New Labor Rule Means Gig Economy Workers In Texas Can't Get Unemployment Benefits

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Last month, the state’s labor regulator approved a controversial new rule on gig economy workers – a rule opponents say will have negative implications for these workers going forward.

Approved on a 2-1 vote, the rule from the Texas Workforce Commission exempts app-based companies that hire contractors – like TaskRabbit or DoorDash – from paying state unemployment insurance taxes for those workers. The three-member commission gave initial approval for the rule in December.

Labor unions and workers advocates say the new rules were tailor-made by lobbyists from a firm called Handy. The agency has defended its rule-making process, saying it is well within its legislatively appointed rights to rule on employment matters and that, per state law, it allowed 30 days of public comment before initially adopting the rules. Opponents have said the rules could incentivize companies to abandon brick-and-mortar businesses to avoid paying those state unemployment taxes.

The risk is that the rule would likely reclassify many construction workers as independent contractors, leaving them without those protections for wage theft and discrimination on job-sites.

Read more: KUT Article

Jury awards $3.8M to woman; Employer argued her breastfeeding schedule was 'excessive'

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An Arizona jury has sided with a breastfeeding paramedic, awarding the nursing mother $3.8 million for her lawsuit alleging she wasn't provided a lactation space as required by federal law.

Carrie Ferrara Clark sued the City of Tucson Fire Department, alleging that it violated federal employment laws when it failed to provide her with an appropriate lactation room on a consistent basis and when it retaliated against her for complaining about the issue. Her lawsuit alleged that the fire department's scheduler said he didn't believe she deserved any special accommodations. The HR manager also recommended that she use fire chiefs' and captains' bedrooms for pumping as needed, but Clark explained that waking up her supervisors every 2 to 3 hours seemed unreasonable. HR then told her "your pumping seems excessive to me.” When she tried to explain that such a schedule was normal for a newborn, the HR manager replied "well, it seems to me that you're not fit for duty."

A jury found the employer liable for discrimination and retaliation, awarding her $3.8 million. It found, among other things, that the employer discriminated against her because she was breastfeeding and that it assigned her to fire stations that did not have a space that complied with federal requirements for expressing breast milk.

The Fair Labor Standards Act (“FLSA”) states that employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

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Does the ADA Require Business Websites to be Accessible?

Domino’s Seeks SCOTUS Review

Domino’s Seeks SCOTUS Review

In January the Ninth Circuit Court of Appeals issued a decision allowing a blind plaintiff to proceed with his ADA Title III lawsuit against Domino’s Pizza for having an allegedly inaccessible website and mobile app.  The court determined that allowing the claim to move forward was not a violation of Domino’s due process rights, even though the ADA and its regulations contain no definition of, or technical specifications for, “accessible” public accommodations websites. It now appears that Domino’s is planning to try to take the issue to the U.S. Supreme Court.

Domino’s recently requested a 60 day extension of time to file a petition with the Supreme Court asking for it to review the case. The request was granted by Justice Kagan. Domino’s Petition for Certiorari is now due on June 14, 2019.

This is an important issue to many. From the business-side of the fence, companies are facing an increasing number of lawsuits relating to the accessibility of their websites while they have not received much guidance from the courts or the Department of Labor as to what they are required to do in order to make their websites properly accessible. For those with certain disabilities, the transition of much or our day-to-day commerce from brick and mortar stores to the online world has increasingly left them out.

It is an important issue that deserves attention from both the courts and the Department of Labor.

Read Domino’s Motion Here.

Women “Treated Like a Piece of Meat” at the V.A.

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The New York Times had an enlightening, if disheartening, article this past week about the rampant sexual harassment that female veterans face when they attempt to obtain medical care at the V.A.

An entrenched, sexist culture at many veterans hospitals is driving away female veterans and lags far behind the gains women have made in the military in recent years, veterans and lawmakers of both parties say. Although the Department of Veterans Affairs has scrambled to adjust to the rising population of female veterans and has made progress — including hiring more women’s health care providers, fixing basic privacy problems in the exam rooms and expanding service to women in rural areas — sexual harassment at department facilities remains a major problem.

Women say it is galling that such a demeaning atmosphere persists, especially for the roughly 30 percent of female veterans who have reported being harassed or assaulted while serving in the military.

Read the whole article here….

Flight Attendants File EEOC Charge Alleging American Airlines Discriminates Against Women

AA Accused of Discrimination

AA Accused of Discrimination

The union that represents more than 27,000 American Airlines flight attendants has filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging that the airline's attendance policy discriminates against women. The flight attendants charge that the attendance policy "fast tracks" flight attendants — a group that is 75% female — to potential discipline and discharge actions, while pilots — who are overwhelmingly male — are not subject to the policy.

This type of case is called a “disparate impact” case. Employment actions and policies can be problematic even if they do not intentionally discriminate against a protected group of workers. The law recognizes both "disparate treatment" discrimination (intentional acts of overt discrimination) and "disparate impact" discrimination (neutral policies and practices that have a disproportionate, adverse impact on a protected group and that cannot be justified by business necessity).

While disparate impact cases can come up with regard to any protected class (in this case, gender) they actually most often arise in the context of alleged age-based discrimination. Layoffs are often alleged to be based on age — a layoff targeting high-earning employees might have a disproportionate impact on long-tenured employees who happen to be older, for example. Similarly, recruiting efforts that focus on college campuses might unfairly exclude older workers.

Read More…

IKEA Hit with Yet Another Age Discrimination Lawsuit

IKEA Hit with 5 Age Discrimination Lawsuits

IKEA Hit with 5 Age Discrimination Lawsuits

Alleging the company discriminates against its older employees and fosters a "corporate culture of age bias," IKEA is the target of a newly-filed class action lawsuit (Paine v. IKEA Holding US, Inc. et al., No. 19-cv-00723 (E.D. Pa. Feb. 21, 2019)). Since February 2018, at least five current and former employees have filed lawsuits against IKEA alleging age discrimination.

The lawsuits have all been filed in a period of just over a year. And they all argue that Ikea has fostered a workplace culture of discrimination, which systematically recruits and promotes young talent rather than workers over 40. The problem is alleged to have become even worse, once the company began an aggressive restructuring effort in 2017.

Whether protected-age job seekers can pursue lawsuits under the federal Age Discrimination in Employment Act without showing the alleged bias was intentional is a question on which federal courts are divided. The U.S. Supreme Court in 2017 declined to consider the issue in a case against R.J. Reynolds, leaving in place a holding by a federal appeals court in Atlanta that the ADEA doesn’t permit disparate impact or unintentional bias claims by job applicants. But a federal district court in California reached the opposite conclusion in a case against PricewaterhouseCoopers. Ultimately, this split in the circuits will have to be decided by the U.S. Supreme Court.

Age discrimination as a part of a large company restructuring can often be something that appears obvious while being simultaneously very difficult to prove. To make matters even more challenging, companies often offer severance packages to those being laid off, giving them only a few weeks to consult with an attorney and consider the issues.

If you find yourself the subject of a proposed layoff and you believe you may have been targeted due to your age (over 40) or if you have been given a severance agreement to review and consider, start looking for a qualified employment lawyer right away. Finding a qualified employment attorney who represents employees rather than companies may be more challenging than you think. In Texas, a good place to start is the Find-A-Lawyer page of the Texas Employment Lawyers Association. In other states, I would suggest you start with the National Employment Lawyers Association. Both groups feature lawyers who represent employees rather than employers and both have a lot of good information available for you to review and consider.