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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.

At the completion of the 2019 session, the New York State legislature passed not just one but several bills that will have a significant impact on many New York employers – particularly those located outside of New York City.  Several of the new bills impacting the State parallel existing “employee-friendly” laws already in place in the City.

One new bill impacting the State now allows plaintiffs to recover punitive damages (damages awarded to an injured party to punish the reckless actions of a defendant) in claims of employment discrimination. Furthermore, if an employer is found to have engaged in unlawful discrimination, a plaintiff may be awarded attorney’s fees. This is a large departure from previous New York law which, until this year, neither authorized punitive damages for any kind of discrimination claims nor permitted an award attorney’s fees for any discrimination claim (with the exception of sex-based discrimination claims).

Additionally, the New York legislature has instituted a state-wide salary history inquiry ban. This means that during the job hiring process, a private employer cannot ask an applicant about prior salaries received by that individual. Furthermore, an employer cannot refuse to interview, hire, or retaliate in any away against an applicant or current employee based on his/her refusal to provide their salary history, or based on his/her current salary. Notably, the new law does not prevent an applicant or current employee from voluntarily disclosing their salary history. Several differences exist between this new bill and already existing laws relating to salary disclosure. For example, unlike similar laws in New York City, this new bill protects both applicants and current employees, not just applicants.

Amazon – it’s the company that we all know and love for its lightning fast shipping, often getting your orders to you as quickly as next day. Not only does Amazon offer its customers a more convenient way to shop, but it also offers many items at cheaper prices than you would find at most major retailers. While it is easy to imagine that this industry trend setter has perfected some algorithm enabling it to deliver cheaper, and quicker than most retailers, it has recently come to light that Amazon’s services come at a different kind of  cost; long hours, little to no bathroom breaks, and hefty physical demands.

Many of the poor working conditions complained of by Amazon employees result from these hefty performance demands placed on the workers. Amazon utilizes a “rate” system, meaning that workers must fulfill a specified quota in a specified amount of time. For example, an individual who is employed as a “picker” with Amazon will often only have a few seconds to reach a shelf, regardless of its location, pick the item, scan it, and place it on a line to be packaged and sent to the consumer. In addition, workers are provided, on their scanning device, information announcing whether they are on par for meeting their rate or if they are behind. This sound quite efficient, but as many employees complain, a simple trip to the bathroom is enough to lower an employee’s rate to irredeemably behind schedule, placing them at risk of receiving a warning, being written up by a supervisor, or even terminated. The utilization of the bathroom is so detrimental to an employee’s career, that many suffer from dehydration out of fear that if they drink, they will have to use the bathroom and their jobs will be in jeopardy. The task of staying on time is complicated further when one factors in the distance an employee must cover between picks, sometimes being required to walk football fields away to obtain their next pick. On average, an Amazon picker will walk 10 to 12 miles a day, a feat for even the spryest of employees. So why does Amazon utilize a rate system? To achieve its daily goal of having an order processed every 10-20 seconds. Many employees at Amazon, however, claim that this goal and the rate system utilized are unsustainable.

This week, at several of Amazon’s warehouses across the globe, and in the midst of Amazon’s Prime day, several workers chose to voice their concerns about treatment.  Despite the complaints and strikes, Amazon has maintained its position that the protestors’ claims are in many respects baseless. Amazon prides itself on “industry-leading pay”, plentiful benefits, a 401k, and safe work environment for its employees. Amazon serves, moreover, as one of the United States’ largest employers, employing just under 600,000 individuals in 2018 and has served as an industry trend setter. Amazon claims to have revolutionized worker productivity, and has created an impressive business model with an economic benefit to consumers that extends far past just the consumers’ wallet. Amazon has had the effect of reducing inflation rights, reducing unemployment, an encouraging the growth of small businesses.

In 2019, New York employees can expect to see a dramatic increase in the protections they are afforded as whistleblowers. Two bills, one originating from the Assembly (A7384) and one from the Senate (S3683), would amend New York’s Whistleblower Statutes (N.Y.L.L. §§740, 741) while simultaneously expanding the statutes’ breadth and protections.

Should this new legislation pass, potential whistleblowing employees may rest easier, as these new bills provide increased protection for those who choose to report concerns of workplace misconduct. The amendments make a number of crucial changes. Most notably, A7384 expands who is protected by the statute by including not only private employees in its definition of protected individuals, but also public and former employees who were not included previously. The bill also protects employees by eliminating the need for there to be an actual violation of the law by an employer for an employee to be protected. Instead, an employee merely needs to show that he or she “in good faith reasonably believes [an employer activity] has occurred or will occur” and “in good faith reasonably believes  [that such activity] constitutes [an] illegal business activity.” This good faith requirement, adds the qualification that an employee can only be protected for bringing the suspected illegal activity to the attention of the employer (with a few specific exceptions). However, this requirement is eased by the inclusion of a requirement that employers must put employees on notice of their rights under the Whistleblower Statutes by posting a notice containing these rights in an easy to view location in the workplace.

Similarly, these new bills lower the bar required for an employee to meet the burden of proof in cases where the employee claims an adverse employment action was taken against them in retaliation for whistleblowing. Previously, an employee would have to prove that the whistleblowing was a “but-for” cause of the adverse action. To illustrate, an employee’s whistleblowing is a but-for cause if no adverse action would have been taken against the employee “but for” their reporting. Under the new laws, however, an employee must only show that his/her whistleblowing was a contributing factor in the employer’s adverse action against the employee. For example, under the new laws, an adverse action is actionable if the employee’s whistleblowing was one of the several reasons which motivated the employer to take an adverse action against the whistleblower.

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