NLRB General Counsel Advice Memorandum Is “Uber” Favorable For Gig Economy Companies Utilizing Independent Contractors (US)

In a recently-released Advice Memorandum dated April 16, 2019, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel (“GC”) determined that drivers utilizing Uber Technologies’ smartphone application-based rideshare platform are independent contractors, not employees, under the National Labor Relations Act (“NLRA”).  In arriving at this conclusion, the GC utilized the independent contractor test announced earlier this year in the NLRB’s decision  SuperShuttle DFW, Inc., which we reported about here.  In SuperShuttle, the NLRB reinstated the common law agency test, a ten-factor test in which no one factor is determinative.  Applying those factors in the Uber memorandum, the GC noted that the overarching principal to consider under the SuperShuttle test is a worker’s “entrepreneurial opportunity” – workers who have significant control over their profits and losses are likely independent contractors.  For commercial transportation companies, the GC noted that entrepreneurial opportunity can best be assessed by analyzing the company’s control over how workers perform their work, and how worker compensation relates to the fares collected.  Continue Reading

New York City and New Mexico Protect Employees Who Are Medical Marijuana Users (US)

Medical MarijuanaNew York City

New York City has enacted a first-of-its kind law (Intro. No. 1445-A) prohibiting pre-employment drug testing for the presence of marijuana or tetrahydrocannabinols.

The law makes it an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee “to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”

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EEOC Will Begin Collecting 2017 and 2018 Pay Data from Employers in Mid-July 2019 (US)

Money, finance, business conceptA federal judge recently ordered that the Equal Employment Opportunity Commission (“EEOC”) collect two years of Component 2 EEO-1 data, including employees’ hours worked and W-2 compensation information, from employers with 100 or more employees (and federal contractors with 50 or more employees) by September 30, 2019 (see our post here).  The agency was given two options: (1) require employers to provide 2017 pay data in addition to the 2018 data by September 30, 2019; or (2) require that 2019 pay data be submitted in the Spring of 2020.

In response, the EEOC somewhat surprisingly chose the former and released a Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection for Calendar Years 2017 and 2018 on its website in which the agency indicates that it expects to begin collecting 2017 and 2018 pay data from employers in mid-July 2019.  The agency will notify filers of the precise date the survey will open as soon as it becomes available.  In the meantime, employers should begin gathering and organizing their employees’ 2017 and 2018 pay data in order to prepare for the EEOC’s fast-approaching deadline. Continue Reading

U.S. Department of Labor Says “Gig Economy” Workers Are Independent Contractors, Not Employees (US)

On Monday, April 29, 2019, the United States Department of Labor (“DOL”) Wage and Hour Division issued an opinion letter in response to an inquiry from an anonymous “virtual marketplace company” (“VMC”) concerning whether individuals who provide services through the VMC (“service providers”) are employees or are independent contractors for purposes of federal wage and hour laws.  As defined by the DOL, a virtual marketplace company is “an online and/or smartphone-based referral service that [through a technology platform] connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services.”  VMCs are part of the expanding “gig economy,” and include familiar companies such as Uber, Lyft, Postmates, Fiverr, and others.  Continue Reading

Title VII And LGBT Discrimination: The Path To The High Court (US)

Expanding on her previous post on the subject, on May 1, 2019, Law360 published the following expert analysis authored by Squire Patton Boggs labor and employment attorney Melissa Legault.

After 11 private conferences during which the U.S. Supreme Court justices debated whether to hear the cases, the Supreme Court granted certiorari[1] in three cases involving the extent of protection — if any — provided by Title VII of the Civil Rights Act of 1964 against employment-based discrimination on the basis of sexual orientation and gender identity. The court consolidated the two sexual orientation cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, and allocated a total of one hour for oral argument for both cases.  Continue Reading

New York City and California Take Aim at Hairstyle-Based Discrimination (US)

Both New York City and California have recently taken steps to ban hairstyle-based discrimination.  On Monday, April 22, 2019, the California State Senate passed the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), which seeks to amend California’s anti-discrimination statute, the California Fair Housing and Employment Act (“FEHA”).   The CROWN Act, if passed by the State Assembly, would modify FEHA’s definition of “race” to expressly include “traits historically associated with one’s race, such as hair texture and protective hairstyles.”  Protective hairstyles are those that allow the wearer to avoid regular and harmful hair treatment, such as hair relaxers, and include cornrows, braids, and locks.

Earlier this year, in February 2019, the New York City Human Rights Commission (“HRC”) issued a guidance memorandum clarifying that the City’s anti-discrimination law already prohibits hairstyle-based discrimination.  The guidance memorandum states that the City’s anti-discrimination law protects people’s right to maintain “natural hair, treated or untreated … such as locks, cornrows, twists, braids, Bantu knots, fades, Afros, and the right to keep hair in an uncut or untrimmed state.” Continue Reading

New Advertising Standards guidance for employment and agency roles (UK)

Everyone knows that carelessly-phrased job advertisements can come back to bite you, usually through an unsuccessful candidate who is disappointed because he didn’t get the job, but sometimes also from the successful applicant who is disappointed because he did, and it is not what he thought it was.

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Federal Court Confirms September 30, 2019 Deadline for Employers to Submit EEO-1 Pay Data (US)

Piggy bankAs we previously reported here, on April 3, 2019, the White House Office of Management and Budget (“OMB”) filed a brief with the U.S. District Court for the District of Columbia proposing a September 30, 2019 deadline for the EEOC to complete collection of the required 2018 EEO-1 pay data forms. The brief was filed in response to a March 4, 2019 court order lifting a 2017 stay of pay data collection, which had been implemented to allow for further review of the burdens associated with pay data collection.

On April 25, 2019, in a ruling from the bench, a federal judge approved the September 30, 2019 deadline.  This means that employers with 100 or more employees (and federal contractors with 50 or more employees) will be required to report their employees’ 2018 W-2 compensation information and hours worked by September 30, 2019.  The goal of the collection is to reduce pay gaps based on sex, race, and ethnicity.  Remember, the deadline to submit all other EEO-1 data, such as race and gender information, remains May 31, 2019.

US Supreme Court Rules That Agreement to Class-Based Arbitration Procedures Must Be Explicit  

Supreme Court BuildingThe Court’s ruling in Lamps Plus, Inc., et al. v. Varela is the latest in the Court’s ongoing pro-employer, pro-arbitration jurisprudence

As we first reported here, the United States Supreme Court’s docket this term includes three significant cases interpreting various aspects of the Federal Arbitration Act (“FAA”).  Earlier this year, the Court ruled in the first of those cases, Henry Schein, et al. v. Archer & White Sales, Inc. (see our discussion here), holding that the FAA does not contain a “wholly groundless” exception and that courts cannot disregard a provision in an arbitration agreement delegating authority to the arbitrator.  In the second case, New Prime Inc. v. Oliveira (see our discussion here), the Court held that the FAA’s exemption for interstate transportation workers applies to all such workers, regardless of their classification as an employee or independent contractor.

Unlike these first two FAA cases, in which the Court ruled unanimously, the third case, Lamps Plus, Inc., et al. v. Varela, split down the Court’s ideological lines.  The case involved a question left open following the Court’s 2010 decision in Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., in which the Court held that because arbitration under the FAA is strictly a matter of consent, a party cannot be compelled to arbitrate on a class-action basis if the parties’ agreement to arbitrate is silent on the issue of class arbitration.  In Lamps Plus, the issue before the Court was whether an agreement that is not silent but instead is ambiguous on the issue of class arbitration can be construed by a court to permit class arbitration.  Continue Reading