a relationship must exist for any provision of the FLSA to apply to any person engaged in work which may otherwise be subject to the Act. In the application of the FLSA an employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves. The employer-employee relationship under the FLSA is tested by "economic reality" rather than "technical concepts." It is not determined by the common law standards relating to master and servant.

The U.S. Supreme Court has on a number of occasions indicated that there is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA. The Court has held that it is the total activity or situation which controls. Among the factors which the Court has considered significant are:

First, THE EXTENT TO WHICH THE SERVICES RENDERED ARE AN INTEGRAL PART OF THE PRINCIPAL'S BUSINESS. Second, THE PERMANENCY OF THE RELATIONSHIP. Third, THE AMOUNT OF THE ALLEGED CONTRACTOR'S INVESTMENT IN FACILITIES AND EQUIPMENT. Fourth, THE NATURE AND DEGREE OF CONTROL BY THE PRINCIPAL. Fifth, THE ALLEGED CONTRACTOR'S OPPORTUNITIES FOR PROFIT AND LOSS., Sixth, THE AMOUNT OF INITIATIVE, JUDGMENT, OR FORESIGHT IN OPEN MARKET COMPETITION WITH OTHERS REQUIRED FOR THE SUCCESS OF THE CLAIMED INDEPENDENT CONTRACTOR. Seventh, THE DEGREE OF INDEPENDENT BUSINESS ORGANIZATION AND OPERATION.

There are certain factors which are immaterial in determining whether there is an employment relationship. Such facts as the place where work is performed, the absence of a formal employment agreement, or whether an alleged independent contractor is licensed by State/local government are not considered to have a bearing on determinations as to whether there is an employment relationship. Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status.”

In effect, anyone working for longer than 12 Months establishes a SIGNIFICANT PERMENANCE of the working relationship. ALL IT CONTRACTING groups I worked for in California clearly state they cannot staff a contract position longer than 12 months. WHY? Because a contractor cannot be staffed more than 1 accounting cycle (12 months) and be defined as a “Temporary” position. It by default under all regulations establishes a “Permanence” of the work. This was discussed heavily when I was a student at San Jose State studying Human Resources where I have a Certified College Bachelor’s Degree. The fact that a company has not been caught in this violation of the regulations does not mean it was correct.

The fact is under the Dynamex case discussed the “Permanence” factor. It clearly stated:

“12 In addition to the control of details factor, the other five factors included in the six-factor test are: “(1) the alleged employee’s opportunity for profit or loss depending on his managerial skill; (2) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; (3) whether the service rendered requires a special skill; (4) THE DEGREE OF PERMANENCE OF THE WORKING RELATIONSHIP; and (5) whether the service rendered is an integral part of the alleged employer’s business.”

Simply put, the fact that Google was doing what you state is in fact a REAL error of compliance with Federal and state Labor Laws.

THe fact is you do not demonstrate that this was legal in the first place.


7 people like this
Posted by Old Enough to Know Better
a resident of Rex Manor
on Sep 8, 2019 at 1:56 pm

@oldSecurityGuy

"Years ago, a lot of tech companies did use contractors who were paid under a 1099."

Actually, in my experience starting in the late 1970s, virtually all the high-tech workers were either direct-hire or worked for what we called "job shops" as regular employees of the job shop. The job shop took a percentage on top of the negotiated rate of pay from the client companies.

Over the decades of changing jobs every few years and thus seeing many companies hiring practices, I can say that the first time I heard of anyone in a technology position being required to work as a non-employee reported in a 1099 was about 15 years ago. When I heard about this, I talked to everyone I knew in tech and this was exceedingly rare.

For the past 5 years this 1099 non-employee employment has become nearly universal for new "hires" not considered "critical hires" and even sometimes they end up being pressured to agree. Every startup I have looked at for employment in recent years were ONLY hiring "independent contractors".

Basically, these tech companies are now cutting out the "job shop" middlemen that provided benefits to the employees. They are doing this by FALSELY pretending that people are not "employees" and misidentifying workers as "independent contractors" so they avoid paying for any benefits.

"Today, most of the "temps" are actually working for outsourcing companies"

I can't say what the overall stats are for all companies, but all the tech companies I am familiar with are dodging paying for benefits and while many tech companies still use "job shops", more and more have been calling people "independent contractors" to cheat them of benefits.

"Now whether those outsourcing companies (Adecco, Accenture, etc) are treating those workers as employees is still a good question."

The whole point of those outsourcing companies is to provide full employment status to the workers by charging the client company a fee on top of pay. This provides a good savings to the client companies anyway and makes terminations and short-term projects a lot cheaper than a direct-hire situation does.

High-tech companies have been allowed by the state negligence to cut out all benefits costs by falsely identifying employees as "contractors" and the state has been doing nothing to stop it.


11 people like this
Posted by Old Enough to Know Better
a resident of Rex Manor
on Sep 8, 2019 at 2:03 pm

@ left for cheaper

"TBM — google contractors are allowed up to two years on a contract and then they must wait six months before starting a new contract."

That's weird, there is a rental house next door to me where we have seen a long series of rotating Google "contractors" every year. We see a different set of 4-5 Millenials moving in for about 12 months and then moving out and a new set moves in. This has been going on for many years now.


2 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 8, 2019 at 4:20 pm

The Business Man is a registered user.

I forgot to mention a key factor.

It doesn't matter if Google hired a company to supply the contractors working on site.

The supreme court stated:

"There are certain factors which are immaterial in determining whether there is an employment relationship. Such facts as the place where work is performed, the absence of a formal employment agreement, or whether an alleged independent contractor is licensed by State/local government are not considered to have a bearing on determinations as to whether there is an employment relationship. Additionally, THE SUPREME COURT HAS HELD THAT THE TIME OR MODE OF PAY DOES NOT CONTROL THE DETERMINATION OF EMPLOYEE STATUS.”

The only determiniant factor is if the work is done on-site for a particular corporation. THe assigned corporation is liable for the misclassification. That is because they acted to circumvent the IRS, the CRS, the Social Security and other agencies.

The state basically ignored the violations until the Dynamex case. The Supreme Court forced the state to act.

What is the real threat is directed to all of these "outscourcing" companies are going to be SIGNIFICANTLY restricted in the state from now on. Most likely, they will have to provide a fraction of the business they did in the past, or wind up not operating enough to stay in business.


9 people like this
Posted by left for cheaper
a resident of Shoreline West
on Sep 9, 2019 at 11:59 am

left for cheaper is a registered user.

@TBM I really don’t care what you read it heard, I’m coming up on 18 months in the google chrome GTM team. My coworker Cyrus is, too.

You are talking out of your asshole, as usual


2 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 9, 2019 at 1:21 pm

The Business Man is a registered user.

Thanks to left for cheaper to provide the information necessary to lay the grounds for a California labor practices investigation. If my information regarding both the fair labor act's are accurate, it will look like Googke will be a target of a labor investigation on top of the antitrust one they already are facing.

You can personally attack me as much as you want, but if the state does find illegal labor practices on the part of Google, your claims will be proven wrong.

Good work, by the way the investigation will include using your online I'd to identify you. There is good grounds for the mv voice to disclose your identity. We it is part of an investigation like this


9 people like this
Posted by B Minkin
a resident of Sylvan Park
on Sep 9, 2019 at 2:49 pm

B Minkin is a registered user.

Although the business man has written many baseless things in the past, this is the first I have read where he has made threats toward an individual. That is shameful, mitigated only by the lack of power he would have in carrying out his threat. Only a court order would compel an entity to disclose identity.


3 people like this
Posted by beelia
a resident of North Bayshore
on Sep 9, 2019 at 4:37 pm

beelia is a registered user.

I am not going to make any rude comments - just give some correct information to clear the air.

Until last month, I worked for Google as a temp for two years - four six-month sequential contracts. If I decided to go back as a temp for another job shop, yes, I would have to take a 6 month break. But if I worked for a vendor instead, I could go back in 90 days. I know that is correct information because I got it from the XWS legal division at Google.

But I don't know that I do want to go back to Google. I loved the job, but there aren't many like it, and I might get farther in my career elsewhere.

But I'd prefer a third option. I'd rather work as an independent contractor, because I prefer a higher rate to benefits I don't need. But the CA Supreme Court/Assembly/IRS decision on the definition of "independent contractor" make that impossible now. I'm just an old techie who is hoping for an exemption to AB6 that will fit my role, and that might not ever happen. We shall see.

Since I was treated very well at Google, my situation is different from those folks who are being abused by companies like Uber and Lyft. They should be compensated fairly, and I hope for their sake that AB5 does pass.


2 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 9, 2019 at 5:15 pm

The Business Man is a registered user.

In response to B Minkin you said:

“Although the business man has written many baseless things in the past, this is the first I have read where he has made threats toward an individual.”

What threat? I only said the INVESTIGATORS have the ability to get a court order to disclose the person who made a public statement. There is no privacy protection when someone make public statements. You went on to say:

“That is shameful, mitigated only by the lack of power he would have in carrying out his threat.”

I did not threaten anyone, you just want it to appear that way. I only stated that Google deserved to be investigated because the Dynamex Case applies to IT Contractors. Just look at the ABC tests and you can see why:

“(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and”

Which means that the work product cannot be defined by Google. The Contractor must be free to provide any service they choose as long as the objectives are met. If it has to be done on the equipment that Google uses or owns, then they cannot be free from control. The A test fails.

“(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and”

Given that for example these people are doing work that directly supports the business product of Google, then it is not outside the usual course of the entity’s business. In this case he described the Google GTM group or what it is Google Tag Manager, which is a product of Google. Thus another failure.

“(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.”

This requires the person working on site in fact is running their own business, or that the product they produce can be sold by them after they leave. In effect they can sell Google Tag Management free from control of Google. Obviously they cannot. Another failure.

AB 5 has no exceptions for those working as IT contractors The exceptions are the following:

“(1) A person or organization who is licensed by the Department of Insurance pursuant to Chapter 5 (commencing with Section 1621), Chapter 6 (commencing with Section 1760), or Chapter 8 (commencing with Section 1831) of Part 2 of Division 1 of the Insurance Code.”

NOT an IT Contractor

“(2) A physician and surgeon, dentist, podiatrist, or psychologist psychologist, or veterinarian licensed by the State of California pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, performing professional or medical services provided to or by a health care entity, including an entity organized as a sole proprietorship, partnership, or professional corporation as defined in Section 13401 of the Corporations Code. Nothing in this subdivision shall apply to the employment settings currently or potentially governed by collective bargaining agreements for the licensees identified in this paragraph.”

NOT an IT Contractor

“(3) An individual who holds an active license from the State of California and is practicing one of the following recognized professions: lawyer, architect, engineer, veterinarian, private investigator, or accountant.”

An IT Contractor DOES NOT HAVE ANY ACTIVE LICENSE in the State of California. They have Certifications, but these are not State Licenses, only honoraries bestowed after proving competence in either a technology, software, or practices. Thue NOT an IT Contractor.

“(4) A securities broker-dealer or investment adviser or their agents and representatives that are registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority or licensed by the State of California under Chapter 2 (commencing with Section 25210) or Chapter 3 (commencing with Section 25230) of Division 1 of Part 3 of Title 4 of the Corporations Code.”

NOT an IT Contractor

“(5) A direct sales salesperson as described in Section 650 of the Unemployment Insurance Code, so long as the conditions for exclusion from employment under that section are met.”

NOT an IT Contractor.

“(6) A commercial fisherman working on an American vessel as defined in subparagraph (A) below. “

NOT an IT Contractor

“(c) (1) Subdivision (a) and the holding in Dynamex do not apply to a contract for “professional services” as defined below, and instead the determination of whether the individual is an employee or independent contractor shall be governed by Borello if the hiring entity demonstrates that ALL of the following factors are satisfied:

Professional services are defined as:

“(i)Marketing., (ii)Administrator of human resources. (iii) Travel agent services provided by either of the following:… (iv) Graphic design. (v) Grant writer. (vi) Fine artist. (vii) Services provided by an enrolled agent who is licensed by the United States Department of the Treasury to practice before the Internal Revenue Service pursuant to Part 10 of Subtitle A of Title 31 of the Code of Federal Regulations. (viii) Payment processing agent through an independent sales organization. (ix) Services provided by a still photographer or photojournalist who do not provide license content submissions to the putative employer more than 35 times per year. (x) Services provided by a freelance writer, editor, or newspaper cartoonist who does not provide content submissions to the putative employer more than 35 times per year. (xi) Services provided by a licensed esthetician, licensed electrologist, licensed manicurist, licensed barber, or licensed cosmetologist.

None of which are IT Contractors.

So the Dynamex Case does impact IT Contracting. Thus Google is already in violation od Dynamex and the California Departmet of Labor has no choice but too investigate it.

As far as beelia discussed:

“Until last month, I worked for Google as a temp for two years - four six-month sequential contracts. If I decided to go back as a temp for another job shop, yes, I would have to take a 6 month break. But if I worked for a vendor instead, I could go back in 90 days. I know that is correct information because I got it from the XWS legal division at Google. “

That does not mean they were correct, it only means that is how they thought they could act. The Dynamex Case clearly proves that that practice was not correct, and they just got away with it because the state was not on notice that it had to prevent it until the Dynamex Case was decided.


Like this comment
Posted by LongResident
a resident of another community
on Sep 9, 2019 at 5:20 pm

LongResident is a registered user.

Hmm, the land issue for the parcel across from The Sports Page doesn't have much to do with Vizcaino v. Microsoft .

However, the Business Man is pretty clearly confused. He's tossing the Supreme Court around without being clear whether he means state or Federal or about which case. But Vizcaino v. Microsoft is a precedent decided in the Federal 9th circuit years ago. It had to do with co employment liability and the issue of whether two employers both controlled a worker in a way which made them employees of that employer. The precedent from the Microsoft case and related descendant cases was cited in the recent California Supereme Court decision about Dynamex the delivery service. I did indeed broaden the scope of employment law such that some independent contractors were rendered employees. But it does not force a change of employer when the situaiton is such that the worker is a co employee of two employers at the same time in the same position. TBM is making that up and not citing any decision that supports him. In fact, specifically, the Dynamex decision dealt with converting an independent contractor relationship into one of employer and employee. The ruling has to do with wage and hour requirements, and these would be fully addressed by being an employee of a different employer which might have a contract with the beneficiary company for the labor performed. State law is okay with co employments, just so long as there is an employer employee relationship adhering to state labor law for wages and hours worked.


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 9, 2019 at 5:57 pm

The Business Man is a registered user.

In response to LongResident you mentioned Viozcaino v. Microsoft, but you gave a misleading argument the real case stated: (Web Link)

“Vizcaino v. Microsoft

In beginning its analysis, the court reviewed Microsoft's relationship with its employees. The court noted that Microsoft has a core staff of regular employees, which it supplements "with a pool of individuals to whom it refuses to pay fringe benefits." MICROSOFT CURRENTLY CLASSIFIES THESE WORKERS AS TEMPORARY AGENCY EMPLOYEES, SINCE THEY ARE EMPLOYED THROUGH A MICROSOFT-OWNED AGENCY. Previously, Microsoft had classified the workers as independent contractors or freelancers.

The workers who brought the action worked for Microsoft between 1987 and 1990 as freelancers. ALTHOUGH HIRED TO WORK ON SPECIFIC PROJECTS, SEVEN OF THE EIGHT WORKERS HAD WORKED FOR MICROSOFT FOR AT LEAST TWO YEARS. THEY WORKED ON SITE, SHARED THE SAME SUPERVISORS, PERFORMED THE SAME FUNCTIONS, AND WORKED THE SAME CORE HOURS AS THE REGULAR EMPLOYEES. Unlike Microsoft's regular employees, who were paid through the payroll department, these workers were paid through Microsoft's accounts payable department.5 In addition, the workers were told when they were hired that they would not be eligible for benefits and signed agreements which stated they were independent contractors and were responsible for all their own benefits.

IN 1989 AND 1990, THE IRS RECLASSIFIED THE WORKERS AS EMPLOYEES. Thereafter, Microsoft made offers to some of the workers to become regular employees and gave others the option of terminating employment or continuing to work, but in the capacity of employees of the new Microsoftowned employment agency. THOSE INDIVIDUALS WHO BECAME EMPLOYEES OF THE EMPLOYMENT AGENCY CONTINUED WORKING THE SAME HOURS ON THE SAME PROJECTS AND UNDER THE SAME SUPERVISORS AS BEFORE.

Following their reclassification by the IRS, the workers sought certain Microsoft benefits, including those under Microsoft's SPP. The SPP provides that "each employee who is 18 years of age or older and who has been employed for six months shall be eligible to participate in this Plan," and defines "employee" to mean "any common-law employee ... who is on the United States payroll of the employer."

MICROSOFT CONCEDED THAT THE WORKERS WERE GENERALLY COMMON-LAW EMPLOYEES WHO RENDERED PERSONAL SERVICES TO MICROSOFT, BUT DEFENDED THEIR EXCLUSION FROM THE SPP ON THE GROUNDS THAT THEY WERE NOT "ON THE UNITED STATES PAYROLL OF THE EMPLOYER." Microsoft argued that the workers were ineligible because they were paid through the accounts payable department and not through the payroll department.

Rationale. The court first determined that the phrase "on the United States payroll of the employer" was ambiguous. It then looked to the agreements signed by the workers when they were hired and concluded that the waivers of benefit provisions in the agreements were not controlling because they assumed that the workers were independent contractors. THE COURT THEN APPLIED THE RULE OF CONTRA PROFERENTUM, WHICH PROVIDES THAT A DOCUMENT WILL BE INTERPRETED MOST STRONGLY AGAINST ITS DRAFTER, AND CONSTRUED THE AMBIGUITY IN THE SPP AGAINST MICROSOFT. CONSEQUENTLY, THE COURT HELD THAT THE WORKERS WERE ELIGIBLE TO PARTICIPATE UNDER THE TERMS OF THE SPP C THAT THE PLAN MUST BE CONSTRUED AS EXTENDING PARTICIPATION TO ALL PERSONS EMPLOYED BY MICROSOFT AND PAID FROM ITS U.S. ACCOUNTS.

Also at issue in this case was whether the workers were entitled to ESPP benefits. Microsoft argued that the workers were not entitled to participate in the ESPP because the workers (1) had no right to enforce Section 423 of the Code; (2) signed agreements stating that they would receive no benefits; and (3) did not rely on the terms of the ESPP in continuing their employment because the ESPP was never communicated to them. THE COURT DISMISSED MICROSOFT'S ARGUMENTS AND HELD THAT THE WORKERS WERE COVERED BY THE ESPP.

The court found that because Microsoft intended to qualify the ESPP under Section 423, Microsoft intended to make all common-law employees eligible for participation in the ESPP. Section 423 states that the "options are to be granted to all employees of any corporation whose employees are granted any of such options by reasons of their employment by such corporation." FURTHER, THE TERM "EMPLOYEES" IN SECTION 423 REFERS TO COMMON-LAW EMPLOYEES. CONSEQUENTLY, THE COURT HELD THAT THE ESPP, CONSTRUED IN A MANNER CONSISTENT WITH SECTION 423, EXTENDS PARTICIPATION TO ALL COMMON-LAW EMPLOYEES NOT OTHERWISE EXCEPTED UNDER THE PLAN. The plan contained only two exceptions, neither of which applied: (1) employees whose customary employment was 20 hours or less per week and (2) employees whose customary employment was for not more than five months in the calendar year. Thus, the court found that the workers could enforce the ESPP in the same manner as any of Microsoft's other employees.

MOREOVER, THE COURT FOUND THAT NEITHER THE AGREEMENTS THE WORKERS SIGNED WHEN HIRED BY MICROSOFT, NOR THE FACT THAT MICROSOFT DID NOT COMMUNICATE THE TERMS OF THE PLAN TO THE WORKERS, MADE THE WORKERS INELIGIBLE TO PARTICIPATE IN THE ESPP. The court asserted that the agreements the workers signed did not control their employment status, were overridden by Microsoft's incorporation of Section 423 into its ESPP, and were consistent with the workers' participation in the ESPP. FINALLY, THE COURT NOTED THAT MICROSOFT'S PUBLIC PROMULGATION OF THE PLAN WAS ENOUGH TO ESTABLISH THE WORKERS' RELIANCE ON THE ESPP, IF THIS RELIANCE IS EVEN REQUIRED IN THE CONTEXT OF BENEFIT PLANS.”

This case would in effect support the contention that IT Contractors under this case and Dynamex are “Common-law” employees.

Upon investigation, it will be discovered that Google and many other Silicon Valley corporations own either majority stock, or invest in the IT contracting companies they use to find their workers.

Next time read more.


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on Sep 11, 2019 at 8:15 am

The Business Man is a registered user.

Well AB 5 is about to become law

Another issue will be that if you are an employee of a IT contract company, and they have no work for you, you are entitled to the minimum wage of where you live. As long as you are still employed. This business model has artificially lowered the unemployment rates because you are employed but earn no wages

It just looks like the state is about to finally be in compliance with the IRS res regarding this issue.


Sorry, but further commenting on this topic has been closed.

All your news. All in one place. Every day.

Su Hong 2.0? Former waiter reopens Chinese standby under new name in Palo Alto
By Elena Kadvany | 9 comments | 6,000 views

What gives you hope?
By Sherry Listgarten | 9 comments | 2,880 views

Living as Roommates? Not Having Much Sex?
By Chandrama Anderson | 0 comments | 2,857 views

 

Support local families in need

Your contribution to the Holiday Fund will go directly to nonprofits supporting local families and children in need. Last year, Voice readers and the Wakerly, Packard and Hewlett foundations contributed a total of $72,000.

DONATE