Owen H. Laird, Esq.

As we have previously discussed, Uber, the multi-billion dollar company behind the eponymous smartphone taxi app, is in a long-term dispute with its drivers over benefits and pay.  This dispute stems from Uber’s classification of its drivers as independent contractors rather than employees.  Last week, a federal court in California threw out a proposed agreement between Uber and its drivers that would have allowed Uber to continue classifying them as independent contractors.

Drivers filed class action lawsuits in Massachusetts and California challenging Uber’s classification.  Earlier this year, Uber reached agreement on the settlement with the two groups of drivers.  Under the terms of the settlement, Uber could continue classifying its drivers as independent contractors, but was required to pay its Massachusetts and California drivers a total of $100 million, allow them to accept tips, and permit them to investigate forming driver collectives.

Edgar M. Rivera, Esq.

On August 8, 2016, the American Bar Association (“ABA”) voted at its 2016 Annual Meeting in San Francisco to prohibit discrimination and harassment in the practice of law. The ABA’s House of Delegates adopted Resolution 109, which amends Rule 8.4 of the ABA’s Model Rules of Professional Conduct to “make it clear that it is professional misconduct to engage in conduct that a lawyer knows or reasonably should know constitutes harassment or discrimination while engaged in conduct related to the practice of law,” which includes “representing clients, interacting with witnesses, coworkers, court personnel, lawyers and others while practicing law, operating a law firm and participating in bar association, business or social activities in connection with the practice of law.”  The rule prohibits harassment or discrimination based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”

This amendment is necessary because “explicit and implicit discrimination is still pervasive in our institutions as well as across a counsel table,” said Marsha Anastasia, president of the National Association of Women Lawyers. In particular, many female lawyers have complained of undermining sexist remarks and gestures toward them while they are trying to practice their profession. Without a prohibition, advocates of the rule said, using “demeaning and misogynistic terms and actions to undermine opposing counsel and others too often does not have consequences.”  “A sexist remark,” said the Judge Paul S. Grewal of the U.S. Federal District Court in San Jose, California, “is not just a professional discourtesy, although that in itself is regrettable and all too common.”

Lev Craig

Last week, we reported on groundbreaking equal pay legislation that was recently passed in Massachusetts. Yesterday, the U.S. women’s soccer team played their last match of the 2016 Olympics, but are still competing for equal pay in an ongoing case against U.S. Soccer, the entity that manages and pays the U.S. women’s team.

Unlike other U.S. sports leagues, such as the NBA and the WNBA, whose men’s and women’s teams are controlled by separate organizations, the U.S. men’s and women’s soccer teams are both run by U.S. Soccer. However, the two teams are treated very differently, particularly in terms of their compensation, which has been an ongoing source of friction between U.S. Soccer and the the women’s team. In March, five players on the U.S. women’s soccer team filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that U.S. Soccer had discriminated against female players by paying them less than their male counterparts.

Owen H. Laird, Esq.

On Thursday, August 11, 2016, Mayor Bill De Blasio signed into law a bill requiring a variety of New York City facilities to provide a lactation room for nursing mothers.  Facilities that now must provide a lactation room to the public include city job centers, the offices of the Administration for Children’s Services, and centers operated by the Department of Health and Mental Hygiene, among others.  These rooms must be equipped with a chair, an electrical outlet, and access to running water.

This new law is intended to provide protection for women who are harassed or retaliated against for nursing their children or otherwise expressing breast milk.  The law signed on Thursday complements several other laws passed by New York City protecting nursing women; two of the more significant existing laws are New York Civil Rights Law § 79, which protects a woman’s right to breastfeed in public, and New York State Labor Law § 206-c, which requires employers to provide time and space for nursing women to express milk.  While New York State was at the vanguard on this issue when it passed the above laws in 1994 and 2007, respectively, federal law has since caught up; in 2010, Congress amended the Fair Labor Standards Act (as part of the passage of the Affordable Care Act, more commonly known as “Obamacare”) to include a provision requiring employers to provide breaks and space for recent mothers to express breast milk.

Edgar M. Rivera, Esq.

In Perez v. The City of New York, the Second Circuit analyzed what factors were relevant for a district court to determine whether an employer must compensate its employee for time spent putting on and taking off (“donning and doffing”) their uniforms.  Vacating the district court’s decision that donning and doffing of uniforms were not compensable activities under the Fair Labor Standards Act (FLSA), the Perez court found that it could not determine as a matter of law that the donning and doffing of uniforms were not “integral and indispensable to [plaintiffs’] principal activities.”  Plaintiffs, Assistant Urban Park Rangers, claim that defendants—the Parks Department and its Commissioner, along with the City of New York and Mayor de Blasio—provided inadequate compensations for their work by, among things, failing to pay wages for time spent donning and doffing their uniforms before and after each shift.

Assistant Urban Park Rangers are required to wear uniforms comprising both professional clothing and equipment.  The professional clothing includes “olive drab” pants and jacket, ranger-style hats, and various Parks Department insignias; the equipment includes a bulletproof vest and a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.  The plaintiffs estimate that to don and doff those uniforms takes five to thirty minutes each day.

Lev Craig

Despite major societal advances in gender equality in the past several decades, pay disparities between men and women are still a pervasive problem in American workplaces. In 2014, the median earnings of women who worked full-time were 83 percent of those of their male counterparts, according to the Bureau of Labor Statistics. Last week, in an important step towards eliminating gender-based compensation inequities, Massachusetts enacted bipartisan legislation that has been called “one of the strongest equal pay bills in the nation.”

There are already several federal statutes in place that are intended to establish equal pay for employees of all genders: The Equal Pay Act of 1963 (“EPA”) prohibits employers from paying unequal wages to men and women who perform substantially equal jobs, and Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act forbid compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. However, the new Massachusetts law has notable differences from these federal statutes, including an entirely unique provision concerning an employer’s ability to ask about a prospective employee’s history of compensation.

Owen H. Laird, Esq.

On March 25, 2016, we reported on landmark lawsuits filed by the Equal Employment Opportunity Commission (“EEOC”) in a blog titled “EEOC Files Landmark Lawsuits Alleging Sexual Orientation Discrimination Under Title VII.” In these cases, the EEOC asserted claims of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) on behalf of workers.  Title VII provides the basic anti-discrimination protection that most employees in the United States enjoy.  These new cases are significant because they mark a departure from the previous interpretation of sexual orientation under Title VII: treating sexual orientation as a protected characteristic under Title VII where it previously had not been viewed as such.

Title VII protects against discrimination on the basis of sex. The EEOC asserted that sexual orientation claims constitute a form of sex discrimination, arguing that sexual orientation and sex are inherently linked and that sexual orientation discrimination involves gender stereotypes and adherence to gender norms. While some states and municipalities have enacted laws explicitly protecting against sexual orientation discrimination, the EEOC’s expansion of Title VII brought these protections to millions of American workers who do not live in regions with state or local anti–sexual orientation discrimination statutes.

Edgar M. Rivera, Esq.

Women often are the victims of gender discrimination when they apply for traditionally “male” jobs. This type of gender discrimination is particularly pernicious because it is a vicious cycle: a “man’s job” is a “man’s job” because men tend to do it, which discourages interested women from applying because doing so goes “against their sex.” Thus, when women inevitably do not apply, the job remains only a “man’s job.” According to the World Bank, “Gender segregation in access to economic opportunities in turn reinforces gender differences in time use and in access to inputs, and perpetuates market and institutional failures.”  As a result, women—especially those less educated who live in poorer regions—face greater challenges than men finding work and supporting themselves and their families.

To fight these market and institutional failures in the United States, Congress enacted Title VII of the Civil Rights Act of 1964, which prohibits discrimination against women in employment. Enforced by the U.S. Equal Employment Opportunity Commission, Title VII is the U.S.’s principal defense against sex discrimination.

By Lev Craig

On April 13, we wrote about North Carolina’s Public Facilities Privacy & Security Act, more commonly known as “HB 2,” in a blog titled “North Carolina Passes a Controversial Law That Overturns City Anti–LGBT Discrimination Laws.” HB 2 establishes that public schools and public agencies are required to segregate restrooms by biological sex, defined by the statute as the sex listed on an individual’s birth certificate. Consequently, HB 2 effectively denies many transgender people the right to use the bathroom consistent with their gender identity, as a transgender person’s gender presentation is likely to differ from the sex indicated by their birth certificate. The National Transgender Discrimination Survey, the most comprehensive and large-scale survey of transgender Americans to date, found that only 24% of respondents had been able to update their birth certificate to reflect their gender identity.

On March 23, HB 2 was passed in a special session of the North Carolina General Assembly (the first called by the state’s legislature in 35 years), where the bill was introduced, debated, and voted upon over the course of just 12 hours. On May 9, the United States filed suit against the state of North Carolina, Governor Pat McCrory, the North Carolina Department of Public Safety, and the University of North Carolina and its Board of Governors, alleging that the bathroom regulation provision of HB 2 violates Title VII, Title IX, and the Violence Against Women Reauthorization Act of 2013.

Owen H. Laird, Esq.

On July 26, 2016, the New York Times reported on allegations of improper employment practices concerning Bridgewater Associates, an organization commonly considered to be one of the largest hedge funds in the world, if not the single largest. The Times article refers to a complaint filed against Bridgewater by a Bridgewater employee with the Connecticut Commission on Human Rights and Opportunities, a complaint filed against Bridgewater by the National Labor Relations Board, and interviews with former Bridgewater employees.

The article describes a culture of surveillance and control at Bridgewater, with video and audio recordings, security patrols, and even some employees who are required to lock up their phones before heading to their desks. In and of itself, such allegations would not be surprising. Hedge funds are notoriously secretive and controlling over their internal goings-on and strive to protect any advantage they might have over the competition; policies and practices intended to protect internal information are the norm in the financial industry.