Victims of Sexual Misconduct on the Job Testify Against Forced Arbitration

From today’s New York Times:

Former employees of the technology company Afiniti, the broadcaster CBS and the luxury giant LVMH shared accounts of sexual abuse, rape and harassment with a congressional committee on Tuesday, experiences they said they had been required to keep quiet because they had signed contracts with “forced arbitration” clauses.

The testimony, which implicated executives at the companies, came as the House Judiciary Committee was considering legislation that would abolish forced arbitration for victims of sexual assault and harassment. Forced arbitration often requires an employee to go through a private proceeding with his or her employer after bringing an accusation of workplace misconduct, according to legislators.

Although arbitration clauses do not prevent employees from going to the police in the event of a serious crime, companies often make signing them a condition of keeping or getting a job. Paired with confidentiality clauses, they can have a chilling effect on reporting misconduct.

The witnesses were all women who worked in different fields and described a range of experiences of misconduct, from verbal harassment to outright assault. They testified for hours, under protection of congressional subpoenas.

Tatiana Spottiswoode said that in April 2016, she had begun working for Afiniti, a medical-device technology company founded by Zia Chishti, whom she described as a multimillionaire and a family friend who had known her since she was about 12 years old.

Ms. Spottiswoode, who was about 23 at the time, said she had signed a contract that included “an arbitration agreement with a strong confidentiality clause.”

Read the complete story here.

Portugal Bans Employers from Texting Employees after Work. Could it Happen Here in the US?

From today’s The Guardian:

Employers in Portugal will now face fines if they attempt to contact remote workers after hours, thanks to a new law.

The legislation was conceived by Portugal’s ruling Socialist party to improve work-life balance for the country’s remote workforce, which expanded due to Covid-19, and to make Portugal a more attractive base for international “digital nomads” – people who travel while telecommuting.

Portugal isn’t the only country modernizing its labor laws; citizens of France, Spain, Belgium, Slovakia, Italy, the Philippines, Argentina, India and more, all currently enjoy “the right to disconnect” – or abstain without punishment from working and communicating with their employers during designated rest periods.

In 2013, Germany’s employment ministry implemented a ban on employers contacting workers outside of contracted hours, and several of the country’s large employers, including Volkswagen and Daimler, have instituted policies intended to limit the number of emails employees receive outside of work hours, too.

The provincial government of Ontario is also introducing legislation that would require employers to establish a written policy setting generous “expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they aren’t working”, according to a government release.

Could this ever happen in the United States?

“I don’t think that we’ll see a firm requirement of employers to not at all contact employees during non-work hours,” says Orly Lobel, professor of law at the University of San Diego.

While California does have laws against employers forcing employees to work overtime, and mandates that all overtime be paid, Lobel thinks that adopting and enforcing rules about work hours on a federal level would be overly complex and contradictory to the nature of globalized professional work, in which urgent tasks inevitably crop up and must be dealt with by someone.

Read the complete story here.

Facebook settles federal lawsuit over allegations it favored foreign workers

From today’s NPR News Online:

Facebook is paying a $4.75 million fine and up to $9.5 million to eligible victims to resolve the Justice Department’s allegations that it discriminated against U.S. workers in favor of foreigners with special visas to fill high-paying jobs.

Facebook also agreed in the settlement announced Tuesday to train its employees in anti-discrimination rules and to conduct more widespread advertising and recruitment for job opportunities in its permanent labor certification program.

The department’s civil rights division said the social network giant “routinely refused” to recruit, consider or hire U.S. workers, a group that includes U.S. citizens and nationals, people granted asylum, refugees and lawful permanent residents, for positions it had reserved for temporary visa holders.

Facebook sponsored the visa holders for “green cards” authorizing them to work permanently. The so-called H-1B visas are a staple of Silicon Valley, widely used by software programmers and other employees of major U.S. technology companies.

Critics of the practice contend that the foreign nationals will work for lower wages than U.S. citizens. The tech companies maintain that’s not the case, that they turn to foreign nationals because they have trouble finding qualified programmers and other engineers who are U.S. citizens.

“In principle, Facebook is doing a good thing by applying for green cards for its workers, but it has also learned how to game the system to avoid hiring U.S. tech workers,” said Daniel Costa, director of immigration law and policy research at the liberal-leaning Economic Policy Institute. “Facebook started lobbying to change the system more to its liking starting back in 2013 when the comprehensive immigration bill that passed the Senate was being negotiated.”

The settlement terms announced Tuesday are the largest civil penalty and back-pay award ever recovered by the civil rights division in the 35-year history of enforcing anti-discrimination rules under the Immigration and Nationality Act, officials said. The back pay would be awarded to people deemed to have been unfairly denied employment.

Read the complete story here.

A proposed California law, AB 257, could transform fast-food work for the better

From today’s Fortune Magazine:

A new policy strategy emerging in California holds the potential to transform fast-food work from some of the lowest-paying jobs in the state into good jobs, with solid wages, benefits, and a voice at work. Workers, employers, and policymakers in the state and around the country should pay close attention to this model, because setting and enforcing high standards in the fast-food industry is notoriously challenging—due to the industry’s franchising model, its numerous small employers with little ability to profitably raise standards, and its largely non-union workforce.

LOS ANGELES, CALIFORNIA - APRIL 16: Flags are flown at a car caravan and rally of fast food workers and supporters for passage of AB 257, a fast-food worker health and safety bill, on April 16, 2021 in the Boyle Heights neighborhood of Los Angeles, California. The rally was held outside of a McDonald’s location where a worker lodged public health complaints and a wage theft complaint. Some fast food workers are on strike in Los Angeles County today in support of the bill. (Photo by Mario Tama/Getty Images)

Fast food workers earn some of the lowest wages in California—$13.27 an hour, according to the Bureau of Labor Statistics—with only farm workers earning less in the state. Benefits are also meager: Researchers have estimated that just 13% of fast-food workers receive health benefits through their employer. A 2021 study found that more than two-thirds of the families of fast-food workers in California were enrolled in at least one public-safety net program, such as the Supplemental Nutrition Assistance Program (SNAP) or Medicaid, at a public cost of $4 billion a year.

Compounding these problems is that nearly 9 in 10 fast food-workers, say they are subject to illegal working conditions—refused overtime pay, forced to do off-the-clock work, denied breaks, or placed in unsafe situations.

At the heart of the strategy to improve conditions for fast food workers in California is a “sectoral council,” which would bring together representatives of workers, employers, and public-sector regulators to make recommendations regarding minimum compensation, safety, scheduling stability, and training standards for the industry.  A hearing on the FAST Recovery Act—a bill that would establish the sectoral council—was held on April 22, and some think the bill could pass this year.

Sectoral councils and similar bodies have succeeded in helping raise working standards in a number of industries and regions. The state of New York used a wage board to bring together representatives of workers, employers, and the public to raise wages for fast-food workers;  the city of Seattle Domestic Workers Standards Board provides a forum for domestic workers, employers, private households, worker organizations, and the public to improve conditions for that sector; and a number of countries, including Australia and Britain, have used similar bodies in labor relations.

A fast-food sectoral council could form the backbone of fundamental change in the industry: It could not only raise standards for workers but also provide a way for workers as well employers—both franchisees and franchisors—to have a strong voice on the standards in their industry, while helping ensure standards are actually implemented and complied with.  These features are critical, because the structure of the fast-food industry makes it difficult to improve working conditions with traditional measures that have succeeded in other industries, such as actions by high-road employers that want to provide good compensation, the push of collective bargaining, or stand-alone legislated standards.

Read the complete article here.

California should pass AB1119 to protect the work rights of family caregivers

From today’s Los Angeles Times:

As travel ground to a halt in April 2020, the janitorial staff at a hotel chain were furloughed. When business resumed, everyone was called back — everyone, that is, except the mothers.

In a pandemic layoff at another company, only two people lost their jobs — one was a new mother, the other was on maternity leave.

When a woman complained about insufficient COVID-19 protection at a warehouse distribution center, her bosses retaliated by rescheduling her, making it nearly impossible for her to supervise her children’s remote schooling and do her job at the same time.

We see discrimination against parents at the UC Hastings Law School Center for WorkLife Law during normal times, but calls to our hotline increased sevenfold as COVID-19 took hold.

It’s no news that workers are vulnerable because of the weakness of American employment laws, but it may be news that their family responsibilities may put them at greater risk.

Employers prefer “ideal” workers, the kind whose home lives don’t impose on workdays or require even occasional flexibility. The pandemic upended the notion that cookie-cutter rigidity is a work prerequisite, but it also gave some bosses cover to stick with the old mindset, as the workers who’ve been calling us discovered.

California is considering legislation that would push such employers into new thinking.

Assembly Bill 1119, now under committee consideration, would amend the state’s Fair Employment and Housing Act in two ways: It would make it illegal for employers to discriminate against people seeking, obtaining and holding work based on family caregiving responsibilities. And it would require employers to give regular caregivers — those with “direct and ongoing” responsibilities for children and other family members — simple accommodations, such as the right to arrive a few minutes late when school or childcare becomes unexpectedly unavailable, unless the accommodation imposes an undue hardship on the employer.

Read the complete article here.

What Prop. 22’s defeat would mean for Uber and Lyft — and drivers

From today’s Los Angeles Times:

One way or another, the business of summoning a ride from your phone is likely to look different in California after Nov. 3.

The future of gig work could hinge on the success or failure of Proposition 22, called the App-Based Drivers as Contractors and Labor Policies Initiative. Uber, Lyft and other companies bankrolling the initiative say it would improve workers’ quality of life, providing new benefits while preserving their autonomy. If passed, the measure would cement gig workers’ status as independent contractors, dealing a huge blow to a labor movement striving to bolster protections for workers at the margins.

Abstract illustration of an app-based driver in a car

Gig companies’ business models rely on hiring large numbers of workers cheaply as independent contractors to provide rides, deliver meals and groceries and perform other services. Assembly Bill 5, a state law passed in 2019, aimed to expand protections to these workers, requiring gig companies to reclassify them as employees.

Proposition 22 represents the companies’ efforts to battle that law and the obligations that come with it.

Uber, Lyft, DoorDash, Instacart and Postmates (which was recently acquired by Uber) have jointly poured close to $200 million into the “yes” campaign, flooding the airwaves and their own apps with ads and making the measure the costliest in U.S. history.

At the heart of it all is a vicious fight to shape the prospects of hundreds of thousands of drivers and delivery workers across the state.

Here’s what you need to know.

What would happen if Proposition 22 passes?

For the companies sponsoring it, the short answer is: business as usual. For workers, it would bring some clarity, at a price.

The text of Proposition 22 assures drivers they would maintain flexibility as independent contractors. The measure offers some benefits similar to those conferred under AB 5, but significantly weaker.

Gig companies thus far have resisted compliance with AB 5, which went into effect Jan. 1. In early August, a judge ordered Uber and Lyft to convert their drivers to employees. At the 11th hour, the companies won a temporary stay of the order from a state appeals court, effectively pushing off the deadline until after voters have their say.https://datawrapper.dwcdn.net/Krp2r/6/

Uber and Lyft presented oral arguments before California’s 1st District Court of Appeal on Tuesday. The court has 90 days to decide whether it will uphold the lower-court ruling. But Proposition 22, if passed, would override protections granted by AB 5.

The measure instead would grant 120% of the minimum wage (state or local, depending on where the driver is). However, this minimum narrowly applies to “engaged time,” meaning the time a driver is on a trip with a passenger or en route to pick up a passenger. One study found drivers spend one-third of their time waiting between passengers or returning from trips, time that would not count toward the minimum wage.

Read the complete article here.

Will rideshare drivers get paid less than minimum wage under Proposition 22

From today’s Sacramento Bee:

Proposition 22 proposes that gig drivers for companies such as Uber, Lyft and Doordash will get paid 120% of the area’s minimum wage for the time they spend picking up and driving goods or passengers, plus 30 cents a mile.

Proponents of the proposition argue under its calculation, the drivers will get paid closer to $25 an hour after expenses, much more than the state’s minimum wage. But the initiative’s opponents cite a much-published study from the UC Berkeley Labor Center, whose researchers said Proposition 22 will guarantee only $5.64 an hour.

Amid an onslaught of advertisements, Proposition 22 still has a fundamental question to answer: How much will the gig drivers get under the initiative. A Sacramento Bee review found that the answer depends on how expenses and time at work are defined. But it is possible that workers would earn less than minimum wage under the measure.

In 2019, Ken Jacobs and Michael Reich at the UC Berkeley Labor Center published a report saying the gig drivers using Uber or Lyft will only be guaranteed a pay of $5.64 an hour under Proposition 22. They still stand by the number.

Under Proposition 22, drivers could get a pay cut from what they are paid now, Jacobs said. “The guarantee they claim to have,” he said of the gig companies. “is a false guarantee.”

Under Proposition 22, drivers will not be paid for the time they are waiting to give a ride, nor the time they spend preparing and cleaning their cars. That time accounts for some 33% of the drivers’ working time, Jacobs said, citing a 2019 study that looked at Lyft and Uber rides in six metropolitan areas across the country, including Los Angeles and San Francisco. “It’s impossible to do the work without having the time waiting for work,” Jacobs said.

Another report, “Rigging the Gig,” by the National Employment Law Project and the Partnership for Working Families found that drivers working 50 hours a week will be paid $175 to $210 less a week under Proposition 22 compared to the current minimum wage.

Read the complete article here.

5 questions about labor strikes that you were too embarrassed to ask

From today’s Vox News Online:

Nearly 1,000 Amazon employees are walking out of work. More than 45,000 GM auto workers are on strike for the fifth day in a row. In October, about 80,000 Kaiser Permanente employees are set to go on strike.

The wave of labor unrest has become a defining feature of the economy since the 2008 Great Recession. In 2018, a record number of employees went on strike: School teachers, hotel workers, health care workers — even Google employees. Most of them were angry about stagnant wages and proposed benefits cuts, but some were just frustrated with company policies.

But all the walkouts have raised the question of what, exactly, counts as a strike and what are the consequences? Is it the same as a walkout? Is it even legal?

I spoke to four labor lawyers across the country to get a better understanding of what legal rights workers have to throw up their hands and walk off the job — and what right a company has to respond.

One law professor pointed out that a walkout to protest government inaction climate change, for example, is not protected under federal labor law because it’s not related to an employee’s working conditions. But if workers walk out because they believe their employer (like, say, Amazon) isn’t doing enough to make the company sustainable, then that would likely be a protected work stoppage.

“If everyone walks out or calls in sick, it’s still a strike,” Kenneth Dau-Schmidt, an employment law professor at Indiana University Bloomington, said to me. Whether or not the law protects workers from getting fired depends on the context.

Read the complete article here.

Opinion: You Call It the Gig Economy, but California Calls It “Feudalism”

From today’s New York Times:

Labor leaders cheered in the balcony and lawmakers embraced on the floor of the California Senate on Tuesday as it passed a landmark measure that defines employees, a move that could increase wages and benefits for hundreds of thousands of struggling workers.

Image result for uber

But the bill is as much a starting point as an endgame: It will drive a national debate over how to reshape labor laws fashioned in the industrial era of the 1930s to fit a 21st-century service and knowledge economy.

With the measure, which Gov. Gavin Newsom says he will sign, California will lead in a shift that will likely redefine the roles of governments, unions and worker organizations. Just as federal labor laws were promulgated to help the country recover from the Depression, the imperative to extend basic guarantees like a minimum wage stems from the staggering income inequality in California, the state with the highest poverty rate in the country.

The new paradigms will need to fit not the relatively stable industrial work force of the last century but a gig economy in which workers are increasingly likely to hold multiple jobs or report to no workplace at all. California lawmakers took a major step in constructing the foundation of such a model with the new measure, which presumes workers are employees, entitled to all concomitant protections and benefits, unless they meet strict criteria as truly independent contractors.

Read the complete article here.

Sweeping bill rewriting California employment law sent to Gov. Newsom

From today’s Los Angeles Times:

California lawmakers rewrote the rules of employment across a wide swath of industries Wednesday in legislation that could grant hundreds of thousands of workers new job benefits and pay guarantees.

After vigorous debates over what occupations should be exempted, Assembly Bill 5, which curbs businesses’ use of independent contractors, gained final approval in the state Senate and the Assembly and was sent to Gov. Gavin Newsom, who has pledged his support.

The 6,700-word bill is one of the most controversial of the year. It could upend the relationship between workers and bosses across businesses as varied as ride-hailing tech giantsconstruction, healthcare, truckingjanitorial servicesnail salonsadult entertainment, commercial fishing and newspapers.

The message of the legislation, said its author, Assemblywoman Lorena Gonzalez (D-San Diego), is “we will not in good conscience allow free-riding businesses to continue to pass their own business costs on to taxpayers and workers. It’s our job to look out for working men and women, not Wall Street and their get-rich-quick IPOs.”

Contractors, including many in multibillion-dollar technology companies, are not covered by laws guaranteeing a minimum wage, overtime pay, sick leave, family leave, unemployment and disability insurance, workers’ compensation and protection against discrimination or sexual harassment. Nor do businesses pay into Social Security or Medicare for contractors.

After months of lobbying by the California Chamber of Commerce and a score of trade associations, AB 5 exempted a host of occupations — but not platform-based gig giants Uber, Lyft, DoorDash, Postmates and others that mounted a powerful push to avoid reclassifying their workers as employees with labor law protections.

Read the complete article here.