The 9th Circuit just blew up mandatory arbitration in consumer cases

From today’s Reuter’s Online News:

In a trio of rulings on Friday, the 9th U.S. Circuit Court of Appeals blessed a tactic that will allow plaintiffs lawyers litigating California consumer class actions to defeat defense motions to compel arbitration. If appellate rulings in the three cases – Blair v. Rent-A-Center, Tillage v. Comcast and McArdle v. AT&T Mobility – hold up, they represent a dramatic twist in corporations’ long-running, and mostly successful, campaign to force employees and consumers to arbitrate their claims individually instead of banding together in class actions.

If you don’t believe me, just ask the U.S. Chamber of Commerce and the National Association. In an amicus in one of the cases, the pro-business groups warned that under the theory the 9th Circuit just adopted, plaintiffs lawyers will be able to evade arbitration in “virtually every case” invoking California consumer protection statutes.

“It’s a very big deal,” said Michael Rubin of Altshuler Berzon, who represents consumers in the 9th Circuit’s Rent-A-Center case. And not just in California, according to Rubin. The three 9th Circuit decisions, as I’ll explain, involved consumers’ rights under several California statutes to seek injunctions forcing corporations to change their conduct. But Rubin told me the 9th Circuit’s analysis may just as well apply to other states’ consumer and employment statutes that include injunctive rights.

AT&T Mobility, which is represented at the 9th Circuit by Andrew Pincus of Mayer Brown, said in a statement that it is considering its options: “We respectfully disagree with the court’s decision, which we believe is inconsistent with the arbitration provision agreed upon by the parties, the Federal Arbitration Act and United States Supreme Court precedent.” Comcast counsel Mark Perry of Gibson, Dunn & Crutcher declined to provide a statement. Rent-A-Center’s lawyer, Robert Friedman of Littler Mendelson, did not respond to my email requesting comment.

The three appeals called upon the 9th Circuit to review the California Supreme Court’s 2017 ruling in McGill v. Citibank. In McGill, the state justices held that as a matter of California public policy, corporations cannot require consumers to waive their right to seek a public injunction. The California Supreme Court also held, without engaging in deep analysis, that California’s policy is not pre-empted by the Federal Arbitration Act.

Read the complete article here.

Machines May Not Take Your Job, but One Could Become Your Boss

From today’s New York Times:

When Conor Sprouls, a customer service representative in the call center of the insurance giant MetLife talks to a customer over the phone, he keeps one eye on the bottom-right corner of his screen. There, in a little blue box, A.I. tells him how he’s doing.

Talking too fast? The program flashes an icon of a speedometer, indicating that he should slow down.

Sound sleepy? The software displays an “energy cue,” with a picture of a coffee cup.

Not empathetic enough? A heart icon pops up.

For decades, people have fearfully imagined armies of hyper-efficient robots invading offices and factories, gobbling up jobs once done by humans. But in all of the worry about the potential of artificial intelligence to replace rank-and-file workers, we may have overlooked the possibility it will replace the bosses, too.

Read the complete article here.

New Evidence of Age Bias in Hiring, and a Push to Fight It

From today’s New York Times:

Across the United States, mammoth corporations and family businesses share a complaint: a shortage of workers. As the unemployment rate has tunneled its way to a half-century low, employers insist they must scramble to lure applicants.

The shadow of age bias in hiring, though, is long. Tens of thousands of workers say that even with the right qualifications for a job, they are repeatedly turned away because they are over 50, or even 40, and considered too old.

The problem is getting more scrutiny after revelations that hundreds of employers shut out middle-aged and older Americans in their recruiting on Facebook, LinkedIn and other platforms. Those disclosures are supercharging a wave of litigation.

But as cases make their way to court, the legal road for proving age discrimination, always difficult, has only roughened. Recent decisions by federal appeals courts in Chicago and Atlanta have limited the reach of anti-discrimination protections and made it even harder for job applicants to win.

It is complicating an already challenging juncture of life. Workers over 50 — about 54 million Americans — are now facing much more precarious financial circumstances, a legacy of the recession.

More than half of workers over 50 lose longtime jobs before they are ready to retire, according to a recent analysis by the Urban Institute and ProPublica. Of those, nine out of 10 never recover their previous earning power. Some are able to find only piecemeal or gig work.

“If you lose your job at an older age, it’s really hard to get a new one,” said Richard Johnson, an Urban Institute economist who worked on the analysis.

Read the complete article here.

Walmart CEO to shareholders: America’s minimum wage is ‘too low’

From today’s CNN News Online:

Walmart CEO Doug McMillon thinks the federal minimum wage is “too low.” Now the head of the country’s largest private employer is calling on Congress to raise it beyond $7.25 an hour.

“The federal minimum wage is lagging behind,” Doug McMillon said at Walmart’s annual shareholder meeting in Bentonville, Arkansas on Wednesday.

Congress has not raised the minimum wage since 2009, but McMillon’s surprise comments may give lawmakers an incentive to act. McMillon’s call may also ease pressure on Walmart.Senator and presidential candidate Bernie Sanders, along with workers’ rights groups, have called on Walmart to raise its wages above the company’s current $11-an-hour minimum.

McMillon said “it’s time for Congress to put a thoughtful plan in place” to increase wages. It was the first time he has pushed Congress to raise pay nationwide, according to the company.

Any plan to increase the minimum wage, however, should take into account cost of living differences around the country “to avoid unintended consequences,” McMillon said. He also noted that a hike may need to be phased in over time.

McMillon defended Walmart’s moves to raise wages, expand benefits and train its 1.5 million US workers in recent years. The company has steadily been raising its minimum wage, boosting it to $11 an hour more than a year ago. That’s up 50% in the last four years, McMillon said.

McMillon added that Walmart pays more than $11 in some markets to “recruit and retain the talent we need to run a good business.”In a hotel ballroom near Walmart’s corporate headquarters in Bentonville, Sanders pressed the world’s largest retailer to increase its wages and called out McMillon for his nearly $24 million in total pay last year. Sanders also introduced a shareholder resolution that would put hourly workers on Walmart’s board of directors. The resolution was voted down on Wednesday.

Read the complete article here.

Clarence Thomas Voted With Liberals in a Big Consumer Rights Case. Why?

From today’s Slate Magazine:

On Tuesday, the Supreme Court issued a surprising 5–4 decision in Home Depot v. Jacksonthat progressive advocates view as a win for consumers and class actions. The lineup in Home Depot was unusual: Justice Clarence Thomas wrote the majority opinion, joined only by the liberals; the other conservatives dissented. Home Depot marked the second time this term that Public Justice, a public interest advocacy firm, has triumphed at SCOTUS. Earlier this year, the firm won a unanimous victory in New Prime v. Oliveira, an important labor rights case. How did it nab Thomas’ vote this time around?

The story of Home Depot is a tale of greed, grift, and civil procedure. It centers on a scheme that involved three companies: Home Depot, Citibank, and Carolina Water Systems Inc. Here’s how it allegedly worked. Representatives from Home Depot or CWS called homeowners and claimed that “contaminants” were found in nearby tap water. They urged homeowners to let them perform a test for “contaminants,” which was really just a test for water hardness; almost all tap water tested positive, even if it was perfectly safe. But CWS told homeowners the positive result proved their water was unsafe and required a $9,000 water purification system that other companies sell for $1,400. The company then told homeowners they had been approved for a Home Depot–branded Citibank credit card, which they could use to pay for the system with deferred interest.

George Jackson got suckered into this alleged scam and, like many others, couldn’t afford to pay off the charges he put on the credit card to pay for the overpriced water purification system. A company representative allegedly told Jackson the Citibank card had zero interest for two years—but in fact, the interest rate jumped to 25.99 percent after one year. Jackson couldn’t afford to pay, so Citibank sued him in state court to collect the debt. Eventually, he secured the representation of consumer protection lawyers who filed a counterclaim against Citibank, as well as class-action claims against Home Depot and CWS on behalf of about 290 other homeowners targeted by the alleged scam. He claimed that the companies, working together, had violated North Carolina laws prohibiting unfair and deceptive trade practices.

Home Depot promptly tried to move the case from North Carolina court to federal court—a typical corporate tactic, since federal courts are widely considered to be more business-friendly than state courts. F. Paul Bland, the executive director of Public Justice who argued Home Depot at the Supreme Court, told me that there’s a strong perception among most corporations that “federal courts are more hostile to consumer class action.” Federal judges “are overwhelmingly former prosecutors, corporate lawyers, and law professors,” and “very few ever represented a consumer or worker against a corporation.” By comparison, “about 40 percent of state court judges were plaintiffs’ lawyers.” State courts, as a result, are considered much friendlier to consumer class actions, hence Home Depot’s desire to get the case before a federal judge instead.

Republican lawmakers also think state courts are too favorable toward class actions, which is why the GOP-controlled Congress passed the Class Action Fairness Act in 2005. CAFA was designed to expand the kinds of class actions that corporations could move from state to federal court. It has, Bland said, “been a great boon to corporate America.” And predictably, in response to Jackson’s claims, Home Depot argued that CAFA allowed it to move the entire case out of North Carolina court and get it before a federal judge.

But Home Depot had a problem. Under a long line of cases going back to the 1940s, only a defendant can move a case from state to federal court. And a defendant is defined as the party sued by the original plaintiff. Here, Jackson is the defendant; remember, Citibank sued him to collect the debt he owed—that’s how the whole case started. Under the usual rules, then, Home Depot can’t escape North Carolina court.

Read the complete article here.

Many Adults Would Struggle to Find $400 in an emergency, the Fed Finds

From today’s New York Times:

Four in 10 American adults wouldn’t be able to cover an unexpected $400 expense with cash, savings or a credit-card charge that could be quickly paid off, a new Federal Reserve survey finds.

About 27 percent of people surveyed would need to borrow or sell something to pay for such a bill, and 12 percent would not be able to cover it at all, according to the Fed’s 2018 report on the economic well-being of households, which was released Thursday.

The share that could cover such an expense more easily has been climbing steadily and now stands at 61 percent, up from just half when the Fed started this annual survey in 2013. Still, the finding underlines the fact that many Americans remain on the edge financially even as this economic expansion is approaching record length and people have become more optimistic.

Household finances over all have shown a marked improvement over the life of this report, thanks in large part to an improving labor market that has lifted wages and left more Americans with jobs. Three-quarters of adults said they were “doing O.K.” or “living comfortably” when asked about their economic well-being, up from 63 percent in 2013.

Underlying disparities persist. Just 52 percent of rural residents said their local economy was doing well, compared with 66 percent of city dwellers. And while nearly seven in 10 white adults viewed their area’s economy as good or excellent, only six in 10 Hispanic adults and fewer than half of black adults said the same thing.

Read the complete article here.

Uber drivers are contractors, not employees, U.S. labor agency says

From today’s Reuters News Service:

Drivers for ride-hailing company Uber Technologies Inc are independent contractors and not employees, the general counsel of a U.S. labor agency has concluded, in an advisory memo that is likely to carry significant weight in a pending case against the company and could prevent drivers from joining a union.

The recommendation by the office of general counsel Peter Robb, who was appointed to the National Labor Relations Board by President Donald Trump, was made in a memo dated April 16 and released on Tuesday.

The general counsel said in the memo that Uber drivers set their hours, own their cars and are free to work for the company’s competitors, so they cannot be considered employees under federal labor law.

A ruling on the case is to be made by an NLRB regional director. Advisory memos from the general counsel’s office are generally upheld in rulings. Any decision could be appealed to the NLRB’s five-member board, which is also led by Trump appointees but is independent of the general counsel.

Read the complete article here.

Workers, Should You Tell the World How Much Money You Make?

From today’s New York Times:

There are many questions Alison Green is asked as a columnist who writes about workplace issues. There was the woman who wanted to know if she should attend couple’s therapy with her boss and the boss’s boyfriend. (The boyfriend happened to be her father.) Another time she heard complaints about a janitor who cast a hex on her colleagues.

But Ms. Green was taken aback recently when asked about her salary, a topic so fraught even she couldn’t come up with a good answer. “No one has ever asked me that,” she said. “I don’t want to say.”

Many employees are loath to discuss their salaries, she said, worried it would cause resentment, or worse, among peers. “We are all so weird about telling people how much money we make, even me.”

Perhaps it is why, too, Ms. Green recently asked readers of her “Ask A Manager” website to share their job title, where they live and how much they make each year. Answers were anonymous; the data was compiled in a spreadsheet on Ms. Green’s website so people could sort through the data.

Within a half-hour, she had 1,000 responses. A day later, so many people posted their salaries her website froze. So far, three weeks later, she has more than 26,000 responses, everything from an accountant in Chicago who makes $90,000 to a librarian in Austin who earns $39,000. She was surprised by the overwhelming response: Previous surveys in 2014 and 2017 garnered a fraction of interest, fewer than 2,700 comments apiece.

Why the interest now? Attitudes about workers disclosing pay are shifting, for one, as unemployment has reached a five-decade low. And the gig economy has made salary comparing a near necessity for many. (How else does a person know what to charge if they are a freelancer?)

Read the complete article here.


Labor Dept. Says Workers at a Gig Company Are Contractors

From today’s New York Times:

The Labor Department weighed in Monday on a question whose answer could be worth billions of dollars to gig-economy companies, deciding that one company’s workers were contractors, not employees.

As a result, the unidentified company — whose workers, it appears, clean residences — will not have to offer the federal minimum wage or overtime, or pay a share of Social Security taxes. And while the decision officially applies only to that company, legal experts said it was likely to affect a much larger portion of the industry.

The move signals the Trump administration’s approach to the way gig companies, a growing share of the economy, must treat their work force. As companies like Uber and Lyft begin to sell shares to the public, industry officials estimate that requiring them to classify their workers as employees would raise their labor costs by 20 to 30 percent.

“Today, the U.S. Department of Labor offers further insight into the nexus of current labor law and innovations in the job market,” Keith Sonderling, an official in the division that oversees such issues, said in a statement. It is a longstanding policy for the department not to disclose the names of companies receiving such letters.

Read the complete article here.

SCOTUS To Hear Cases On Title VII Protections For LGBTQ Employees

From today’s NPR News Online:

The Supreme Court has accepted three cases that ask whether federal anti-discrimination laws should apply to sexual orientation and gender identity in the workplace, putting the court on track to consider high-profile LGBTQ issues after its next term begins this fall.

Two of the cases — Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda — were consolidated because both include claims that employers discriminated on the basis of sexual orientation. A third — R.G. & G.R. Harris Funeral Homes v. EEOC — involves the question of whether existing discrimination laws apply to transgender workers.

The Supreme Court granted petitions for writs of certiorari for the three cases Monday morning, adding them to their workload for the term that will start in October — meaning any decisions and opinions will emerge in the runup to the national election in 2020.

But the court also set limits as it accepted the cases. As the court’s order list states, the scope of the court’s review of the Harris Funeral Homes case is limited to only question “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping” under the 1989 decision in the Price Waterhouse v. Hopkins case.

The Supreme Court’s order refers to Title VII, the part of the Civil Rights Act of 1964 that prohibits employers from discriminating on the basis of race, color, religion, sex and national origin. In recent years, lower federal courts have disagreed on whether the same protections should apply to people based on their sexual orientation and gender identity. That divide can be seen in the trio of cases now up for review.

“In two of the cases, lower courts sided with the plaintiffs,” NPR’s Leila Fadel reports for our Newscast unit, “one in Michigan where a transgender woman was fired from her job at a funeral home based on her gender identity; another, out of New York where a skydiving instructor was allegedly fired because he’s gay. But in a third case in Georgia, a gay man who was fired from his job as a child welfare services coordinator lost.”

In that third case, the Court of Appeals for the 11th Circuit turned away an appeal from Gerald Lynn Bostock last summer. Even before Bostock’s appeal request was declined by the full panel, his attorneys already had asked the Supreme Court to weigh in.

Read the complete article here.