In Australia, where the gender pay gap among full-time employees currently stands at a little under 15 percent, the opposition Labor Party wants to push this number downward by requiring large companies to publish their gender pay gaps, as the UK and some other European countries already do. In a statement issued on Sunday, deputy opposition leader Tanya Plibersek and Labor’s employment spokesman Brendan O’Connor noted that Australian women working full-time earn about $27,000 per year less than their male colleagues on average, the Guardian reported:
“We must do better,” it said, adding that a Labor government under Bill Shorten would “act to shine a light on the gender pay gap in Australian companies”. Labor would also change the Fair Work Act to prohibit pay secrecy clauses and require the Workplace Gender Equality Agency to publish a list showing whether large companies had undertaken and reported a gender pay gap audit.
Companies already report their gender pay data to the Workplace Gender Equality Agency but Labor would make it public, the statement said. “People will be able to search a gender pay equity portal to find out a company’s overall pay gap, and the pay gaps for managerial and non-managerial staff.”
The Australian Council of Trade Unions backed the proposal, saying it would improve employees’ bargaining power and prevent employers from retaliating against employees for discussing their pay with each other. Prime Minister Scott Morrison, however, pushed back on the proposal, arguing that it might generate problems in the workplace and not actually help close the pay gap.
“You’d want to be confident you’re not setting up conflict in the workplace,” he said. “I don’t want to set one set of employees against another set of employees.” Morrison also pointed out that the country’s gender pay gap had decreased from 17.2 percent to 14.5 percent under his Liberal Party–National Party coalition government, whereas it had grown the last time Labor was in power. Nonetheless, Morrison said in a press conference that he was “open-minded” about the proposal.
A recent court ruling has added to the small but growing pile of jurisprudence at the intersection of marijuana legalization and labor law. In a decision handed down on September 5, a federal court in Connecticut found that Bride Brook, a federal contractor, had run afoul of that state’s Connecticut Palliative Use of Marijuana Act (PUMA) by rescinding a job offer to Katelin Noffsinger, a medical marijuana user, after she tested positive on a pre-employment drug test. The court granted summary judgment to Noffsinger but declined to award her attorney fees or punitive damages, Jackson Lewis attorney Kathryn J. Russo explains:
Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA’s anti-discrimination provision (when “required by federal law or required to obtain federal funding”). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The court rejected Bride Brook’s argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. …
Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user’s protection under the statute a nullity.
While possession and sale of the drug remain illegal under federal law, as more states relax their prohibitions on either medical or recreational marijuana, this has created legal conundrums for employers, who must rethink their zero-tolerance drug policies lest they end up in the same situation as Bride Brook.
The March 2019 deadline for negotiating terms for the UK’s departure from the European Union is fast approaching, while major points of contention between London and Brussels still remain to be ironed out. While the likelihood of a “no-deal” Brexit, in which the UK would crash out of the EU with no special trade arrangements, is generally considered low, the final outcome remains uncertain with just six months to go, so British companies like London-based financial firms have been taking steps to prepare for that contingency. At the same time, European manufacturers operating in the UK have made clear that they might have to pull out of the country if the deadline passes without a deal, as the removal of the UK from the European customs union would be hugely disruptive to their supply chains.
At the same time, Europeans already living legally in the UK have been assured that they will be allowed to remain under any deal, but it is less clear what will happen to them if there is no deal. Trade unions and other labor groups have also expressed concern that Brexit could mean a reduction in the rights employees enjoy under labor laws grounded in EU policies. The bill drafted last year for removing the UK from the legal, political, and financial institutions of the EU preserves regulations derived from European labor laws, but employee advocates still fear that a weakening of these rights is in the pipeline; the possibility of a no-deal outcome compounds those suspicions.
In the past week, the government has issued several statements meant to reassure employees and employers that a no-deal Brexit remains unlikely and will have no such dire consequences if it does occur. A guidance document issued last week as part of a series of advice papers concerning a potential no-deal Brexit addressed the issue of workers’ rights, saying there would be no change to these protections in any event, Personnel Today reported:
[T]he government said domestic legislation already exceeds the level of employment protection provided under EU law. It intends to make small amendments to the language of workplace legislation to reflect that the UK will no longer be a member of the EU. No policy changes will be made.
Deliveroo, an Uber-like platform that connects restaurants with delivery workers, is one of several UK companies whose employment practices have been the subjects of public scrutiny and litigation over the past two years as the country wrestle with the contradictions between its existing labor laws and the rise of the “gig economy.” Deliveroo was sued last year by the Independent Workers Union of Great Britain (IWGB), which argued that delivery couriers working through its platform were not self-employed independent contractors as the company contended. While plaintiffs in other gig economy classification suits have succeeded in the British court system, Deliveroo prevailed last November, when the Central Arbitration Committee found that its delivery workers were indeed self-employed, because they had a contractual right to allocate a substitute to do the work for them.
The IWGB appealed to the High Court of Justice, however, from which the union secured a ruling last week that it could pursue a partial judicial review of the CAC’s decision as a human rights issue, TechCrunch’s Natasha Lomas reported on Thursday:
[T]he judge only gave permission for a judicial review on “limited grounds”, relating to whether certain categories of self-employed individuals should have the ability to unionize. “We have been given permission to argue that Deliveroo is breaching the human rights of our members. This is no longer an employment rights matter, this is a human rights matter,” a union rep said outside court after the ruling. …
Maine was one of several US states where voters passed measures to legalize the use of marijuana for recreational purposes in 2016. Republican Governor Paul LePage has sought to stymie legalization by blocking implementing legislation. Last November, LePage successfully vetoed the first version of this legislation, and late last month attempted to veto a second version, but both houses of the state congress voted on May 2 to override his veto, UPI reported. The rules in the final bill are somewhat less permissive than those initially approved by voters with regards to the regulatory mechanisms under which legal marijuana can be grown and distributed in the state.
Other aspects of the voter-approved ballot measure, such as its provision protecting marijuana users against employment discrimination, have already gone into effect. That provision, which went into effect February 1, prohibits employers from refusing to employ or otherwise penalizing anyone over the age of 21 on the basis of their using marijuana, provided they are not using it during working hours or on the employer’s property. That has significant consequences for Maine employers’ drug policies, as a positive test for marijuana would no longer be sufficient cause for terminating an employee (current testing methods can only detect whether an individual has consumed cannabis within the past few weeks, not whether they are currently under the influence).
The implementing legislation, however, contains different language regarding how employers can and cannot treat employees who use marijuana, Seyfarth Shaw attorneys observe at their dedicated marijuana-law blog, The Blunt Truth:
Connecticut Governor Daniel Malloy signed a bipartisan bill into law on Tuesday that will restrict employers in the state from asking candidates for their salary histories, the CT Post reported:
Called the pay equity bill, the new law prevents employers from asking job candidates about their salary history before extending them an offer. Supporters say that question often results in lower starting pay for women and people of color. In 2016, Connecticut women made 79 cents on the dollar compared to men, according to the National Women’s Law Center. Over a lifetime, women made $529,160 less than their male counterparts, on average.
Connecticut’s new law leaves some questions unanswered for employers, Proskauer attorneys Allan Bloom and Laura Fant note in a more detailed overview of the ramifications for employers. The law permits employers to ask about “other elements of a prospective employee’s compensation structure” than wages, but not the value of those elements. The law does not define the scope of these other elements, however, so Connecticut businesses may seek clarification on this question from the state’s labor department.
With the signing of this law, which goes into effect January 1, Connecticut will becomes the sixth US state to ban salary history inquiries: Massachusetts was the first to do so in 2016 (though the effective date of that law has been delayed until July 1 of this year), followed by California, Delaware, Oregon, and most recently Vermont. New York Governor Andrew Cuomo has also put forward a bill that would ban these inquiries. New Jersey’s recently-enacted equal pay law does not prohibit them, but makes it easier for employees to demonstrate pay discrimination in a lawsuit.
In a 5–4 ruling handed down on Monday, the US Supreme Court ruled that organizations can legally require their employees to sign arbitration agreements in their work contracts and waive their right to resolve labor disputes through class-action lawsuits. The court split on ideological lines, with the five conservative justices voting to allow class action wavers and the liberal minority dissenting, the New York Times reported:
Writing for the majority, Justice Neil M. Gorsuch said the court’s conclusion was dictated by a federal law favoring arbitration and the court’s precedents. If workers were allowed to band together to press their claims, he wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”
Justice Ruth Bader Ginsburg read her dissent from the bench, a sign of profound disagreement. In her written dissent, she called the majority opinion “egregiously wrong.” In her oral statement, she said the upshot of the decision “will be huge under-enforcement of federal and state statutes designed to advance the well being of vulnerable workers.” Justice Ginsburg called on Congress to address the matter.
The ruling, which the Times adds could affect some 25 million employment contracts, comes nearly a year and a half after the high court agreed to hear a group of cases on the legality of arbitration clauses and class action waivers. It was not unexpected, given the court’s conservative majority and the inclinations Gorsuch and his right-leaning colleagues have shown in other labor-related cases.
Business groups and employer-side attorneys cheered the ruling, which they say will free companies from burdensome litigation and allow disputes to be resolved through the cheaper and speedier process of arbitration. Labor rights advocates expressed dismay, however, warning that it would result in a rollback of employees’ fundamental rights and would prove particularly disastrous in discrimination and harassment cases. In a Times op-ed, Terri Gerstein and Sharon Block, of Harvard Law School’s Labor and Worklife Program, criticize the ruling for taking away a key safety net for employees: