COMPLEX TECH: The developer builds of Microsoft Edge built on Chromium are getting interesting

Microsoft Edge on Chromium

Microsoft Edge on Chromium

It’s been a long time since I’ve posted any tech-related items. I was just using a newer browser I’ve been testing out and thought some of you might be interested in it. Microsoft is rebuilding their Edge browser with the open-sourced chromium browser engine. Google’s Chrome uses the same rendering engine. But I distrust Google (mightily) and have decided to move away from as many of Google’s services as possible (for example, I have stopped using gmail as a backup archive and email aggregator for my personal emails, switching to outlook.com instead). So that leaves the current Edge version in Windows 10 (okay), or Firefox (better with privacy but it continues to have erratic bugs), or all the other fringe browsers out there.

So, instead, I’m looking at the developer versions of Edge on chromium. You can download versions here. The beta channel will be the most stable, but it isn’t active yet. That leaves the weekly update developer channel or the “canary” version that gets daily builds. I decided that the canary channel was too wild west even for me, so I’m running the weekly update version. Given that it isn’t even the beta channel version, it’s surprisingly stable. Features are being added almost every week, in addition to the squashing of bugs. Sites render well. I may move to it as my full-time browser when it comes out of its developer/beta state.

Edge on chromium is far enough along, that it is now ready for enterprise evaluation, as mentioned by Windows Central.

Friends don’t let friends do Google.

In Newirth v. Aegis Senior Communities the Ninth Circuit addresses the federal standard for waiver of the righ to compel arbitration

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I haven’t seen this federal arbitration issue pop up too often, so it stands out when it does. In Newirth v. Aegis Senior Communities (9th Cir. July 24, 2019), the Ninth Circuit applied the federal waiver standard when reviewing the District Court’s denial of a motion to compel arbitration.

The Ninth Circuit reaffirmed prior Ninth Circuit precedent, holding that, under federal law, a party seeking to prove that the right to compel arbitration has been waived must carry the burden of showing: (1) knowledge of an existing right to compel arbitration; (2) intentional acts inconsistent with that right; and (3) prejudice to the person opposing arbitration from the inconsistent behavior. Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694 (9th Cir. 1986). The Court held that because defendant Aegis was aware of its right to compel arbitration, but made a choice not to do so in order to take advantage of the judicial forum, and because the plaintiffs were prejudiced by incurring costs in defending against a motion to dismiss, the district court was well within its right to conclude that Aegis waived the right to arbitrate.

The Court reached this conclusion despite noting that waiver of a contractual right to arbitration is not favored. Aegis didn’t help its position by filing a motion to compel arbitration and then withdrawing it to, instead, file a motion to dismiss. Oops.

Nuts and bolts...

For the few interested in these sorts of things, the site template theme that I had been using for quite a while was deprecated, no longer receiving support or updates. While I put off moving to a new theme for a while, it had to happen. Unfortunately, there was no way to fully configure a new theme to match all the customizing I had done in the old theme (things like custom css controls specific to the them because they address unique labels). The only option was to take a lot of notes about style settings and then jump in with both feet. I managed to get things fairly close, even making some changes I’ve wanted to make for some time but could not because they weren’t supported in the old theme. I still have some work to do to add a few missing things, but the content is basically all there. Anyhow, just wanted to explain what motivated some of the changes (as opposed to sheer boredom with the appearance).

The Ninth Circuit is interested in learning whether the California Supreme Court thinks Dynamex applies retroactively

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Here’s a tiny little nugget of interest. Today, in Vazquez v. Jan-Pro Franchising International, Inc. (9th Cir. July 22, 2019), the Ninth Circuit issued an Order granting a Petition for Panel Rehearing. That’s not the interesting part. The stated plan to certify a question to the California Supreme Court is, however, interesting:

The opinion in the above-captioned matter filed on May 2, 2019, and published at 923 F.3d 575, is WITHDRAWN. A revised disposition and an order certifying to the California Supreme Court the question of whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively will be filed in due course.

Order, at 2. Do you feel like it never stops? That there is never a moment when you can say, “This is the wage and hour law of California.”? I do.

Battle Bot Injury Lawyers?

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So I’m driving in Las Vegas today, and I see this billboard off the freeway. The sign was slightly obscured by a closer pole, and, at first glance, I thought it said “Battle Bot Injury Lawyers.” That would be so spectacular. “Destructor smashes the treads on my bot Deep-Fried-Shreddar Cheese, and I want to sue!” I’d specialize in that.

Turns out that it was Battle BORN Injury Attorneys. Dang it!

Moon & Yang has launched the initial portions of its new website

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Moon & Yang, APC has a “soft” launch of it’s new website well underway. There are some bugs to sort out, but it’s slowly getting there (slower, at times, than I would like, as the frustrated e-mails to the development team will attest). I will be co-managing the firm’s blog on the website.

McCleery v. Allstate Ins. Co. affirms the denial of class certification in a complicated, multi-party suit alleging independent contractor misclassification

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I think it is not a stretch to opine that independent contractor misclassification is, by far, the easiest misclassification theory to pursue on a classwide basis (as compared to, for example, cases about the administrative exemption for store managers). In McCleery v. Allstate Ins. Co. (July 15, 2019), the Court of Appeal (Second Appellate District, Division One), in an opinion issued following a grant of rehearing for the second appeal in the matter, we see why there are limits to what is possible even in the comparatively straightforward arena of independent contractor misclassification. The fact summary suggests that this was too big a bite:

Property inspectors Timothy McCleery, Yvonne Beckner, Terry Quimby and April Boyles Jackson filed this action on behalf of themselves and similarly situated persons, alleging defendants Allstate Insurance Company and Farmers Group, insurers for whom the plaintiffs provided property inspection services, and CIS Group LLC/North American Compass Insurance Services Group (CIS), Advanced Field Services, Inc. (AFS), and Capital Personnel Services, Inc. (PMG), service companies contracting to provide inspection services, concocted a scheme to insulate themselves from labor laws by nominally employing plaintiffs as independent contractors while retaining control over all aspects of their work. Plaintiffs purport to represent a putative class of approximately 1,550 property inspectors in California.

Slip op., at 3-4. At the first go-round, the trial court denied certification, summarily rejected a statistical sampling plan, and concluded that individualized determinations were required for each class members. The Court of Appeal reversed, directing the trial court to consider whether proposed sampling and statistical methods could render some or all of the individualized issues manageable. After additional briefing and an extensive survey, the trial agreed that the survey was carefully crafted to maximize accuracy but still failed to address key individual issues:

However, the court found that plaintiffs’ statistical sampling alone did not render their claims manageable. It found that Dr. Krosnick’s survey results failed to specify for which insurers inspections were performed, or to explain whether the inspectors’ failure to take meal or rest breaks was due to preference or to the exigencies of the job. Also, the survey’s anonymity foreclosed the defendants from cross-examining witnesses to verify responses or test them for accuracy or bias.

Slip op., at 17. The trial court again denied certification and the plaintiffs again appealed.

While several issues were of concern to the Court, the inability of the defendants to examine any survey respondents (who were kept anonymous from the survey expert) was viewed as an impediment to the defendants’ ability to cross-examine the actual class members who participated in the survey:

In fact, plaintiffs expressly admit they intend to answer the ultimate question in this case based solely on expert testimony—testimony founded on multiple hearsay that defendants could never challenge. As Dr. Krosnick declared, “ Respondents are not testifying witnesses. Instead, . . . . [i]t is the expert who will offer opinions . . . , and the expert can be cross-examined.” But “[a]lthough an expert ‘may rely on inadmissible hearsay in forming his or her opinion [citation], and may state on direct examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible.’ ” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1525.)

Slip op., at 24-25. The plan to rely, almost exclusively according to the Court, on an anonymous, double-blind survey to prove liability was viewed as a bridge too far, no matter how scientifically the survey was crafted. The Court, citing Duran and Brinker, concluded that the trial court acted within its discretion when denying certification.

I admit to having some sympathy, as it is my experience that the similar insurance, lender, and real estate property inspection industries are carefully constructed in an attempt to support the notion that the end companies requesting the inspections and setting very detailed parameters for how those inspections are to occur are not employers of the people out performing those inspections for them. What this opinion will have the tendency to do is insulate the biggest companies because of the complex hairball of crossing middle-tier vendors they have created, while directing attention to the smaller middle-tier vendors that act as the go-betweens for the insurance, lender, and real estate companies.

Happy Fourth of July!

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Today I am thankful that I can say what I want, provide for my family, and succeed by my own hand in the greatest nation in the history of this Earth.

…and if you find this image triggering, then this holiday is not meant for you.

Hot Tip: Read the Daily Journal tomorrow...

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I have it on good authority from an inside source that some wage and hour guru will express pithy commentary in the Daily Journal’s July 2, 2019 edition.

UPDATE: Turns out my sources were correct. Be sure to read the column Where Troester Stops Not Even Troester Knows.

Majority of California Supreme Court Justices conclude that the California Pay Scale Manual issued by CalHR controls over Wage Orders for public employees

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Some wage and hour decisions have broad implications. Others, no so much. Here, in Stoetzl v. Department of Human Resources (July 1, 2019), the California Supreme Court issued a decision that falls decidedly into the later category. Stoetzl concerns a trial on the issue of unpaid wages for what the Court calls “entry-exit walk time” and “duty-integrated walk time.” Sounds like we are about to get a decision about a California equivalent to preliminary and post-liminary time, right? Not so much. Stoetzl is really about whether the relevant Wage Order (Wage Order 4) or the California Pay Scale Manual issued by CalHR (read about CalHR here) controls pay obligations for “entry-exit walk time” and “duty-integrated walk time” for represented and unrepresented state employees working in prisons.

Don’t get the wrong idea. Stoetzl might impact lots of employees; California has a metric <BLEEP> ton of employees. But that’s really the only group impacted by this decision, since the tension arises as a result of the conflict between the Pay Scale Manual’s express adoption of FLSA provisions and the Wage Order’s use of California’s differing and more protective standards. On top of all that, the represented state employees are bound by a collective bargaining agreement that controls certain pay obligations.

If you want to find something of broader note in Stoetzl, it again demonstrates that less protective FLSA provisions do no displace more protective California laws and regulations unless there is an express statement of an intent to do so. Here, in this 5-2 decision, a majority of the Court concluded that the Legislature properly empowered CalHR to define state employee pay provisions, and CalHR chose to expressly adopt FLSA rules that governed such things as walk time.

The minority opinion, written by Justice Liu, with Justice Cuellar concurring, found particular fault with the majority’s discussion of the minimum wage pay issue for the unrepresented class of employees.