Today’s News & Commentary — July 11, 2017

As reported by the New York Times, the Trump administration (the Department of Homeland Security) announced that it would delay, and likely forgo altogether, implementing a federal rule which would have allowed foreign entrepreneurs to come to/stay in the United States to start companies.  According to the announcement, the International Entrepreneur Rule was delayed in order to “provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule.”  The announcement was not well-received by many business leaders.  The president of the National Venture Capital Association (NVCA) called the announcement “disappointing,” and described it as “represent[ing] a fundamental misunderstanding of the critical role immigrant entrepreneurs play in growing the next generation of American companies.”

As we mentioned last week, on July 5, 2017, Washington State’s Governor, Jay Inslee, signed SSB 5975 into law.  The law guarantees paid family and medical leave, providing benefits of up to 90% of the employee’s income (matching D.C. in providing the highest percentage of income benefits of any state or district).  Under the law, employees who have worked at least 820 hours in the past year will be eligible for up to 12 weeks of paid family leave to care for a new child or sick family member.  Employees will also be entitled to up to 12 weeks of paid leave to manage their own serious health issues.  Employees will be able to, under certain circumstances, combine family and medical leave to receive up to 16 weeks of paid leave.  Finally, employees who experience pregnancy-related complications will be able to receive up to 18 weeks of paid leave.  Washington’s program, which will take effect in 2020, will be funded by both employers and employees.  Upon enacting this law, Washington became the fifth state to enact a state paid family and medical leave act.  D.C. has also adopted a paid leave program in its jurisdiction.  OnLabor has covered similar state enactments in the past (see here and here).

Today, oral argument takes place in Amanda Frlekin et al v. Apple.  The case is on appeal to the Ninth Circuit.  In this class action, plaintiff-employees argue that they should be paid for the time they spend at the end of their shifts undergoing anti-theft bag searches.  The employees lost below—U.S. District Judge William Alsup (in the U.S. District Court for Northern California, San Francisco) rested his ruling in part on the fact that employees could choose not to bring a bag to work, and thus obviate the delay of a bag search.  In a similar case, Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), SCOTUS held that bag checks were not compensable activity because they were not an “integral and indispensable” part of the employees’ job responsibilities.  However, in Miranda v. Coach, Inc., 2015 WL 1788955 (N.D. Cal. 2015), the court held that Busk did not apply to California labor law.  Thus in Frlekin, the favorable outcome to Apple was based on the judge’s finding that employees were not “suffered or permitted” to work during bag checks.

The New York Times profiled economist Michael Mandel’s (Progressive Policy Institute) view that the rise of e-commerce is creating net jobs.  That is, that as e-commerce surpasses brick-and-mortar retail in the economic landscape, it is creating more jobs than it is displacing.  What’s more, Mandel’s “unorthodox” position asserts that these new jobs are higher-paying than traditional retail jobs.  As the profile points out, other economists are skeptical of Mandel’s position.  At the very least, the tension captures the existing anxieties, which we’ve previously covered, about the future of jobs as automation and other labor-saving technologies become increasingly prevalent.

GPS Tracking of Employee Devices: How Much is Too Much?

The distinction between work and leisure time has become increasing hard to identify. As other authors on the blog have demonstrated, technology plays a huge role in collapsing this distinction. Perhaps more disturbing than always being on call is the idea that employers can track employee’s physical whereabouts using GPS tracking. Employers have, with relatively little controversy, frequently placed GPS trackers on employee vehicles. But as electronic devices become more central to employee’s day to day work, employers have taken to tracking these devices as well. Courts have yet to consider GPS tracking of electronic devices, but challenges to these practices are beginning to come before courts.

Arias v. Intermex Wire Transfer is one of the first challenges to GPS tracking of employee smartphones. Intermex required all employees install an app, Xora, which contained a GPS function that allowed the company to track employee’s whereabouts. The plaintiff asked her supervisor whether employee actions off the job would also be tracked. The supervisor told her off duty whereabouts would be tracked, and confirmed that the plaintiff was expected to keep her phone on 24/7 to answer any calls from clients. The plaintiff told her supervisor she was fine with the tracking while she was on duty, but expressed discomfort with being tracked when she was off duty and during the weekends. Plaintiff claims that many other co-workers agreed with her. Ultimately, the plaintiff decided to uninstall the app, and was reprimanded for doing so. A few weeks after uninstalling the app, the plaintiff was fired. Arias sued Intermex for invasion of privacy, violations of the California Constitution and California Labor Code, wrongful violation, and unfair business practices, among other things. The case ultimately settled out of court.

Courts will undoubtedly be hearing more cases like Intermex. Unfortunately, state and federal laws are unlikely to provide much guidance. Consequently, courts will likely have to look to other analogous employer tracking contexts, like cars, to determine how they should address electronic device tracking.

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Today’s News & Commentary — April 19, 2017

The New York Times weighs in on the effect that Trump’s “Hire American” order may have on tech worker visas.  According to the Times, the order “represents a small win for bigger tech companies,” but may hurt smaller technology companies that “cannot afford to pay high salaries and are already struggling to attract talent.”  Senator Schumer, however, had a different take: “This does nothing,” he said. “Like all the other executive orders, it’s just words — he’s calling for new studies. It’s not going to fix the problem. It’s not going to create a single job.”

Is O’Reilly no longer a factor?  That’s the question being asked at Politico, which cites the Wall Street Journal’s report that Fox News “is preparing to cut ties with . . . O’Reilly.”  Since an April 1 New York Times story broke the news that Fox had paid out about $13 million to settle sexual harassment allegations against O’Reilly, pressure has been mounting on Fox to fire its biggest star.

As the New York Times puts it, “[t]he threat of a Hollywood strike is getting real.” Members of the Writers Guild of America will begin voting today on whether to authorize a walkout.  If members approve a strike, it could have “serious implications.” When writers went on strike a decade ago, it cost the Los Angeles economy an estimated $2.5 billion, affecting everyone from the writers themselves to caterers, limo drivers, and florists.  As for how a strike would affect viewers, the Times explains that late-night comedy shows would screen reruns, some scripted series would be delayed, and daytime soap operas would probably end (unless producers bring in non-union writers).  A strike might also speed the shift from network viewing to Netflix and Amazon.

Gender Equality at Work Requires More Than Corporate Tokenism

Last month, a Fusion article warned women to beware of “the guy who talks a big game about gender equality… then turns around and harasses you, assaults you, or belittles you,” coining the term, the “woke misogynist.” The same warning can be made about corporate gestures toward gender equality. In an age where feminism is cool, it now takes more scrutiny to discern the genuine from the superficial. Many businesses are relying on their image as hip, progressive organizations to appeal to socially-conscious consumers by making statements about equal pay, donating to the ACLU, or appointing a handful of women to their boards. Yet, so many of these companies continue to foster systemic cultures of sexual disrespect, harassment, and assault.

Sex Discrimination in the Workplace

Multiple accounts of sexual harassment have recently come to light in the tech industry. Susan Fowler’s February blog post revealed the rampant sex discrimination and harassment she faced while an engineer at Uber. She recounted her experience with the HR department, which retaliated against her for making complaints and refused to take action against her “high performing” harasser. She says the number of women in the organization dwindled from 25% to 6% while she was there. Another survivor came forward with her account a few weeks later under the alias Amy Vertino, detailing similar backlash for reporting the sexist behavior of her colleagues. She reports Uber CEO Travis Kalanik “is well known to protect high performing team leaders no matter how abusive they are to their employees.”

Sex discrimination in employment is not unique to Uber. The tech industry averages 21-22% female employees. 60% of women in tech report being sexually harassed in the workplace. The hostile environment both creates barriers for women entering the tech industry and also causes them to leave the field at alarming rates, 45% higher than men. After reading Fowler’s blog, The Observer reached out to women in tech and, within a few hours, had twelve more personal accounts of workplace sexual harassment. Allison Esposito, the founder of Tech Ladies, said they hear similar stories at least once a week. A female engineer recently filed a lawsuit against Tesla for failure to take action against the pervasive harassment. TechCrunch conducted a number of anonymous interviews that further evince the rampant mishandling of sexual harassment complaints in the industry.

Even beyond tech, the core issue is that sexism pervades male-dominated industries. The culture reflects the leadership, and as Rachel Bitte, chief people officer at Jobvite, explains, “tech is the newest industry to see male dominance in leadership roles, but we saw the same sort of problems that resulted in lawsuits decades ago in industries such as manufacturing or mining.”

The financial industry is also struggling to increase diversity and address discrimination. 25% of companies on the Russell 3000 index have no women on their boards. According to an SEC report of Fortune 500 companies, women and minorities held 30.8% of corporate board seats in 2016, which the Alliance for Board Diversity criticized as not moving fast enough. Increasing board diversity requires planning, they counseled, given that the board is often a reflection of the lack of diversity in the rest of the company.

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Today’s News & Commentary — March 22, 2017

According to the New York Times, Portland, Maine will try a new tactic to deal with panhandlers: hire them. After Portland’s previous efforts — which included outlawing begging and bulldozing a strip in the middle of a road that had proved popular with beggars — were struck down by the First Circuit as infringing on people’s First Amendment rights and proved ineffective, respectively, city officials adopted a new tactic.  In April, Portland will hire a few panhandlers a day, pay them the city’s minimum wage of $10.68 an hour, and assign them to clean parks and public spaces. Several other cities have already successfully adopted a similar approach, and Portland is following their lead.  A year and a half ago, for example, Albuquerque instituted a jobs program that pays $9 an hour.  The program has created 1,750 jobs and led to the removal of over 60 tons of litter.  The jobs program in Portland will function similarly to the one in Albuquerque.

Alexander Acosta appears before the Senate HELP Committee today.  Politico weighs in on the issues expected to arise: politicized hiring at the DOJ, voting rights, Acosta’s role in Jeffrey Epstein’s plea deal, and DOL regulations governing retirement advice and overtime eligibility.

CNBC and Business Insider report that Goldman Sachs will move jobs out of London and bulk up its European presence by “hundreds of people” as it executes its Brexit contingency plans.  Richard Gnodde, the CEO of Goldman Sachs International, explained that the plans will “be a combination of things. We’ll hire people inside of Europe itself and there will be some movement.”  Goldman plans to invest in infrastructure, systems, and technology, and the movement away from London will “not necessarily result in a net reduction of workers in the U.K.”

Educating America’s Twenty-First Century Workforce

The nature of work in America is changing, with increasingly sophisticated automation, advanced digital platforms, and other technological innovations serving as a catalyst.  And these transformations are only adding to the challenges facing the American labor force and its readiness to succeed at work, especially younger workers who are relying on their secondary educations to jump-start their careers.  In a survey released by Achieve in 2005, employers estimated that about 39 percent of high school graduates were unprepared to meet entry-level job expectations, and the same percentage of recent graduates in the labor market found “gaps” in their workforce preparation.  Even more notable, employers in the same survey estimated that about 45 percent of recent graduates in the workforce were not prepared to advance in their companies beyond entry-level positions, a problem that at the time resulted in millions of job openings that companies are unable to fill with the right people.  A similar 2011 study by researchers at Johns Hopkins University and the University of Arizona found similar results, with about 40 percent of high school graduates unprepared for career training.

And these numbers could become even more stark as technology continues to impact the labor landscape, leaving millions of Americans without the skills necessary to secure and maintain employment.  For instance, technological advancements will increasingly polarize “labor-market opportunities between high- and low-skill jobs, unemployment and underemployment (especially among young people), and stagnating incomes for a large share of households.”  Moreover, while automation “brings the promise of higher productivity, increased efficiencies, safety, and convenience,” it also carries the danger — continually increasing as robotics and artificial intelligence advances — of job displacement and depressed wages.

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The Right to Disconnect

In the digitally connected workplace, it’s not easy to be “off the clock.”  Email — coupled with the widespread use of smartphones — has made many employees available at a moment’s notice.  In the United States, one in three full-time workers check their work email “frequently” outside of normal working hours.  Many report checking their inbox at the dinner table, or even in the middle of the night.  The 9-to-5 job is becoming more like 24/7.

This breakdown of work/life boundaries has led to strong calls for reform.  France recently enacted a new law establishing “the right to disconnect” outside of work hours.  And some companies have already banned the use of email when workers are off-duty.  These efforts signal an important shift in attitudes toward work-life balance.  But the problem of workplace technology is more complicated than these solutions might suggest.  “Work-life balance” looks different for different individuals.  In an attempt to strengthen the boundaries between the professional and the personal, policies insisting on a “right to disconnect” could be making those boundaries too rigid for workers who seek flexibility instead.

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