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The global law firm, Jones Day, is currently embroiled in a gender and discrimination class action lawsuit brought by former associates against the firm.  The former associates, all of whom are women, allege various instances of discrimination which the firm vigorously denies.  It is alleged in the suit that Jones Day maintained a discriminatory parental leave policy, a gendered pay scale system, and altered female associates’ profile photographs on its website to make them look more attractive.

One of the more novel issues presented in the case is whether, in employment discrimination cases, members of the class should be permitted to join the suit anonymously to prevent public backlash, retaliatory conduct, and reputational harm.

Currently, federal law generally requires plaintiffs in an action to file publicly, which means they must disclose their identities.  This remains the case even in sexual harassment or retaliation cases, because the available legal justifications for filing under a pseudonym are limited to severe cases of physical danger, reputational or psychological harm.  As Jones Day was quick to point this out in its opposition to a Plaintiff’s anonymity request, allowing a plaintiff to proceed under a pseudonym is a “rare dispensation” and must outweigh the fairness to the opposing party.

California is again making waves in the employment community with its new freelance law which took effect on January 1, 2020. The law, Assembly Bill 5 (“AB 5”), imposes several requirements on employers who hire freelancer workers.  While AB 5 has many supporters, including gig economy workers and Democratic lawmakers, it also has detractors including Uber, Lyft, and — somewhat surprisingly — some of the people the law is designed to protect.  Although the true effects this law will have are unclear, AB 5 demonstrates how states are grappling with protecting the rights of independent contractors in an ever evolving and expanding “gig economy.”

AB 5 creates a rebuttable presumption that a person is an employee rather than an independent contractor and places the burden on the employer to prove that a worker is an independent contractor.  The employer must do this by satisfying a three-part test. First, the employer must prove that the person “is free from the control and direction” usually associated with employment.  Second, the Employer must show that the “person performs work that is outside the usual course of the hiring entity’s business.”  Third, the Employer must demonstrate that the person “is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.” This high standard will likely result in the reclassification of many independent contactors as employees.  Such workers would, as a result, become eligible for benefits and protections including, among other things, the minimum wage protection and unemployment insurance.

Companies opposed to the legislation, including Uber and Lyft, are committed to fighting and overturning this legislation.  Those companies, which rely on independent contractors, see this law as a mortal threat to their businesses and say it will cause them to lay off thousands of drivers.  According to the New York Times, some companies pledged $90 million in support of a ballot initiative to exempt themselves from the legislation.  Uber and Postmates even filed for an injunction on December 30, 2019 to prevent the law from coming into effect.  Some drivers for the ride sharing companies opposed the legislation as well, noting that it would decrease the flexibility of their driving schedules.  Other professional organizations, including the National Press Photographers Association, filed suit against California arguing that the legislation is unconstitutional.  The legislation, on the other hand, is the result of concerns about worker exploitation through the independent contactor model.

In the aftermath of the two disasters involving 737 MAX aircraft which led to the tragic death of over 300 passengers, Boeing CEO Dennis Muilenburg was recently forced out in.  Despite the problems that have plagued Boeing under his management, Muilenburg is departing with a significant severance package – potentially upwards of $60 million -because of a “golden parachute” provision in his employment contract which is to provide a “soft landing” for the young CEO.

The amount of Muilenburg’s severance is largely dependent on how Boeing characterizes the context of his departure.  Muilenburg receives more if his departure is deemed to be a retirement or layoff, but he gets less if the departure is designated as a simple resignation.  Either way, according to public filings, Muilenburg may be entitled to a significant amount, including more than $20 million of vested stock, a pension worth more than $11 million, a severance payment approximately worth $7 million, and a benefit plan worth more than $30 million.[1]  This windfall is in addition to the over $70 million in compensation already pocketed by Muilenburg during his relatively brief tenure as Boeing CEO.

On December 23, 2019, Boeing announced that it intended to classify the CEO’s departure as a resignation, suggesting that Muilenburg’s severance will be more like a termination-based severance.  He would, as such, likely not receive the most lucrative of the severance benefits. Nevertheless, the news of this severance has stirred public outrage, especially among the families of those killed in the two 737 MAX crashes.  This anger stems largely from the fact that Muilenburg could potentially walk away with approximately 270 times what Boeing is paying to those families that lost a loved one in the crashes (on average these families receive a mere $144,000 as compensation for their loss).

California recently enacted legislation aimed at allowing collegiate athletes to make money off their images and likeness.  This legislation has the potential to upend the infrastructure of college sports, governed primarily by the National Collegiate Athletics Administration (“NCAA”), and the way amateur athletes both choose colleges or pursue professional careers.

By way of brief background, the NCAA, a non-profit organization, takes in revenue in the billions of dollars with some individual universities making tens or hundreds of millions of dollars in sports-related revenue.  Meanwhile, student athletes are prohibited from using their name, image, or likeness to earn compensation for themselves and are largely prohibited from earning income from their athletics while in school, other than scholarships and various stipends.

This disparity has been a point of criticism for the NCAA for years, with critics noting that schools and businesses in the industry make millions off these student athletes, while the students themselves make nothing and may never earn if they do not go on to compete professionally because of injury or otherwise.  New legislation in California, home to some of the largest collegiate sports programs such as the University of Southern California, the University of California Los Angeles, and University of California Berkley, aims to allow students to profit, or at least earn some income, through their role as collegiate athletes.

In late September of this year, a large group of Google contract workers voted to unionize with the United Steel Workers, under the name “Pittsburg Association of Tech Professionals” (PATP). This vote to unionize by Google employees is one of the first instances of unionizing “white collar” information technology (IT) workers and may very well impact the tech industry at large.  Damon Di Cicco, an organizer with United Steelworkers that assisted in the creation of PATP, said that it would encourage others across the country in the tech industry to pursue a similar route towards unionization.

The recent vote seemingly reflects a shift in the mindset of tech industry workers.  Perhaps because an increasing number of individuals employed in the technology field are classified as contractors, who often are offered less protection than full-time employees, there is a now greater fear of exploitation and a desire for greater collective security. Many Google employees cited vast disparities in income and benefits between contractors and employees with essentially the same roles as a reason why unionizing was necessary. The most troubling aspect reported by contract workers at Google, however, was the lack of job security for these roles. Often times Google contract workers were staffed to projects with durations as short as two weeks.  They could not, as such, settle into their roles as projects were often discontinued and replaced with new, different projects that required distinct specializations.

Furthermore, through unionizing Google employees hope to achieve the benefit of additional paid days off. While Martin Luther King Day and Presidents Day, among many other holidays, are days that full-time Google employees have as paid days off, many Google contract workers were forced to use personal days for these holidays. If the movement to unionize is successful, the PATP has a great possibility of changing the rights and protections for employees within the technology industry for years to come.   At BLG we are seeing more and more consulting agreements as a result of this new rapidly adapting workplace, and noting the pros (flexibility) and cons (inconsistency) so we can best serve our clients with balanced agreements.  #BLG#letustaketheworryoutofyourwork

Towards the end of September 2019, the New York City Commission on Human Rights (NYCCHR) released a series of guidelines to inform New York City employers what constitutes discrimination on the basis of immigration status and national origin.  With the delicacy of current debate about immigration policy attention to these guidelines is particularly important.

These new guidelines include the following important guiding statements:

  • Discrimination or harassment in favor of U.S. citizens over other work-authorized individuals is generally prohibited.

On August 20th, New York Governor Andrew Cuomo signed a new law that will substantially expand employment discrimination protections for victims of domestic violence. These protections will take effect on November 18, 2019.

New York State Human Rights Law (“NYSHRL”) now defines “victim of domestic violence” the same as Section 812 of the Family Court Act, meaning any person over the age of 16 who is a victim of a crime committed by another family or household member that resulted in actual physical or emotional injury to the victim or created a substantial risk of such injury. This new 2019 legislation makes key changes to previous legislation in the area, including defining new actions taken by employers that will be considered unlawful discriminatory practices, increased requirements for reasonable accommodations for victims of domestic violence, and increased notice requirements.

The new law lists a variety of situations in which an employer must be more aware of and compassionate towards victims of domestic violence. Employers may not: (1) refuse employment because the applicant is a victim of domestic abuse, (2) advertise that they will not hire victims of domestic abuse, (3) use any employment application to discriminate against victims of domestic violence, (4) discriminate against a victim employee in some sort of manner (e.g., through wages, failure to promote, reduced privileges, etc.), or (5) terminate the victim upon learning he or she has suffered from domestic abuse.

Negotiations between unions and management over new collective bargaining agreements (“CBAs”) are usually contentious. Add in a corruption investigation affecting one of the largest labor unions in the country, in one of the biggest sectors of our economy, and those negotiations become exponentially more complex.  This scenario is playing out right now between the United Auto Workers (“UAW”) and the largest car manufacturers in Detroit (“Detroit”).

Over the past few years, the Department of Justice has conducted an investigation into alleged illegal payoffs between Fiat Chrysler and the UAW, which has led to arrests and convictions for both Detroit and the UAW.  The FBI raided the home of UAW president Gary Jones at the end of August intensifying the pressure.  The UAW argues that this raid was unnecessary as it claims it is fully cooperating with the Federal authorities, but it comes at a critical juncture as UAW’s current CBA is set to expire on September 14th.

The scope of the investigation has already placed the UAW in a difficult position.  In June, opponents of unionization used the investigation in their efforts to successfully prevent a Volkswagen plant from unionizing.  See Nick Carey, Federal Corruption Probe Hits Home for UAW Boss, Contract Talks Under ‘Storm Cloud’, Reuters (Aug. 28, 2019),  This weakened position may also blunt the effectiveness of a threatened strike in the event both sides cannot make a deal by the 14th – as members might be more hesitant to engage in a prolonged strike if they feel leadership will not be able to obtain a satisfactory agreement.

            When a public employee is a victim of employment discrimination, there are generally several ways in which he/she may pursue his/her claim. One method is by suing under Title VII of the Civil Rights Act of 1964, a statute that focuses on employment discrimination claims for both public and private employers. Also available, for some, is §1983 of the federal civil rights statute, which may afford a plaintiff greater monetary relief than is allowed under Title VII. A plaintiff may only sue under § 1983 when her employer is the government “acting under color of state law” – so this option is for those employed by public schools, universities, local government agencies or similar government-owned entities. However, a new ruling from the Second Circuit has limited the viability of the § 1983 path.

Issued by the United States Court of Appeals for the Second Circuit on August 12, 2019, Naumovski v. Norris creates stark distinctions between the treatment of gender discrimination cases under Title VII and §1983. In Norris, the Second Circuit ruled that the correct burden of proof under § 1983 for sex discrimination claims is “but-for” causation, meaning that sex discrimination must be the determining factor in the adverse action against a plaintiff. This is a stricter burden of proof than is required for Title VII which requires only that sex discrimination be a “motivating factor” in an adverse action against an employee. This higher burden will, of course, make success under §1983 more difficult.

In addition to establishing a higher burden of proof for § 1983 cases, the Norris court also ruled that there is no vicarious liability for employers under § 1983, unlike Title VII. Norris also left a wrinkle in interpreting the definition of “gender discrimination” under § 1983. Specifically, one may wonder what the holding of Norris means for plaintiffs who are the victim of employment discrimination based on their sexual orientation. Under a separate Second Circuit decision, Zarda v. Altitude Express, Inc., sexual orientation discrimination is considered to be a subset of gender discrimination under Title VII. This ruling does not clarify whether the new standards established by Norris affect sexual orientation discrimination cases, as Zarda interprets Title VII not § 1983. The court in Norris offered very little assistance in clarifying this issue under § 1983.  This leaves much uncertainty as to whether the same challenges for gender discrimination claims under § 1983 also apply to sexual orientation discrimination cases.

In June 2019, Connecticut (similar to NY mentioned in our previous blog post) introduced new employment legislation.  Coined the “Time’s Up Act” this Act is aimed at combatting sexual assault and harassment and it has created significant changes to Connecticut’s employment laws. The Act attempts to create additional safeguards that will enable employers to better prevent sexual assault and harassment in the workplace.

The “Time’s Up Act” expands the sexual harassment training requirements for employers in Connecticut. Under this new Act, every employer in Connecticut will be required to provide sexual harassment training for supervisors and other management officials, regardless of the size of the business. This is a significant departure from previous legislation, which only required such training for employers with 50 or more employees.  Furthermore, the Act makes it mandatory for all employers with 3 or more employees to provide sexual harassment training to these employees. The Act requires this training to be provided at least every 10 years.

In addition to requiring more expansive training, the Act also expands notice and posting requirements already in the place. Under this new Act, an employer is now required to send documents relating to harassment to every employee within 3-months of her/his hiring.  Employers may comply with this new requirement by posting such information on their website(s) and proving their employees with a link to the Connecticut Human Rights and Opportunities (CHRO) website that describes harassment and ways to report it. If an employer fails to comply with this requirement it will be subject to a fine of up to $1,000.

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